Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law

Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law

Lance Carlson v. Charter Communications, LLC, USCA, 9th Circuit, No. 17-35917 

N.B. - In handing down this decision the 9th Circuit said "This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3."

§§50-46-320(4)(b) and 50-46-320 (5) of the Montana Marijuana Act [MMA] neither bars employers from prohibiting their employees from using marijuana nor authorizes wrongful termination or discrimination suits against employers.

After Charter Communications fired one of its employees, Lance Carlson, for his legal marijuana use outside of work, in violation of the company's employment policies set out in its employment handbook, Carlson sued Charter alleging wrongful termination and unlawful discrimination.

A Montana District Court dismissed Carlson's complaint and then refused to certify the question of whether these provisions of the MMA were constitutional to the Montana Supreme Court. Carlson appealed the Montana District Court's ruling.

The United States Circuit Court of Appeals, 9th Circuit, affirmed the Montana District Court's ruling explaining that:

 [1] the MMA does not preclude a federal contractor from complying with all the requirements of the Drug-Free Workplace Act (DFWA), 41 U.S.C. §8102; and 

   [2] the MMA does not violate the Montana constitution.*

The Circuit Court observed that MMA is "rationally related to Montana’s legitimate state interest in providing 'careful regulation of access to an otherwise illegal substance for limited use by persons for whom there is little or no other effective alternative' while avoid[ing] entanglement with federal law.” In addition, the Circuit Court, noting that the United States Congress had adopted an appropriations rider currently restricting the Department of Justice from spending funds to prosecute individuals who comply with state marijuana laws, opined that "this temporary rule does not undercut Montana’s legitimate state interests."

In the words of the Circuit Court, "[t]he district court did not abuse its discretion in denying Carlson’s request to certify the question whether sections 50-46-320(4)(b) and (5) are constitutional to the Montana Supreme Court, because it is not an unclear question of state law appropriate for certification."

Lisa M. Schaffer, Esq., in an article posted on the Internet by FindlLaw,** notes that "A state could have a Marijuana Act that specifically prohibits employers from requiring drug-free employees. For instance, in 2018, Maine became the first state to protect workers and their non-workplace marijuana use by forbidding employers from drug testing for marijuana. Specifically, Maine's Act to Legalize Marijuana forbids employers from discriminating against employees based on their legal marijuana use, though it does allow employers to prohibit the use and possession of marijuana 'in the workplace.'" 

* The Carlson decision is posted on the Internet at:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2018/11/19/17-35917.pdf

** See https://blogs.findlaw.com/decided/2018/11/fired-marijuana-user-cant-sue-employer-in-montana.html?DCMP=cons_top:nwl

Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to §75 of the Civil Service Law

Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to Civil Service Law §75 

O'Connor v Cutting, 2018 NY Slip Op 07379, Appellate Division, Third Department

An Essex County deputy sheriff was served four disciplinary charges pursuant to Civil Service Law §75. The appointed Hearing Officer partially sustained two of the four charges and dismissed all the remaining charges. As to the penalty to be imposed, the Hearing Officer recommended that the deputy sheriff be suspended without pay for two months.

The Sheriff then appointed the County Manager to review the §75 Hearing Officer's findings and recommendation and make the final determination. After reviewing the hearing transcripts and exhibits, the City Manager issued a determination that rejected the §75 Hearing Officer's findings, sustained three of the charges and recommended that the deputy sheriff's employment be terminated.

The Sheriff adopted the City Manager's determination and recommended penalty and terminated the deputy sheriff'. The deputy sheriff challenged the Sheriff's decision and sought a court order annulling the City Manager's determination finding her guilty of the disciplinary charges or, in the alternative, an order vacating the penalty of dismissal imposed by the Sheriff. Supreme Court transferred the matter to the Appellate Division, which affirmed the Sheriff's decision.

Citing Matter of Kuznia v Adams, 106 AD3d 1227, the court explained that "The standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole."

Addressing the deputy sheriff's argument that the City Manager had "improperly substituted his own credibility determinations for those of the Hearing Officer," the Appellate Division said that the credibility determinations of a hearing officer are not binding upon the official charged with making a final determination, "who, in the exercise of his or her duty to weigh the evidence and resolve conflicting testimony, may make different factual findings and conclusions, provided they are supported by substantial evidence."

