"Spin Control"
by
Charles M. Finkel, Esq.

   Spin control used to relate primarily to inputs of rudder, aileron and elevator as a means to recover from an aerobatic maneuver, either intentionally or erroneously entered into. Today, however, the term relates more to political manipulation, than aeronautical maneuvering. Simply put, spin control relates to placing yourself in the best light, no matter what the circumstances.
   Pilots must now exercise spin control not only to avoid tragic consequences to the aircraft, and all on board, but to maintain integrity in their employment records as well. This is not to say that pilots should lie, or misrepresent the truth to enhance their reputation. It should be kept in mind, however, that today it is more important than ever to make absolutely certain a pilot's employment history remains free of adverse comments or incidents, which could hinder future employment opportunities.
   During the late 1980s and early 1990s, several accidents involving Part 135 operators and major carriers shed light on the fact that the pilots responsible for operations of the aircraft when they crashed, either misrepresented their job history, or did not make it known to their employer that their past history was not entirely rose colored. In response, on October 9, 1996, President Clinton (somewhat of a master of spin control himself)approved the Federal Aviation Reauthorization Act of 1996, which includes the Pilot Records Improvement Act. In its simplest form, the Act requires all air carriers, Part 135 included therein, to request FAA records, air carrier records, national Driver Register Records, and certain other records before hiring any job applicant. The job history records date back to 5 years preceding the date of the employment application.    Safeguards included within the Act are:
1) The records may only be used to assess the qualifications of an applicant in determining whether or not to hire him/her. The air carrier must protect the privacy of the applicant, and make certain the records are not divulged to those not directly involved in the hiring decision.
2) The pilot applicant is to receive notice of the records request and may obtain copies of the records. Notice must be provided to the applicant on or before the 20th day following the date of receipt by the air carrier or other person.
3) The pilot applicant has the right to review the records and correct inaccuracies. Records shall be made available within a reasonable time period.
   Occasionally I receive inquiries as to what type of recourse can be brought against a former employer for providing inaccurate or misleading information to the potential hirer. The Act specifically limits liability. Further, there is a preemption clause that prohibits use of more lenient or liberal State laws. As stated within the Act:

"No action may be brought by or on behalf of an individual who has applied for or is seeking a position with an air carrier as a pilot and who has signed a release from liability . . ."
   Well, you say, what if I don't sign a release from liability? The Act covers that as well when it requires the air carrier to obtain written consent to the release of records from the applicant. The consent form may require the applicant to sign a release which absolves it of any liability associated with the furnishing of the records. This release will more often than not cover both the prior employer, as well as the hiring air carrier. Any company that does not request a release to be signed is acting quite foolishly, indeed. However, this does not grant leeway for the former employer or hiring company to furnish information which is known to be false, "and was maintained in violation of a criminal statute of the United States."
   If a pilot applicant feels that the information contained within his or her employment file is false or inaccurate, the matter should be acted upon at once. It is a good practice to request a look at your personnel file on a regular basis to keep tabs on what is in it. If an unfavorable remark is made by a supervisor, check pilot, etc., and you believe there are reasonable grounds to dispute the comments, do so. Make certain that everything you do is in writing, and demand that your written comments be contained within the employment file. However, if you do so, make certain that you use proper grammar and correct spelling. If when it comes to the job interview an air carrier sees your sloppy penmanship in the file, it could be the difference between a job and a trip home. Use a computer word processing program with spell check, and grammar check, if you have it. When I taught a college level aviation law course, I was amazed at how poorly students wrote. Spelling and grammar were overall atrocious. Remember, you are always judged by the words you use, even when it comes to pilot jobs.
   If you are presented with an unfavorable review, and then requested to sign it, don't! It should only be signed after a response is provided by you in writing as to why you believe the comments were uncalled for. As pilots, we are taught to plan ahead, right? Do the same with your career. We now know that employment files will be scrutinized, so make sure your file is as neat and up to date as your Jepp. manual.
   I must relate one story, which may affect many of you who are just getting started on the road to a piloting career. It is common to see Part 135 charter operations, or air carriers, offer the opportunity to build flying time. If can be a win-win situation. The carrier gets a co-pilot who not only legalizes the flight, but helps pay for it as well. The co-pilot gains valuable experience and logable time. But, under the Pilot Records Improvement Act, unfavorable relations which develop at this crucial beginning stage of a piloting career can change that road to a dead end.
   The young pilot I came into contact with had paid over $50,000.00 to a company, which allowed him to first fly single engine Part 135 work, and later multi-engine work. He was a hard worker, and truly had the company spirit. But for whatever reason, he rubbed a couple check pilots the wrong way, and then suffered the consequences. For what I believe was an improper reason, he was suspended. His overbearing managers made life miserable. This, after paying so much money, and putting in considerable time and sweat. With a suspension in the file, as well as negative comments on his piloting skills, what reputable carrier would hire him? My recommendations were to negotiate withdrawal of the suspension and placing of neutral comments and recommendations in the file, in return for his voluntary resignation. I don't know what ultimately happened, since we parted ways before the matter was resolved.
   This type of event is not a rarity. It is very difficult to have an employer alter his employee files, since it may come back to haunt him. Thus, be very careful about who you work for, and regularly ask to review your files. While the Pilot Records Improvement Act may put more pressure on pilots to make certain they have no blemishes on their records, it well serves the fare paying public. There are bad apples out there who drink and fly, or who simply don't cut the mustard when it comes to airmanship. Those pilots need to be weeded out of the air carrier job application pool, to leave room for those of you who really deserve the chance to live your dream.

