December 1996 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

DRUG TEST? WHAT DRUG TEST?

As the holiday season approaches, we look forward to sharing time with friends and family. In this issue, let's look at a recent court case that allowed a civil service employee to continue to share time with his co-workers by overturning his termination.

In a case of particular interest concerning drug testing, Lewis v. Doherty, (Supreme Court, First Department, Oct. 28, 1996) a Sanitation Worker successfully sued New York City for terminating him after a positive drug test because he was not afforded a hearing prior to termination. This employee had resigned from his position to move out of state with his family. The Employee then had second thoughts and applied for reinstatement within a year of his resignation. The City agreed to rehire him but stated that he would be subjected to a probationary period. When he returned to work he and 16 other employees were randomly selected for a drug test.

Thereafter, the City advised the employee he failed the drug test and was therefore terminated without a hearing since he was a probationary employee. The employee then brought suit claiming that he was not a probationary employee, that there must have been a mistake in the urine sample and that he was entitled to a hearing before being terminated.

The Court held that a probationary employee generally is not entitled to a pretermination hearing unless the employee demonstrates that the dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law, Matter of York v. McGuire, 63 NYS2D 760. It also stated that hearings are granted to probationary employees who are stigmatized as a result of the municipality's actions, Reeves v. Golar, 45 AD2d 163.

The rule stated in Reeves was that "where the termination was not due to the failure to perform satisfactory service during the probationary period, but was due to causes unrelated to work performance, such as suspicion of narcotics addiction, the 14th Amendment to the U.S. Constitution may mandate a full pre-termination hearing."

Furthermore, "where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential."

Therefore, if the stated reasons for discharge will stigmatize and may affect the person's prospects for future employment, a hearing is warranted. With that, the Court ordered the employee reinstated so that a hearing could be held to determine if the urine was that of the employee, to also determine if he was a permanent or probationary employee and whether he was entitled to rehabilitation rather than termination.

The current CBA between CSEA and the County of Nassau has a section on "reasonable suspicion" drug testing. So far there have been no cases testing the language or rights of employees of the County who are drug tested.

The lesson is: if you are able to perform your job satisfactorily and you are terminated for reasons that do not have to do with actual job performance, the Courts now believe you have a right to a hearing prior to termination.

LAYOFF LAWSUIT UPDATE:

In January, 1996 we made a motion in the CSEA lawsuit concerning the layoffs seeking the following: 1. Extension of all competitive class preferred lists through December 31, 1996; 2. Permission to amend our complaint to amplify the Torre allegations; 3. Class action status be granted; and 4. That all similarly situated employees as Mr. Torre be granted the same relief as Mr. Torre, i.e., reinstatement with back pay to the date the Board of Supervisors "properly" abolished their position.

Recently, the Court rendered a decision granting the extension of the preferred lists, granting permission to amend the Complaint, denied class action status at this time and did not decide the issue of reinstatement for all similarly situated employees.

Upon receipt of the signed order of the Court, we will be moving to reargue and appeal those portions of the decision that denied class action status and failed to address the reinstatement of similarly situated employees.