by Michael Fox
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.