ARE EMPLOYEES PROTECTED FROM UNREASONABLE ALCOHOL/DRUG TESTING UNDER TRIBAL LAW?
February 1, 2015
Tribal laws that recognize the right of individuals to be free from "unreasonable searches and seizures" by governmental officers and agencies should protect employees working for tribes, but only if employees can obtain an enforceable remedy in a tribal court or other forum. A recent case arising at the Mashantucket Pequot Tribal Nation addressed these issues and there are a number or lessons to be drawn.
In the case of Osfield v. Mashantucket Pequot Gaming Enterprise (Mash. Pequot Ct. App. 2013), a former bartender at Foxwoods casino was terminated after refusing to undergo an alcohol test. He brought suit challenging his termination by the Gaming Enterprise. A Board of Review upheld his termination, finding that the Enterprise had "reasonable suspicion" to require him to submit to alcohol testing. On appeal to the Mashantucket Pequot Tribal Court, the bartender—who was represented by the Local 371 United Food and Workers Union—successfully argued that the Enterprise terminated him without having reasonable cause to require the test. The bartender argued, and the court agreed, that management's assessment of the employee's behavior as hostile, in addition to testimony that he had "droopy eyes" and clothing that smelled of alcohol after a 6 ½ hour shift behind the bar, was insufficient to support a reasonable belief that he was under the influence. Thus, terminating him for not undergoing the alcohol test violated his right to be free from unreasonable searches and seizures under the Indian Civil Rights Act, 25 U.S.C. § 1302(a)(2). On appeal, the Mashantucket Pequot Court of Appeals overturned the trial court's ruling, holding that it was within the Gaming Enterprise's discretion to terminate the bartender. Furthermore, the Court of Appeals stressed that when decisions of the Board of Review are appealed to the Tribal Court, the court is not to engage in its own fact-finding exercise, but rather is shall only evaluate whether the Board's conclusions were "appropriate" and "reasonable."