can i do anything?

[klc9100]

What is the name of your state (only U.S. law)? georgia

i was fired for having excessive absences. it happened the day after i hurt my back at work. they sent me to a doctor for workers comp. they gave me a drug test. i have a copy of it. the only thing in my system was darvocet (which i have a prescription for). reguardless, i was terminated for being absent.

my supervisor has told people there, who have told people in the community that i was fired for failing a drug test. is this defamation?

i DID NOT fail a drug test, i tested positive for something i'm supposed to be taking, plus i was let go for a totally different reason anyway.

 

[Proserpina]

What is the name of your state (only U.S. law)? georgia

i was fired for having excessive absences. it happened the day after i hurt my back at work. they sent me to a doctor for workers comp. they gave me a drug test. i have a copy of it. the only thing in my system was darvocet (which i have a prescription for). reguardless, i was terminated for being absent.

my supervisor has told people there, who have told people in the community that i was fired for failing a drug test. is this defamation?

i DID NOT fail a drug test, i tested positive for something i'm supposed to be taking, plus i was let go for a totally different reason anyway.

The thing is, you DID fail a drug test. Just because you were prescribed the medication doesn't mean the company has to accept the fact that it was in your system.

What is your line of work?

 

[klc9100]

no, i did not FAIL a drug test. if i did fail a WC drug test, i wouldn't be getting WC treatment. if i did fail a drug test, that's what they would have fired me for. it would be earier fo them to dodge unemployement.

 

[vfielder]

Most companies have a across the board drug policies. It doesn't matter if presciption is legal. They do not have to allow anyone with opiates in there system while in there employment on the job. It is a safety and liability concern. Yes you failed a drug test. There is no defamation here.

 

[klc9100]

how could it not be slander? they are saying i was fired for failing a drug test. my seperation notice says i was terminated for excessive absences. i was actually terminated because i hurt my back, but that's another story.

slander is making false statements that hurt someone's reputation, right?

 

[klc9100]

Most companies have a across the board drug policies. It doesn't matter if presciption is legal. They do not have to allow anyone with opiates in there system while in there employment on the job. It is a safety and liability concern. Yes you failed a drug test. There is no defamation here.

that isn't why they fired me, but now they are saying it is. that is a lie. this company has no policy at all concerning taking medication at work. i never took it at work anyway.

 

[cbg]

For additional info - see the poster's other thread on the workers comp forum

 

[quincy]

klc9100, I read your other thread and you received excellent advice from the FA experts on your employment issues. I understand from what you wrote that you will be speaking with an attorney in your area about these issues. It would not hurt for you to speak with this attorney when you see him about the statements made by your former supervisor to others, as well.

It is true that falsely stating that someone has failed a drug test and/or was fired for failing a drug test would generally be considered defamatory and could potentially, depending on other facts, support a defamation suit.

There are complications with your situation, however. You did fail a drug test.

What your supervisor said, therefore, could be seen by a court as true or substantially true, and the fact that he used the failed drug test and not the excessive absenses as a reason for your firing may not play much of a role in the matter. Truth, or substantial truth, can be used as a defense to successfully defeat a defamation claim.

That said, there can be a difference in how statements are worded and, where the wording of a statement leads another or others into a false interpretation of the statement and a false belief as to what has been communicated, the statement can be found defamatory. It is the exact wording of the statement, therefore, and what may be implied by the statement, that can result in reputational injury. A statement can be defamatory if what is communicated is interpreted by others into believing something false about a person, even when the basis for the statement may be true.

A statement that someone failed a drug test, in other words, with nothing else to support that statement, can be understood by others (and often is understood by others) to mean that the person failed the drug test due to illegal drug use. People react differently to a failed drug test based on the detection of a legal, doctor-prescribed medicine for back pain injury and one that is based on, say, the detection of illegal cocaine in the system.

Any defamation action you may consider then (and I am not at all sure you can meet all of the elements required for a successful suit) could hinge on exactly what was communicated by the supervisor to others and how these people understood what was communicated and how they reacted to what was communicated.

Based on what you have posted here I think that, at the very least, the statement made by the supervisor to others is something worth discussing with your attorney. You should keep in mind that the statute of limitations in Georgia for filing a defamation suit is one year from the date of first publication of a defamatory statement, should the attorney you consult believe there is a suit against the supervisor that is worth the time, effort and high expense of pursuing. Again, I am not convinced there is enough here to support a suit - just that it may be worth a discussion with your lawyer.

Good luck.

 

[The Occultist]

Quincy, are damages still material to such a lawsuit in this circumstance? You didn't quite touch upon it other than mentioning reputational injury and how other perceive the message. The point I'm getting at is: can any real damages come of this other than any future potential employer not hiring the OP based on such statements. If he is able to find another job that he has applied for, could that be a large setback for the OP should he pursue legal action?