Finding that the City Manager had provided specific reasons for his credibility determinations that were supported by logical inferences drawn from the testimony and the additional evidence that had been adduced at the hearing and that the deputy sheriff was "the least credible witness," the Appellate Division said it found that the City Manager's "factual findings and conclusions" were supported by substantial evidence.

As to the penalty imposed on the deputy sheriff, dismissal from her position, the Appellate Division said that it found that the penalty of termination was "not excessive."

The court said that a penalty imposed by the appointing authority following a §75 disciplinary hearing must the upheld "unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," with due consideration given as to "whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

Finally the Appellate Division observed that it was mindful that great leeway must be accorded in matters concerning police discipline because "a higher standard of fitness and character pertains to police officers than to ordinary civil servants" and, inasmuch as strict discipline is essential for law enforcement administration, "the penalty of dismissal has been routinely upheld for officers who have disobeyed direct orders."

Here, said the court, "we cannot say that dismissing petitioner from her position as a deputy sheriff for disobeying a direct order shocks our sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07379.htm

Employee terminated for using department vehicle for non-work related purposes

Employee terminated for using department vehicle for non-work related purposes

Dep’t of Transportation v. Mirhosseini, OATH Index No. 916/18

A civil engineer with the New York City Department of Transportation was charged with repeatedly using a Department van for non-work related purposes; altering trip log sheets; misrepresenting his use of the vehicle by omitting entries on the trip log sheets; and failing to follow the directives of his supervisor.

OATH Administrative Law Judge Kara J. Miller did not credit employee’s claim that his supervisor had given him permission to use the van to run his personal errands and sustained those charges.

Judge Miller, however, found that the appointing authority did not prove that the employee falsified his time records or that he fraudulently received compensation for time he did not work.

The ALJ recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence

The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence

Michel v City of Lackawanna, 2018 NY Slip Op 02070, Appellate Division, Fourth Department

James L. Michel, Jr. commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order reinstating "the compensation and benefits" to which he claim he was entitled pursuant to a contract between the parties. Subsequently Michel moved for summary judgment on the ground that he was unlawfully denied the procedural protections due to him under §75 of the Civil Service Law.

Section 75 provides that certain civil servants "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges."

Supreme Court denied Michel's motion for summary judgment and he appealed the court's decision. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained that "[i]t is well settled" that §75 of the Civil Service Law "prescribes the procedures for removal of a protected employee charged with delinquencies in the performance of his [or her] job."

Citing NYS Office of Children and Family Services v Lanterman, 14 NY 3d 275, the Appellate Division said that it is undisputed that Michel "did not engage in any conduct that would have subjected him to allegations of incompetence or misconduct" and concluded that §75 of the Civil Service Law was inapplicable in his situation.

In Lanterman the Court of Appeals held that the grievances brought by two employees, Lanterman's and Ortiz's, challenging their dismissal from their respective positions were not subject to arbitration because Lanterman's and Ortiz's dismissals were not for disciplinary reasons but because the employees' lacked the qualifications necessary for their respective positions. 

In addition, the  Court of Appeals noted it "approved the distinction made by the Appellate Division in Mandelkern v City of Buffalo, 64 AD2d 279, between issues of 'job performance, misconduct or competency,' which are subject to Civil Service Law disciplinary procedures, and 'a qualification of employment,' which is not."

The Michel decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02070.htm

The Lanterman decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2010/2010_02432.htm

Employee terminated for using department vehicle for non-work related purposes

Employee terminated for using department vehicle for non-work related purposes

Dep’t of Transportation v. Mirhosseini, OATH Index No. 916/18

A civil engineer with the New York City Department of Transportation was charged with repeatedly using a Department van for non-work related purposes; altering trip log sheets; misrepresenting his use of the vehicle by omitting entries on the trip log sheets; and failing to follow the directives of his supervisor.

OATH Administrative Law Judge Kara J. Miller did not credit employee’s claim that his supervisor had given him permission to use the van to run his personal errands and sustained those charges.

Judge Miller, however, found that the appointing authority did not prove that the employee falsified his time records or that he fraudulently received compensation for time he did not work.

The ALJ recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests

Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests

Rockland Co. Correction Officers BA and Rockland Co., 30 PERB 3019

The Correction Officers' Benevolent Association of Rockland County filed an unfair labor practice charge with PERB complaining that the Rockland County Sheriff had issued a directive that unilaterally ended a procedure under which all written leave requests were routinely approved regardless of the number of officers on leave from the same shift.

