Basic Employment Law Fact - Judges Fly Too

Over the years I have noted that in employment law cases involving airlines, particularly if flight safety might be involved, the plaintiff often loses. I have attributed this to the fact that judges also fly. Nothing in yesterday's decision in Frank v. Delta Airlines (5th Cir. 12/3/02) challenges that rule. An aircraft mechanic's urine sample showed traces of an adulterating substance. Delta treated it as a refusal to take a drug test, terminated him and reported him to the FAA. He sued for negligence, intentional infliction of emotional distress and defamation. Fortunately for Delta, the 5th Circuit found that all the common law claims were pre-empted by the comprehensive drug testing scheme implemented by Congress in the Transportation Employee Testing Act and subsequent FAA regulations. Any recourse would be an administrative one, not through common law causes of action. So once again, air safety prevails! Now if they could just do something about the tape on United's planes.

SOA Confidential Reporting Requirement - An Internet Solution?

Probably not the last, but one company is out to provide an internet solution for the Sarbanes-Oxley requirement that audit committees of publicly traded companies establish a "confidential, anonymous submission by employees of the issuer of concerns regarding questionable accounting or auditing matters." Interestingly, the executive team of Ethicspoint includes a former Deloitte partner and the former General Counsel of Ernst & Young.

Cell Phone Use - Employer's Next Liability?

The news the last couple of days has been full of cell phone stories. First, a Harvard survey is being reported as having concluded that 6% of all U.S. auto accidents are caused by drivers talking on their cell phones. Nedra Pickler's AP story was picked up by the Washington Post among others. And then Jonathan Glater of the NY Times weighs in with how employers are the deep pockets those 6% are pursuing. There are already some big settlements, which means more suits are sure to come. Glater gets some different views on the pro's and con's of having a policy about cell phone use. (First, let's start by banning them in restaurants!)

HR Nightmare: Special Diversity Program, Successful OFCCP Audits, but Now A Certified Class of 2500 Black Employees

Nothing would be worse for an HR Director than to have implemented a long running diversity program, come through several OFCCP audits, including a glass ceiling one in good shape, and still find yourself the subject of a class action for racial discrimination. Even more chilling were the words of the District Judge in certifying the class of over 2500 current and former employees:

Plaintiffs have made a 'significant showing' . . . that Sodexho's lack of uniform promotion policy or guidelines has had a disparate impact on the promotion of African-American employees, and has enabled or even fostered an environment at the company in which officials intentionally discriminate against blacks by denying them promotions to upper-level managerial positions.

A large number of companies' promotion practices, might be found to be less than uniform. The details of the case were laid out by Neely Tucker in a Washington Post article this past week end.

Alabama Supreme Court Enforces Arbitration Agreement

Overruling a lower's court refusal to compel arbitration, the Court found that at will employment can be a satisfactory basis for an arbitration agreement, that the fact the employment has ended does is not a sufficient ground to avoid the arbitration and in determining whether or not interstate commerce is involved, and thus the FAA is applicable, the focus is on the scope of the employment not the dispute. Ameriquest Mortgage Co., Inc. v. Bentley, No. 1011791 (Ala. 11/27/2002).

Arbitrator's Power to Sanction Lawyer Limited by Maryland Court

Courts are becoming more concerned about the pervasiveness of arbitration agreements, particularly in employment and consumer settings. A Maryland court noted those concerns as it set aside an arbitrator's award of attorneys fees and sanctions. MCR America v. Greene (Md. Ct. of Spec. Appeals 11/26/02) [pdf]. The agreement between the parties did not allow the award of attorneys fees, so the arbitrator was acting outside the scope of the agreement to award them. And there were numerous grounds for setting aside sanctions against one of the parties' counsel, including that he was not a party to the arbitration agreement. As, or perhaps if, arbitration becomes more common, courts will be faced with more questions about the scope of an arbitrator's power and the interaction with judicial oversite.

Post-Thanksgiving Announcement

Turning blogging rituals backwards, rather than announce a future period of no postings, since the last posting of 11/21 I have been on a wonderfully relaxing trip to San Francisco and the Wine Country, ending up with a 3 day stay at The Inn at Occidental. The innkeeper, Jack Ballard, a former legal administrator has clearly gone to a higher calling! And if you are headed that way, I couldn't recommend his Inn or the trip highly enough. In fact, even if you weren't planning on heading that way, I would suggest you do so.