 

[klc9100]

Quincy, are damages still material to such a lawsuit in this circumstance? You didn't quite touch upon it other than mentioning reputational injury and how other perceive the message. The point I'm getting at is: can any real damages come of this other than any future potential employer not hiring the OP based on such statements. If he is able to find another job that he has applied for, could that be a large setback for the OP should he pursue legal action?

the thing is, if i'm applying for jobs and companies aren't calling me back, how do i know why? it could possibly/likely be because they were told i was fired for failing a drug test. that is simply not true. i have the seperation notice to prove it. at first they were telling the other employees that i quit. now, the story is that i was let go for failing a drug test. my seperation notice says it was for excessive absences. but in all actuality, they fired me because i hurt my back at work. all of my absences were for medical purposes & were preapproved by management. ironically, i found a post on craig's list where they put up an add for my job less than 2 hrs after i hurt my back and then they fired me the next day. it's obvious what's going on here. i think they know they screwed up & are now back tracking and trashing me any way they can.

 

[csi7]

You would have to ask the company why you were not hired if you have a contact number for the company that you interview with.

The company can choose to give you a generic response, or give you details, depending on the circumstances and the company policy.

 

[cbg]

If you are applying for jobs and are not being called for interviews, I will GUARANTEE that it is not because they are being told you failed a drug test; employers do not call for references before deciding whom to interview. Now, if you are being called for interviews, received with great enthusiasm, told that the job is yours pending a reference check, and then have it all fall apart, then MAYBE it's because they're being told you failed a drug test.

But.

Once again. You DID fail a drug test. I understand that it was a legally prescribed drug. I understand that this is not the reason they gave you for the termination. But you DID fail a drug test. Failing a drug test does not SOLELY mean illegal drugs. It is possible to fail a drug test with a legally, medically prescribed drug. And that's what you did.

Therefore, it is not inherently illegal for them to say you did. As quincy says, the EXACT wording would have to be reviewed by an attorney to see if any legal recourse is available.

 

[quincy]

I think, The Occulist, that trying to show reputational injury enough to support an award of damages would be difficult, at best, and that would only be if all other elements necessary for a suit (either a defamation or false light action, and in Georgia these often go hand-in-hand) could be met and klc9100 were to win the suit. Any damages awarded would be for a jury to determine based on the facts presented.

While I think a discussion with an attorney may be wise for a review of the facts, I am not sure any attorney consulted will believe there is a suit here worth pursuing.

As klc9100 has noted, it is often impossible to tell why one was denied employment, unless the person in charge of hiring were to say it was due to false and defamatory statements made about klc that were communicated by the former employer, or due to false and defamatory statements circulating about klc in the community, or due to true statements communicated that could easily lead one to a false impression of klc.

Especially in klc9100's described situation, a job denial could be based on many reasons other than the failed drug test and what it can imply (ie. absenses, back-injury, the number of qualified job applicants for the position).

In addition, even if klc9100 were to meet all of the elements necessary to have an actionable case, jury awards are often not enough to cover even the costs of litigation. In one recent Georgia case, a plaintiff won her defamation suit against a novelist who based a fictional character on her, and the jury awarded the plaintiff $100,000 in damages for the reputational injury she suffered as a result - but no attorney fees were awarded. The attorney fees exceeded $100,000. The "victory," therefore, was a bit of a hollow one for the plaintiff.

IF klc9100 were to be denied employment based on false facts communicated in some manner to the hiring agent, then damages are certainly easier to demonstrate and a suit may be more worthwhile. If klc9100 were to be hired by another employer, then there is probably no reason to pursue any action against the former employer, as it would be extremely costly to pursue and there is no guarantee of success in the end.

Again, it may be worth an attorney's review, but I doubt if the facts will justify the expense of litigation. Not all defamatory statements that are made will be worth the time and expense of suing over. This probably holds true for the majority of defamatory statements that are published.

 

[klc9100]

i know the cost would negate any gain in such a case. i was thinking more along the lines of including it some way if i go forward with a FMLA suit, or something else.

the EXACT wording used was, "i failed a drug test, so i'm gone". i think to any rational human being, the conclusion would be that i was fired for failing a drug test, right?

that's my point. i was not fired for that reason, therefore, they are making false & defamatory comments about me to current employees as well as people in the community. i was very well liked there, so all the employees ask what happened. all the customers do to, and they are all being told everything BUT the truth.

 

[cbg]

You are still not getting it.

You seem to be under the assumption that because the official reason you were given for your termination was, excessive absences, that this means they are legally prohibited from saying anything else. That is incorrect.

Yes, the official reason you were given was excessive absences. However, YOU DID FAIL A DRUG TEST. Therefore, it is not false to say so, and it is questionable whether it is defamatory to say so.

You are wrong if you believe that the law prohibits them from saying anything except the on-the-record reason for your termination.