DAVID DESALVO Vs. DEPARTMENT OF POLICE

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DAVID DESALVO * NO. 2013-CA-1598 VERSUS * COURT OF APPEAL DEPARTMENT OF POLICE * FOURTH CIRCUIT * STATE OF LOUISIANA * * ******* BONIN, J., CONCURS WITH REASONS. I concur. Mr. DeSalvo was apparently drug-tested under the authority of La. R.S. 49:1015 A. The cut-off level for marijuana, which is specified by statute, “shall be no less than fifty nanograms/ML and no more than one hundred nanograms/ML as specified by the employer or testing entity.” La. R.S. 49:1005 B (emphasis added). Here, the employer and the testing entity are relying upon a lesser cut-off limit, which contravenes the clear dictates of law because the NOPD is using the below cut-off limit for a “negative employment consequence,” namely termination of employment. See La. R.S. 49:1001(5), 1005 A. As a matter of law, these test results cannot support the termination of Mr. DeSalvo, who is not an at-will employee.

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