The Association also charged that for the first time "a quota" on the number of officers permitted to take certain types of leave simultaneously was unilaterally imposed.

PERB sustained the administrative law judge's dismissal of the charge. It noted that the relevant collective bargaining agreement provided that "personal leave may be drawn only upon written request ... at a time convenient to and approved by the Sheriff; provided, however, that personal leave allowed for religious observance shall be granted on the days and hours required, insofar as the same may be granted without interference with the proper conduct of government functions."

PERB said that the contract gave the Sheriff broad discretion to grant or deny leaves based on his convenience and the proper conduct of government functions and that the Association had waived its right to complain about the Sheriff's exercising his discretion.

PERB concluded that the directive issued represented the exercise of a negotiated right, it was bilateral in nature and did not violate the employer's duty to bargain, which had been previously satisfied by agreement.

Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties

Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties

Brown v Bratton, 2018 NY Slip Op 07541, Appellate Division, First Department

Subdivision 1 of §72 of the Civil Service Law, Leave for ordinary disability, provides, in pertinent part, that "[w]hen in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workers' compensation law, the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction. Written notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position shall be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

Supreme Court denied Lisa Brown's petition seeking to annul and vacate New York Police Department's [NYPD] decision to refer her for a fitness-for-duty evaluation that ultimately resulted in Brown's suspension without pay for 58 days for "disobeying orders to sign Health Insurance Portability and Accountability Act [HIPAA] releases."

Brown alleged that NYPD had required her "to submit to a fitness-for-duty evaluation without complying with Civil Service Law §72." Supreme Court ruled that NYPD's actions were not arbitrary and capricious and Brown's allegations were not supported by substantial evidence.

The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division decided that Brown failed to show that §72 was implicated in the New York Police Department [NYPD] decision to refer her for a fitness-for-duty evaluation. Although noting that §72 clearly states that "its procedural protections are triggered when an employer has determined that an employee is unfit for duty, at which point the employee is entitled to written notice of the grounds for the determination and an opportunity to challenge those grounds at a hearing," the Appellate Division said that witnesses for the NYPD had testified that, at the time Brown was referred for evaluation, NYPD [1] had not reached this threshold determination and [2] that the purpose of the evaluation was to insure, Brown's "worrisome on-the-job conduct notwithstanding", that she remained fit for duty.

The Appellate Division said that NYPD could not have provided Brown with the written notice to which she claims she was entitled because "it had neither adjudged her unable to perform her duties nor placed her on leave."

In any event, §72.1 vests such decision making in "a medical officer selected by the civil service department or municipal commission having jurisdiction," and requires the appointing authority to provide "[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position ... be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

§72.1 further provides that "[i]f, upon such medical examination, such medical officer shall certify that such employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority shall notify such employee that he or she may be placed on leave of absence. An employee placed on leave of absence pursuant to this section shall be given a written statement of the reasons therefor. Such notice shall contain the reason for the proposed leave and the proposed date on which such leave is to commence, shall be made in writing and served in person or by first class, registered or certified mail, return receipt requested, upon the employee. Such notice shall also inform the employee of his or her rights under this procedure. An employee shall be allowed ten working days from service of the notice to object to the imposition of the proposed leave of absence and to request a hearing."

In contrast, §72.5 provides that "if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it may place such employee on involuntary leave of absence immediately."

As to suspending an employee "for disobeying orders to sign HIPAA releases," it would appear that such an offense would result were the employee to decline to sign a HIPAA release requested by the medical officer selected by the civil service department or municipal commission having jurisdiction to evaluate the employee.

The Appellate Division found that NYPD's orders "were tailored to receive information from the medical providers that [Brown] had identified and, moreover, were further limited by subsequent agreement."

NYPD, said the court, "showed that the disclosure they ordered [Brown] to provide was appropriate in light of public safety considerations in view [of Brown's position as a] Supervisor Police Communication Technician, insuring that emergency 911 calls were immediately and accurately routed to the appropriate emergency responders, implicated public safety issues, giving the NYPD an interest in the records sufficient to outweigh [Brown's] privacy rights," citing O'Connor v Pierson, 426 F3d 187.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07541.htm