June 10, 2004

OSHA: Fifth Circuit Sounds Alarm on General Duty Clause Violation

Holland & Knight Alert
Howard Sokol


Supreme Court Sets Uniform Four-Year Limitations Period for §1981 Racial Discrimination Claims

The United States Supreme Court recently held in Jones v. R.R. Donnelly & Sons that a four-year federal statute of limitations applies in cases brought under 42 U.S.C. §1981, the post-Civil War statute prohibiting race discrimination. Previously, state law personal injury statutes of limitation applied in most states, with the time period ranging from one year upwards. This decision ends the differences under state laws and provides plaintiffs more time than the statutes of limitations in most states had provided. Many employees who have race discrimination claims under title VII of the Civil Rights Act of 1964 bring them concurrently with §1981. This case assures them of sufficient time to bring both claims, even when the EEOC fails to conclude its investigation and issue a Notice of Right To Sue before the former §1981 time elapsed. The change is significant because §1981 provides for damages and a jury trial in race discrimination cases without either the Title VII caps or the need for any requirement to exhaust administrative remedies.

Family and Medical Leave (FMLA)

Employer Liable for Failing to Notify Employee of FMLA Rights


An employer was found to have interfered with an employee’s rights under the FMLA when it fired the employee upon his return from a medical absence, despite the fact that the employee violated a “last chance agreement” requiring him to report to work every day. In Conoshenti v. Public Service Electric & Gas Co., the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE) held that the employee’s rights under the FMLA trumped the employer’s rights to enforce a “last chance agreement” requiring perfect attendance when the employee’s absence was caused by a serious injury that required surgery. Previously, the employee had been disciplined for keeping inaccurate time records and leaving his shift early. The “last chance agreement” warned the employee that any failure to report to work on time would result in his immediate dismissal. The court focused on the employer’s failure to notify the employee about FMLA leave once it learned of his injuries. This decision serves as a reminder to employers to advise employees about the FMLA as soon as they become apprised of a medical absence that may qualify for protected leave under the Act, regardless of any other attendance issues that the employee may have.

Occupational Safety and Health (OSHA)

Fifth Circuit Sounds Alarm on General Duty Clause Violation

Howard Sokol

In Grey Wolf Drilling Co. LP, Rig 865 v. OSHRC, the U.S. Court of Appeals for the Fifth Circuit (LA, MS, TX) affirmed OSHA’s citation of a Texas drilling company for violating the general duty clause when the company failed to equip its winch truck with an audible backup alarm and an employee was struck and killed when the truck backed across the worksite. The employer, an oil and gas exploratory company, argued that the Secretary of Labor’s abatement measures, including having employees walk alongside reversing trucks to guide the drivers through a clear path, were not feasible, and that the deceased employee engaged in unpreventable employee misconduct by not ceding the pathway to the reversing truck, a company work rule. Grey Wolf Drilling’s arguments were rejected and the abatement measures were found both feasible and recognized in the oil drilling industry as acceptable means to avoid the hazards associated with reversing trucks. In addition, the Fifth Circuit agreed that the company’s general warnings to its employees concerning being aware of reversing trucks were insufficient to prevent accidents from occurring, suggesting that such a defense must fail in the absence of a safety program to adequately address the particular hazard.

State Issues

Massachusetts Employers Lose Jury Trial Right After Agency Decides Discrimination Claims

In Stonehill College v. MCAD, the Supreme Judicial Court overruled Lavelle v. Massachusetts Commission Against Discrimination and held that an employer loses its right to a jury trial after an MCAD hearing, even though the employee can force the employer to defend itself at the MCAD rather than in court. Accordingly, If an employee chooses to proceed in Superior Court under Section 9 of the statute, then both employee and employer have a right to a jury trial. However, if an employee waives his or her jury trial right and chooses instead an administrative hearing at the MCAD under Section 5 of the statute, then the employer is stuck at the MCAD and loses its right to a jury trial.

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