As we spoke about last week, there have been a number of arbitrations heard in Minnesota since the introduction of the ignition interlock program for citizens who are convicted of DUI. As you will see, in the cases we’ve reviewed, Arbitrators can see the limitations created by the ignition interlock program as either a curse for employers or a creative way to keep an employee at work despite his or her criminal shortcomings.
In Law Enforcement Labor Services and Mahnomen County (https://mn.gov/bms/documents/BMS/126428-20160817-Mahnomen.pdf), the employer attempted to terminate a deputy sheriff after he was convicted of his third DWI and requested the county to apply for an ignition interlock device so he could drive a county squad car with the device. During the arbitration, the employer discovered a fourth DUI from earlier in the employee’s career that had not been disclosed, which the employer considered to be untruthfulness on his employment application.
After substantial discussion of whether the grievant lied about his first DUI in 2001, the Arbitrator returned the grievant to his position on a last chance agreement without backpay. Arbitrator Paull found that the grievant had apologized for the problems he had caused his employer, had no previous discipline, and had started going to Alcoholics Anonymous meetings. He also found that the positive things accomplished during the grievant’s three-year career with the County offset the trouble caused by his DUI. Regarding how the County should deal with the ignition interlock device, the Arbitrator stated the following:
[T]he County should make an immediate and “good-faith” effort to apply for an interlock on [the grievant’s] squad car. Although there is no evidence that it would attempt to do so, the application should be made without the County attempting to influence in any way whether or not the request is granted.
On the other end of the spectrum, the City of Litchfield, facing a similar case (https://mn.gov/bms/documents/BMS/130674-20160905-Litchfield.pdf), terminated a sergeant with 24 years experience following his conviction of DWI, dishonesty to the arresting officer, and administrative loss of his driver’s license. In upholding the termination, Arbitrator Tidwell found that the grievant’s dishonesty at his traffic stop combined with the small size of the municipality in which he worked and his loss of license made termination the only disciplinary option for the employer. Regarding the installation of an interlock device on a department vehicle, the Arbitrator stated the following:
Installing such a device on a squad car so the Grievant could comply with the administrative requirement of an ignition lock would be expensive, difficult, and at the least an inconvenience for the officers who work on other shifts and would be required to use this car, according to the Chief. A safety concern also exists as any driver of a vehicle with this device would have to provide a breath sample while driving as the device requests, which may be en route to an emergency, for example. Installing an ignition lock device on a Department squad car would be expensive, potentially unsafe, and not operationally feasible for the Department in the arbitrator’s opinion. These concerns are in addition to the undoubtedly negative reaction of the community to the City’s expenditure of funds to install such a device.
The arbitrator rebuffed the suggestion of putting “Whiskey plates” on department vehicles to avoid use of the interlock device. However, she did not rule out such a solution in larger jurisdictions where the officer would not be so easily recognized.
Finally, in a case (https://mn.gov/bms/documents/BMS/136022-20181028-Mpls.pdf) we briefly discussed last week, the City of Minneapolis placed a Public Works foreman on long-term leave when he could not get his full driving privileges reinstated and his employer refused to install an ignition interlock device on a department vehicle following his second DUI since 2016.
After the employee lost his license, the collective bargaining agreement allowed for the employee to only maintain his position for a period of thirty days, at which point it gave the employer the sole discretion to find alternative work for the employee. The employer decided to place the employee on long-term leave at that point, and then lay the employee off until he could get his license back without restrictions in 2019. The Union grieved, complaining that the employee could perform all essential functions of his position with only “minor accommodations.”
In denying the grievance, Arbitrator Befort found that “an employer generally does not need to provide an accommodation to enable an employee to perform an essential function of the job absent an affirmative statutory duty to do so.” Arbitrator Befort also cited Arbitrator McCoy’s award in State of Minnesota and AFSCME Council 5, BMS Case No. 14-PA-0630, in which he made the most accurate statement about a union’s claim about the reasonableness of interlock devices: “It is simply absurd to think that having to blow into a device simply to start a car and being restricted for 365 days from driving a car that did not have such a device represented a valid/appropriate driver’s license.”
While we wish you could count on an arbitrator making that type of response whenever the issue of ignition interlock installation was brought up, the Mahnomen County decision tells us that you can never tell what an arbitrator might order if the decision is placed in her or his hands.
Because of this, it is important for an employer to know what steps to take when an employee whose job depends on the maintenance of a valid, unrestricted license loses said license. If you feel you need assistance in coming up with a plan for such an event, feel free to give us a call at The Wiley Law Office. If you’re interested in learning more about ignition interlock restrictions and dealing with other employee restrictions the limit the performance of essential functions, be sure to catch us presenting at the MPELRA Winter Conference this February.