Beware

1. The company and or their agents erased the tapes of conversations the fired man had with crew scheduling, and HR, thus preventing him from establishing his argument that the testing was unlawful and coercive. Destroying evidence in a legal proceeding intentionally or negligently, is a serious act that could merit punitive damages for a plaintiff. A jury instruction may be given telling the jury that they may assume the erased tapes contained evidence favorable to the plaintiff.
2. The company changed the content of their company drug and alcohol manual after the incident, thus trying to get the manual to support the discharge and clean up their act. In the law this is called subsequent remedial conduct and can be used to advantage by a plaintiff. The HR people concerned are the ones who should be sanctioned by the company not the captain.
3. The company violated its own regulations and those of the FAA regarding testing procedures. There was absolutely no randomness about this test. The captain was targeted for the test specifically as soon as he arrived. (He already had his pre-employment drug and alcohol testing some months before.)
4. The company failed to notify the FAA of the allegedly random positive test within two working days of the event. Section V. C. (1) (2) (3) of FAR 121 Appendix J. This was discovered by FAA auditors who were examining the company’s drug testing records during a scheduled visit to the home office months after the testing incident. The company said this was simply an accidental oversight on its staff’s part. The company may not have ever reported this case and perhaps hoped it would just go away. Is it possible that its failure to inform the FAA was involved with the sensitive nature of the test administered to the captain? Perhaps it was still concerned about the validity of the test and events surrounding the sorid affair?

Random testing

The regulations state that random tests will be conducted while the employee is performing a safety-sensitive function, just before the employee is to perform safety-sensitive functions, or just after the employee has ceased performing safety-sensitive functions.

This language has been interpreted in a variety of ways but it is generally left up to the air carrier to determine the time frame for the random test … The language … just before … for example is usually applicable for pilots when they appear on site for a flight. Many airlines only perform random tests on pilots at the airport site. The same would be true for a mechanic …that is, when he appears at the job site for work. Typically, just before can mean as much as two hours or even less in some cases. When it comes to sanctions a company has discretion under the regulations to apply more stringent requirements than appear in the FARs. For example, in section V, item F (2) of Appendix J, the FAA says that an employer with authority independent of the FAA rules may take any other action otherwise consistent with the law. This has been interpreted to mean that the FAA rules can be enhanced by the employer to make them tougher on employees, including discharge.

FAA action against the employee

When the FAA finally was informed of the positive test it informed the captain that it would seek further investigation of the event and that it would contact him further regarding the matter. Since a pilot is required to have a medical certificate in order to perform his safety-sensitive duty (pilots) he may be grounded (medical certificate is revoked) until he gets a new medical certificate issued after the alcohol test result or refusal to test date.

In this case the FAA received notice several months after the event (because of the internal audit by FAA inspectors) and proceeded to investigate the company actions. Its findings resulted in the expungement from its records of the positive test! The inspectors just did not conclude that the case merited any action at all. This was good news for the captain but did not provide much relief since he lost his job anyway and the taint of the positive test would follow him for some time to come. A question remains as to whether or not the company has a duty to correct the PRIA report that informed of the positive test.

The district court result

In response to the captain’s complaint the company filed papers asking the court to grant Summary Judgment on the basis that Nevada was an “at will” state. This means that the company could discharge any employee for no reason at all and therefore all of the other facts and circumstances of the case were not relevant. The court agreed and stated that there was no compelling public policy exception to the “at will” rule of Nevada and further that Nevada had not expressed that compliance with federal aviation law is the public policy of the State of Nevada. No other relevant facts and circumstances of the case were even considered.

The Judge said that Nevada would not extend the narrow exception of the “at will” standard to the present situation and granted Summary Judgment to the company. The captain lost!

This was a stunning result that many believe to be out of line with current law.

An appeal to the 9th Circuit Court of Appeals is pending. Your thoughts and comments are welcome at aerolaw@worldnet.att.net.

Nevada Fed. District Court No. 2:05-cv-01414 PMP

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran. E-mail: aerolaw@worldnet.att.net