Employers with random drug testing policies, that rely on a positive hair test result alone to meet the Civil Service “just cause” standard for disciplining an employee, need to take particular note of a recent Appeals Court decision upholding the Civil Service Commission’s decision to overturn the dismissal of six Boston police officers, and sustain the dismissal of four others. Thompson et als v. Civil Service Commission and Boston Police Department , 90 Mass. App. Ct. 462 (2016). The Supreme Judicial Court declined the City’s request for further review.
All of the plaintiffs failed random drug tests (for cocaine) required in the City’s Union contract with the Boston Police Patrolmen’s Association (BPPA). But the Commission found, and the Court agreed, there was not just cause to dismiss the officers on the basis of failing the drug test alone, because the hair testing was not proved to be conclusive on the issue of voluntary ingestion and could have reflected “sample contamination by environmental exposure.”
The six officers who prevailed had initial cocaine levels barely above the cutoff limit, offered evidence of negative independent tests, and provided a “credible denial of drug use,” including their testimony and additional supporting evidence. The successful plaintiffs will get 10-15 years’ worth of back pay and benefits. In contrast, the officers who did not prevail had higher levels in the initial and confirmatory test, two did not do an independent test, and their testimony denying usage was not deemed credible.
The Court’s rationale — that the Union contract could not dictate dismissal because it cannot supersede the Civil Service “just cause” requirement — is troubling: It limits employers’ ability to negotiate and enforce policies with specific disciplinary consequences agreed to by our unions.
