Drug testing

You tested dirty, but you’re clean. You think the employer falsified the test.

This Article discusses suing the employer for falsifying a positive result.

If you were selected for testing due to some discriminatory or retaliatory reason, or you were punished excessively for a dirty test because of discrimination or retaliation, then your case is not a drug testing case - it’s a discrimination or retaliation case. See a lawyer right away. Also, if your case involves issues such as the employer learning of your private medicines or interfering with your medication, then this section is not for you and you need to file an EEOC charge (see discrimination for how to file EEOC charges).

If you think the employer has falsified a positive result, then maybe the rest of this discussion will be of interest.

In other Articles I talk about how employers in Missouri do not need a good reason to fire someone under the “At-will” rule (but see my Wrongful Termination article for exceptions to the At-will rule). Maybe your case is one in which the employer could have fired you without good reason, but he feels that to protect himself from potential liability he needs to concoct a darn good reason, so he arranges to falsify your drug test results. Or maybe the employer truly hates you for some reason that does not give you a discrimination or wrongful termination case, but the employer wants to wreck your career so he arranges to falsify your drug test results.

If that is what happened to you, then you are in for quite an uphill battle to get any justice. One of the problems for people in this situation, in my opinion, is that judges and juries are not prepared to believe that employers and laboratories would actually conspire to falsify a drug test result. I think judges and juries would demand powerful proof.

Lawyers would be willing to sue employers and labs in the right circumstances. Lets talk a little bit about some of the things I would like to see in terms of evidence that might give a decent chance against the falsifying employer and lab. But be warned that even if you obtain this evidence, I am not promising to be able to help you, and I am not promising to “take” your case. If you obtain this evidence, I will be willing to talk to you, of course. I have told many drug testing victims over the years that the first step in my review of their case is for them to show me that they are really clean, and I have asked them to go get a hair analysis that shows that they are really clean, and then call me back. So far, no one has called me back reporting a clean hair analysis.

Evidence I think would be quite interesting in a drug testing case where you think the employer and lab have conspired to create a false positive:

• The employer has a strong motive to dislike you. Ideally, others will have seen that he dislikes you.
• The employer has a reputation for engaging in unethical conduct, or is known to be a liar when convenient for him.
• Upon being told his urine was dirty, the employee chose to immediately have the urine sample re-tested at his own expense. If this re-test had showed clean, the problem was solved most likely.
• At the same time, the employee went to another lab or to his doctor and arranged for a blood test that was far more elaborate and accurate than the test that the employer did, and the employee tested clean.
• The employee also immediately got a hair analysis done and tested clean. Hair analysis is particularly expensive, but is reputed to detect drug use over relatively long periods in the past. A clean hair analysis indicates that the elaborate blood test, which was also clean, was not a fluke, and that the employee is most likely really clean.
• It is possible to learn some things about the lab’s history, and there are some suspicious things about the lab, such as repeated citations for failure to comply with standards, or prior litigation that raises questions about the lab’s integrity, or complaints against the lab filed with the State, or the withdrawal of contracts for the lab’s services by reputable companies, or serious financial problems facing the lab.
• BONUS POINTS: 1) The urine sample was obtained from the employee under circumstances which are suspicious in some significant way. 2) The employer said re-testing was not an option, but other employees have been allowed to chose re-testing. 3) Other employees have had similar problems with this employer.

Again, if you think discrimination or retaliation has occurred, then your case is much more than a drug testing case and you need to see a lawyer right away.

You can try to file a complaint against the employer and lab with the Missouri Attorney General’s Office if you think some sort of conspiracy is involved. The Attorney General’s Office might not be willing to take on most of these complaints, but their opinion might change if you had some interesting evidence.

The Feds might also be interested in evidence of fraud. You may have to talk to several different agencies before finding one who will listen to you. The Department of Justice or the F.B.I. might be interested in the right circumstances. The Food and Drug Administration might be interested, because they regulate labs. But again, you will almost certainly have to supply evidence that fraud has occurred.

If you are a member of the trucking industry, you could contact the United States and Missouri Departments of Transportation.

Don’t hold your breath waiting for governmental agencies to help you. We’re in a drug war, after all, and the government and the public love the idea of drug testing. That is, they love drug testing until they are personally victimized by it: they get accused of adulterating a sample, or a false positive occurs, or they get accused of taking too much prescription medicine, or their privacy is compromised because the employer learns of their legitimate and private medical problems through drug testing, or the employer targets African-Americans for testing in order to be able to fire them without fearing EEOC charges, etc.