Conn. decision reinstating employee not a 'free pass' to smoke pot on the job

By Katelyn Kivel | Sep 9, 2016

HARTFORD, Conn. (Legal Newsline) – Firing a pot-smoking employee is not as cut-and-dry as it may seem, at least in Connecticut.

HARTFORD, Conn. (Legal Newsline) – Firing a pot-smoking employee is not as cut-and-dry as it may seem, at least in Connecticut.

Public policy does not necessitate firing an employee caught smoking marijuana in company property, according to the finding in State of Connecticut v. Connecticut Employees Union Independent.

Gregory Linhoff, a 15-year employee working maintenance at the University of Connecticut Health Center, was terminated in 2012 after a police officer observed him smoking marijuana from a glass pipe in a state-owned van. The Health Center cited a lack of belief that Linhoff could be trusted to perform his duties independently.

An arbitrator agreed that Linhoff engaged in misconduct, but in light of 15 years of positive work history and the fact that the Health Center’s drug-free workplace policy permitted termination but did not mandate it, the arbitrator found the firing to be an excessive response.

A trial court granted the Health Center’s motion to vacate the arbitrator’s ruling on public policy grounds, but the state Supreme Court upheld the arbitrator’s decision.

“The decision is not a 'free pass' to employees who want to smoke pot. It’s really an arbitration decision,” Daniel Schwartz, a labor and employment attorney for Shipman & Goodwin, told Legal Newsline.

“For employers of all types, it’s another reminder that arbitration decisions are very tough to overturn. So if you enter into arbitration, be prepared to live with the consequences of the decisions - even if it seems a little ‘out there.'”

The state Supreme Court did state that the misconduct at issue was unacceptable and that its ruling did not condone it, but sided with the decision from arbitration, calling the arbiter’s penalties fair. Schwartz attributed this decision, in part, to a general reticence to overturn arbitration decision and not to any overall attitude shift on marijuana policy.

“Hard to say if it fits trends on marijuana litigation as I don’t think there’s such a thing,” Schwartz said. “Arbitrators have a good deal more discretion in addressing terminations, and it’s not clear or perhaps even likely that a court would find that firing someone for smoking pot was wrong.”

The precedent set in this case in fairly narrow. The court emphasized that public policy allowed for an array of responses, and pointed to the fact that Linhoff’s situation did not pose a safety risk to the general public.

Moreover, the original arbitration had reinstated Linhoff and the courts rarely overturn such decisions. This all amounts to an option for arbitrators to reinstate employees terminated for use of marijuana, but not a shift in policy toward permissiveness.

Schwartz also called attention to the reluctant concurrence of Justice Carmen E. Espinosa.

“Justice Espinosa would review how courts review arbitration decisions. The court was not inclined to do so,” said Schwartz.

Espinosa claimed the outcome of Linhoff’s case was compelled by precedent and outrageous. The concurrence argued that the court upholding the arbitration was a clear sign that the way courts defer to arbiters ought to be reviewed. The court, however, was evidently not persuaded that such actions were necessary.

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