TEXT OF PILOT RECORDS IMPROVEMENT ACT OF 1996:
"(f) Records of Employment of Pilot Applicants.--
  1. In general.--Before hiring an individual as a pilot, an air carrier shall request and receive the following information:
    1. FAA records.--From the Administrator of the Federal Aviation Administration, records pertaining to the individual that are maintained by the Administrator concerning--
      1. current airman certificates (including airman medical certificates) and associated type ratings, including any limitations to those certificates and ratings; and
      2. summaries of legal enforcement actions resulting in a finding by the Administrator of a violation of this title or a regulation prescribed or order issued under this title that was not subsequently overturned.
    2. Air carrier and other records.??From any air carrier or other person that has employed the individual at any time during the 5-year period preceding the date of the employment application of the individual, or from the trustee in bankruptcy for such air carrier or person--
      1. records pertaining to the individual that are maintained by an air carrier (other than records relating to flight time, duty time, or rest time) under regulations set forth in--
        1. section 121.683 of title 14, Code of Federal Regulations;
        2. paragraph (A) of section VI, appendix I, part 121 of such title;
        3. paragraph (A) of section IV, appendix J, part 121 of such title;
        4. section 125.401 of such title; and
        5. section 135.63(a)(4) of such title; and
      2. other records pertaining to the individual that are maintained by the air carrier or person concerning--
      1. the training, qualifications, proficiency, or professional competence of the individual, including comments and evaluations made by a check airman designated in accordance with section 121.411, 125.295, or 135.337 of such title;
      2. any disciplinary action taken with respect to the individual that was not subsequently overturned; and
      3. any release from employment or resignation, termination, or disqualification with respect to employment.
    3. National driver register records.??In accordance with section 30305(b)(7), from the chief driver licensing official of a State, information concerning the motor vehicle driving record of the individual.
  2. Written consent; release from liability.--An air carrier making a request for records under paragraph (1)--
    1. shall be required to obtain written consent to the release of those records from the individual that is the subject of the records requested; and
    2. may, notwithstanding any other provision of law or agreement to the contrary, require the individual who is the subject of the records to request to execute a release from liability for any claim arising from the furnishing of such records to or the use of such records by such air carrier (other than a claim arising from furnishing information known to be false and maintained in violation of a criminal statute).
  3. 5-year reporting period.??A person shall not furnish a record in response to a request made under paragraph (1) if the record was entered more than 5 years before the date of the request, unless the information concerns a revocation or suspension of an airman certificate or motor vehicle license that is in effect on the date of the request.
  4. Requirement to maintain records.--The Administrator shall maintain pilot records described in paragraph (1)(A) for a period of at least 5 years.
  5. Receipt of consent; provision of information.--A person shall not furnish a record in response to a request made under paragraph (1) without first obtaining a copy of the written consent of the individual who is the subject of the records requested. A person who receives a request for records under this paragraph shall furnish a copy of all of such requested records maintained by the person not later than 30 days after receiving the request.
  6. Right to receive notice and copy of any record furnished.--A person who receives a request for records under paragraph (1) shall provide to the individual who is the subject of the records--
    1. on or before the 20th day following the date of receipt of the request, written notice of the request and of the individual's right to receive a copy of such records; and
    2. in accordance with paragraph (10), a copy of such records, if requested by the individual.
  7. Reasonable charges for processing requests and furnishing copies.--A person who receives a request under paragraph (1) or
  8. may establish a reasonable charge for the cost of processing the request and furnishing copies of the requested records.
  9. Standard forms.--The Administrator shall promulgate--
