Worker sues for back pay in latest test of LIRR marijuana policy

A Long Island Rail Road electrician who was fired after testing positive for marijuana is back to work following an arbitrator’s ruling, but he's now fighting the LIRR for nearly two years of back pay.

It's the latest legal challenge to the LIRR's pot policy, which has remained unchanged even after New York State legalized recreational marijuana use in 2021. The policy, which allows for an employee to be fired for trace amounts of marijuana even without evidence the employee was under the influence while at work, has so far withstood the challenges. The Metropolitan Transportation Authority, the LIRR’s parent organization, has said the position prioritizes safety and is communicated to workers.

Daren Drew, 57, is one of two LIRR electricians who worked on trains' HVAC systems who have mounted separate legal battles against the railroad for what they believe is an unreasonable pot policy that cost them their jobs. Both worked at the railroad for about 25 years.

In 2022, Drew tested positive for marijuana metabolites in a screening upon returning to work after taking time off for cancer treatment. Drew, of Laurelton, Queens, denies having used marijuana and believes medication he was taking triggered a false positive. His urine sample was retested later and again came back positive.

Rather than accept a six-month suspension, Drew took his case to an internal LIRR disciplinary trial, lost, and was fired. He took the matter to an independent arbitrator and in January was awarded his job back, finding that, while Drew did violate the LIRR's drug policy, the punishment was "excessive." But, Drew said, the arbitrator decided against awarding any wages for the 22 months he was out of work.

"You’re happy to hear that you’re able to return to work, but at the same time I was very blown away by the decision not to make me whole. ... Two years of no finances — it hurts," said Drew, who took issue with the arbitrator's ruling citing his "failure to acknowledge ... culpability."

"I never admitted to anything. I always denied it. So why would I show remorse for something I didn’t do?" Drew said.

Drew earned about $154,000 in 2021, the last complete year he worked, records show.

Drew’s union, the International Brotherhood of Electrical Workers, is looking to have a federal court throw out or amend the arbitrator’s ruling, which it says did not reflect the record of the trial, where LIRR officials acknowledged there was no evidence of Drew working while under the influence.

The union also points out the railroad’s drug policy violates state law, which, since 2021, no longer prohibits the recreational use of marijuana.

Dispute over job's designation

Regardless of the state's legalization of pot, the LIRR has stuck to its policy prohibiting the use of federally controlled substances among workers with jobs "designated as safety sensitive under LIRR authority." The union has said, under Federal Railroad Administration guidelines, Drew’s job is not "safety-sensitive." His job involves working on trains' air conditioning systems. The LIRR's published policy leaves room for the agency to consider a worker's job "safety sensitive" even if the federal agency doesn't.

The union suffered another setback in March when a federal judge dismissed a lawsuit against the railroad by another former LIRR electrician, Ronald Dolginko, of North Babylon, who also tested positive for marijuana metabolites upon returning to work from an extended medical absence in 2021. He, too, denies having used pot.

Dolginko, who made about $97,000 in 2021, retired in 2022 rather than accept a suspension or risk being fired and is seeking damages from the railroad. But the court ruled it did not have jurisdiction over the matter.

"It was another dagger in the heart," said Dolginko, 61, who remains frustrated with the rigidity of the railroad’s stance on pot use, even after its legalization. "Things change. Laws change. And they don’t want to change."

In a statement, MTA spokesperson Joana Flores said the transit authority "will never compromise on customer or employee safety."

"Every LIRR employee is expected to strictly follow LIRR’s rules and prohibitions to ensure safe operations," Flores added.

Scrutiny for policy

Ricardo Sanchez, who heads the LIRR electricians’ union, said his union agrees employees should never be under the influence while at work, but said the railroad’s drug policy is overly restrictive, punishing workers for trace amounts of a legal substance that could have been used days, or even weeks, earlier.

"When they sit there and say, ‘We do this for safety,’ that is not true. Because, they don’t achieve anything that way," said Sanchez, who believes that instead of trying to "save face," the railroad should "negotiate a new policy that conforms to the law."

"It’s not for the greater good. The law has changed and they don’t want to acknowledge it," Sanchez added.

Neil Kaufman, a Hauppauge attorney specializing in cannabis law, said "it’s pretty clear" that the railroad’s policy violates state labor law prohibiting discrimination against employees based on the legal use of cannabis outside of work hours and off an employer’s property.

Kaufman, who is not involved in either of electricians' cases, said the MTA may be counting on the union giving up its legal fight before the railroad is forced to update its marijuana policy.

Kaufman believes the LIRR’s policy reflects "the continuing social stigma" against cannabis use.

"With large, slow-moving organizations, they’re just slow to adapt to the real world," he said. 

By Alfonso A. Castillo

alfonso.castillo@newsday.com@alfonsoreports

Alfonso Castillo has been reporting for Newsday since 1999 and covering the transportation beat since 2008. He grew up in the Bronx and Queens and now lives in Valley Stream with his wife and two sons.