Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing

Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing
Gary Grippo v John P. Martin, 257 AD2d 952

After negotiations with union representatives, the Town of Glenville adopted a drug and alcohol policy in December 1995. The policy included a provision for the random testing of employees for drug and alcohol use. The policy also specified various disciplinary actions to be taken following positive test results. In particular, the policy provided that two positive tests within a 10-year period would result in the employee’s immediate termination.

Gary Grippo, a town employee since 1986, tested positive for drug and alcohol use in August 1996. In accordance with the policy, Grippo was suspended from his employment without pay for 30 days. Grippo tested positive a second time on May 15, 1997. He was informed of the test result and the penalty of termination was imposed.

Grippo challenged his dismissal, contending that by creating an “irrebuttable presumption of [Grippo’s] guilt without affording him the due process of a hearing”, the policy is unconstitutional and violative of Civil Service Law Section 75[1].”

The Appellate Division disagreed and sustained a lower court’s ruling dismissing Grippo’s petition.

The Appellate Division commented that “a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law”.

Accordingly, an employee organization may, pursuant to the provisions of a collective bargaining agreement, waive the employee’s Section 75 and 76 rights.

The decision points out that “both by statute and case law, such a waiver in a collective bargaining agreement of public employee statutory rights in disciplinary matters is not against public policy, and members of the bargaining unit are bound thereby.”

The court found that: (1) Glenville had negotiated with Grippo’s union to enact the drug and alcohol policy, and (2) Grippo was provided with a copy of the policy and expressly agreed to its terms by signing it.
NYPPL