May 1, 2007
of random alcohol and drug testing.

Those of us familiar with the air carrier business know full well the painful results of the “Permanent Bar” resulting from use of alcohol or drugs on the job. It can permanently deprive you of working in a safety sensitive position at any regulated activity. Permanent loss of pilot’s job, mechanic’s job, and others in safety-sensitive positions can happen. Lets refresh our recollections on some of the rules and look at a current case …

The Permanent Bar … FAR 135, 121, 145 certificated activities.

The Drug Bar:

“An employee who has engaged in prohibited drug use during performance of a safety-sensitive function is permanently precluded from performing that safety-sensitive function for any employer.”

FAR 121 Appendix I, VI, F2

The Alcohol Bar:

“An employee who violates 65.46a,(c), 121.458(c), or 135.253(c) or who engages in alcohol use that violates another alcohol misuse provision of 65.46a, 121.458, or 135.253 ... and had previously engaged in alcohol use that violated ... (above provisions) … is permanently precluded from performing for an employer the safety-sensitive duties the employee performed before such violation.”

FAR 121 Appendix J, V, B. The background facts

The new hire was a pilot, but it could have been any other employee, mechanic, flight attendant, or anyone else subject to random drug and alcohol testing. He had received his initial captain’s training and was called from his home for his first planned station assignment. The case describes how he was told to report on a certain day for reserve status starting at 5 p.m. on that day. The company maintained that they told him to report on reserve the day before. The tapes of their conversation were erased by the company so no confirmation of their instruction to him was possible.

The day he checked into the assigned hotel he met an old friend who also worked for the company. They decided to socialize that night and his friend checked in with crew scheduling asking them to confirm that he, the friend, would not be on duty (reserve) until the following evening at 5 p.m. He also confirmed that his friend, the new hire captain, would also start on duty (reserve) the following evening. There are no tapes of this confirmation.

Reserve status sometimes has a dual connotation, either on or off duty depending on the particular circumstances and the company. If one is at home on reserve status this is usually thought of as off duty. If one was at the airport duty station or at the duty station hotel this is considered by many as on duty status.

At 8:30 a.m. the following morning the new man was called at the hotel for a random drug and alcohol test. He stated that he was not on duty (reserve) until 5 p.m. that evening and therefore refused the test. The HR representative disagreed. She maintained that he was to report a day earlier than he had understood. The phone tapes relevant to these conversations were erased by management. He was told he had to take the test or suffer a “refusal,” the result of which is the same as a positive test. He took the test as ordered and it resulted in a .04 BA. He was immediately fired.

The case

Needless to say, the new hire captain was shocked. He knew full well, if allowed to stand, his random positive alcohol test while allegedly on duty, (or “just before” since pilots are not checked while flying), would essentially end his professional flying career which had taken 25 years to develop. He was over 40 years old. He hired a lawyer and proceeded to sue the employer for wrongful discharge.

His lawsuit also included causes of action for defamation and intentional infliction of mental distress. His basis for the defamation allegation was that under the Pilot Records Improvement Act (PRIA 49 U.S.C. 44703 h) the company had informed a subsequent potential employer of the captain’s failed random test and that they knew this to be false because the test was fraudulent. The PRIA report denied him the new job.

The PRIA statute bars a former employee from filing a defamation action or claim against companies for providing this type of detrimental information, but he maintained that since he believed the test was fraudulent the result was false information, therefore the company had defamed him.

The case was initially filed in the State Court of Nevada but was removed to the Federal District Court in Las Vegas by the company based on the federal issues and statutes involved.

Wrongful discharge 101

This event took place in Nevada. Nevada is an “at will” employment state. As such an employer can discharge anybody for no reason at all according to the law. You are employed at the pleasure of your employer. Therefore, it would appear that this man would have no recourse and could not win his case based on a wrongful discharge from his job. However, there are exceptions to “at will” status.

Where strong public policy is involved it should and does create an exception to the rule. This captain maintained that Federal Air Regulations involving public safety, namely the drug and alcohol testing regulations plus all the rules governing their application, clearly involve fundamental issues relating to public safety. Indeed, it was because of the federal rules and questions involved that the case was removed by the employer to the Federal Court. The captain alleged in his complaint that the test was unlawfully administered and thus fraudulent.

The company handbook

All regulated air carriers are required to provide their drug and alcohol handbook to new employees so that they will know the rules that apply to their employment regarding drug and alcohol usage and the penalties for illegal usage. It includes the FARs involved with drug and alcohol testing.

A typical company handbook excerpt regarding random testing that is relevant to this case follows:

Employees will only be tested (randomly) for alcohol while they are at the work site (this could include airports other than our home base). Therefore, a pilot on call for duty while at home has not violated the regulations if he or she has an alcoholic beverage unless he or she reports for duty within eight hours of consuming such alcohol. He or she is not subject to alcohol testing until he or she reports for work. Therefore, if he or she is called to work and has consumed alcohol within the eight-hour time frame he or she would have to decline to report until eight hours has passed with no alcohol consumption. However, a pilot waiting to fly an aircraft in the employee lounge is subject to testing as he or she is immediately available to fly the aircraft.”

If these rules applied to our captain in this case he would not have been subject to the random test that he was forced to take. He could have declined the test until eight hours had passed or until he was required to report for work at 5 p.m. on the day he was called.

Many pilots and others subject to random tests simply do not answer the company’s telephone calls when at home for the obvious reason. If they don’t get the message to report for a test they cannot be faulted for not appearing.

Unlike illicit drugs, alcoholic beverage consumption is not against the law. Hence they can certainly be consumed legally while off duty and or at home. One of the arguments the company would make is that while in the company hotel (therefore not at home) he was subject to testing.

The company’s egregious conduct … punitive damages

This case is one of manifest unjust conduct on the part of the company concerned. A listing of their conduct which argues for punitive damages in addition to other damages, if it ever gets to trial, follows:

  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 [email protected].

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: [email protected]

About the Author

Stephen P. Prentice

Stephen P. Prentice is an attorney with an Airframe and Powerplant certificate, is an ATP rated pilot, and is a USAF veteran. E-mail: [email protected].