Court Report

FMLA reinstatement must be immediate; OSH Act covers picnic hazard; internal complaints may qualify for whistle-blower protection.

By Maria Greco Danaher Dec 1, 2004

HR Magazine, December 2004

OSH Act Covers Picnic Blowup

Safeway Inc. v. OSHA Review
Commission, 10th Cir., No. 03-9546, Sept. 7, 2004.

An employer violated the general duty clause of the Occupational Safety and Health Act (OSH Act) when two employees were injured at a company barbecue in an explosion caused by the use of a 40-pound propane gas tank with a grill designed for only a 20-pound tank, the 10th U.S. Circuit Court of Appeals has held.

The general duty clause, 29 U.S.C. Sec. 654(a), requires employers to provide employment and a workplace free from recognized hazards likely to cause death or serious injury. This catch-all provision covers hazards that are not specifically addressed by any particular safety regulation.

Safeway operates a bread-baking facility in Denver, where it periodically holds company-sponsored outdoor barbecues for its employees. To ensure that the company’s grill had sufficient gas, Safeway purchased a 40-gallon tank even though the grill was equipped for only a 20-gallon tank. The 40-gallon tank contained clear warnings indicating that it should not be used with grills equipped for 20-gallon tanks.

During a July 1998 barbecue, the plant superintendent instructed the plant engineer, Jerry Lewis, to set up the grill. The grill was not working well, so Lewis and Fred Lake, the maintenance foreman, tinkered with the tank to improve gas flow. Leaking propane then ignited, severely burning Lewis’ hand and singeing Lake’s facial hair.

The Occupational Safety and Health Administration (OSHA) cited Safeway for violating both the OSH Act’s general duty clause and an OSHA regulation concerning gas regulator assemblies. Safeway contested the citation.

An administrative law judge (ALJ) determined that the regulator-assembly regulation was not applicable, but upheld the citation based on the general duty clause. On review by the Occupational Safety and Health Review Commission, the two sitting commissioners could not agree on the appropriate resolution of the case, so the ALJ’s decision became the commission’s final order. Safeway appealed.

The 10th Circuit affirmed the final order, finding that the secretary of labor has jurisdiction under OSHA’s general duty clause to regulate a company’s outdoor barbecue. Rejecting Safeway’s argument that the barbecue was not a condition of employment covered by OSHA, the court ruled that because plant engineer Lewis was on Safeway’s property and instructed by his supervisor to attend to the grill, both his activities and the hazardous condition were within OSHA’s coverage.

The warning labels on the 40-pound tank and the fact that Safeway had to use a special adapter to hook the larger tank to the company’s grill demonstrated an obvious hazard that Safeway was required to avoid, the court held.

By Edwin A. Keller Jr., an attorney with the firm of Kamer Zucker & Abbott in Las Vegas, an affiliate of Worklaw Network.

Reinstatement Delay Violates FMLA

Hoge v. Honda of America Manufacturing Inc., 6th Cir., No. 03-3452, Sept. 16, 2004.

Upon being medically cleared to return to work following a leave of absence covered by the Family and Medical Leave Act (FMLA), an employee is entitled to immediate reinstatement to her own or an equivalent position, the 6th U.S. Circuit Court of Appeals recently held.

Lori Hoge was a production associate on the door line at an Ohio Honda plant. In April 2000, Hoge requested, and received approval for, FMLA leave for the period May 11, 2000, until June 12, 2000, to undergo abdominal surgery. Honda later granted Hoge two extensions of her leave, but there was some confusion as to the end date of the leave. After receiving a medical release, Hoge reported to work on June 27, 2000. She was told that no positions were available in her department. Honda did not identify a suitable position for Hoge until July 26, 2000, and she resumed work on July 30, 2000.

Hoge sued Honda, alleging that the delay in reinstatement interfered with her FMLA rights. The district court agreed and awarded Hoge monetary damages, attorneys’ fees and costs. Honda appealed.

On appeal, Honda contended that it was obligated only to reinstate Hoge within a “reasonable time” after she was capable of returning. The court rejected that argument, honing in on the FMLA’s mandate that an employee returning from leave “shall be entitled, on return from such leave,” to her prior or an equivalent position.

The 6th Circuit concluded: “The plain meaning of ‘on return from such leave’ is not ambiguous … and will not be construed to mean ‘within a reasonable time after the employee is able to return from such leave.’ If an employee returning from FMLA leave can perform the essential functions of his previous or an equivalent position, the right to restoration is triggered on the employee’s timely return to work.”

FMLA regulations provide that employers are entitled to reasonable notice of an employee’s return—at least two business days, where feasible. Because Honda and Hoge disagreed as to whether or when Honda received Hoge’s notice, the court sent the case back to the trial court for further proceedings.

By Lawrence Peikes, an attorney with the firm of Wiggin and Dana LLP in Stamford, Conn.

Internal Complaints May Support Whistle-Blower Claim

Fanslow v. Chicago Manufacturing Center Inc., 7th Cir., No. 03-2111, Sept. 20, 2004.

The 7th U.S. Circuit Court of Appeals has held that internal complaints can constitute conduct protected by the whistle-blower provision of the federal False Claims Act (FCA).

The FCA imposes a civil penalty and treble damages on any person who presents a fraudulent claim for payment or approval to the U.S. government. To assist in its enforcement, the FCA permits private individuals to sue on behalf of the government in a qui tam action. The FCA also authorizes any employee who experiences adverse employment actions because of involvement in an FCA action to bring a separate whistle-blower claim.

Chicago Manufacturing Center Inc. (CMC) is a nonprofit corporation that provides consulting services to small and medium-sized companies in the Chicago area. William Fanslow was hired by CMC in 1996, eventually becoming the company’s director of information technology.

Sometime in 1999, Fanslow became aware that CMC’s vice president had developed a for-profit dot-com spin-off, called MFR.Net, that would offer certain services to CMC’s clients. Fanslow became concerned, because he believed—on the basis of a conference presentation by a federal official—that the use of CMC funds to develop a for-profit company was unlawful.

Fanslow expressed his concerns to three CMC executives, and over time—along with other CMC employees—continued to question the development of MFR.Net. At one point, Fanslow was directed to fire one of the employees who had expressed concerns, but he refused to do so.

Shortly afterward, Fanslow was put on a performance action plan, ostensibly for subpar performance. The plan expired in October without incident, but in December, Fanslow was fired after using an obscenity toward a subordinate.

Fanslow sued CMC, alleging that his termination was based on his complaints about MFR.Net. The trial court granted summary judgment in favor of CMC, holding that Fanslow’s claim that he had engaged in protected activity was weak. The 7th Circuit, however, reversed and sent the case back to the trial court to reconsider the issue of protected activity.

The court pointed out two issues of particular importance:

  • First, employees need not have actual knowledge of the FCA for their actions to be considered “protected activity.” The issue is whether the employee had reason to believe that the employer was committing fraud against the government. In this case, Fanslow believed that CMC executives were defrauding the government by diverting CMC’s nonprofit funds to a for-profit entity in which the executives had a personal stake.

  • Second, the court found that Fanslow’s internal complaints could be considered protected activity so as to qualify for whistle-blower protection.

By Maria Greco Danaher, an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.


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