    1. standard forms that may be used by an air carrier to request records under paragraph (1); and
    2. standard forms that may be used by an air carrier to--
      1. obtain the written consent of the individual who is the subject of a request under paragraph (1); and
      2. inform the individual of--
        1. the request; and
        2. the individual right of that individual to receive a copy of any records furnished in response to the request.
  10. Right to correct inaccuracies.--An air carrier that maintains or requests and receives the records of an individual under paragraph (1) shall provide the individual with a reasonable opportunity to submit written comments to correct any inaccuracies contained in the records before making a final hiring decision with respect to the individual.
  11. Right of pilot to review certain records.--Notwithstanding any other provision of law or agreement, an air carrier shall, upon written request from a pilot employed by such carrier, make available, within a reasonable time of the request, to the pilot for review, any and all employment records referred to in paragraph (1)(B) (i) or (ii) pertaining to the employment of the pilot.
  12. Privacy protections.--An air carrier that receives the records of an individual under paragraph (1) may use such records only to assess the qualifications of the individual in deciding whether or not to hire the individual as a pilot. The air carrier shall take such actions as may be necessary to protect the privacy of the pilot and the confidentiality of the records, including ensuring that information contained in the records is not divulged to any individual that is not directly involved in the hiring decision.
  13. Periodic review.--Not later than 18 months after the date of the enactment of the Pilot Records Improvement Act of 1996, and at least once every 3 years thereafter, the Administrator shall transmit to Congress a statement that contains, taking into account recent developments in the aviation industry--
    1. recommendations by the Administrator concerning proposed changes to Federal Aviation Administration records, air carrier records, and other records required to be furnished under subparagraphs (A) and (B) of paragraph (1); or
    2. reasons why the Administrator does not recommend any proposed changes to the records referred to in subparagraph (A).
  14. Regulations.--The Administrator may prescribe such regulations as may be necessary--
    1. to protect--
      1. the personal privacy of any individual whose records are requested under paragraph (1); and
      2. the confidentiality of those records;
    2. to preclude the further dissemination of records received under paragraph (1) by the person who requested those records; and
    3. to ensure prompt compliance with any request made under paragraph (1).
(g) Limitation on Liability; Preemption of State Law.--
  1. Limitation on liability.--No action or proceeding may be brought by or on behalf of an individual who has applied for or is seeking a position with an air carrier as a pilot and who has signed a release from liability, as provided for under paragraph (2), against--
    1. the air carrier requesting the records of that individual under subsection (f)(1);
    2. a person who has complied with such request;
    3. a person who has entered information contained in the individual's records; or
    4. an agent or employee of a person described in subparagraph (A) or (B);
    in the nature of an action for defamation, invasion of privacy, negligence, interference with contract, or otherwise, or under any Federal or State law with respect to the furnishing or use of such records in accordance with subsection (f).
  2. Preemption.--No State or political subdivision thereof may enact, prescribe, issue, continue in effect, or enforce any law (including any regulation, standard, or other provision having the force and effect of law) that prohibits, penalizes, or imposes liability for furnishing or using records in accordance with subsection (f).
  3. Provision of knowingly false information.--Paragraphs (1) and (2) shall not apply with respect to a person who furnishes information in response to a request made under subsection (f)(1), that--
    1. the person knows is false; and
    2. was maintained in violation of a criminal statute of the United States.
(h) Limitation on Statutory Construction.--Nothing in subsection (f) shall be construed as precluding the availability of the records of a pilot in an investigation or other proceeding concerning an accident or incident conducted by the Administrator, the National Transportation Safety Board, or a court.''.

 
 
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