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False positive drug test.

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cfoster7363

Junior Member
Arizona (only U.S. law)?

In September 2011 I was offered employment provided I pass a saliva swab drug test. I was due to start work the following day when I got a phone call from the drug testing facility telling me I tested positive for marijuana. I told them that was impossible I don't smoke pot and that they need double check and make sure they have the right person and retest the sample. They refused and I lost my job before I could even start. I am worried that this false testing may affect future employment. Also I feel they slandered my reputation as a responsible and trustworthy employee. To make sure I didn't somehow come in contact with the drug I administered a urine test at home and it came up negative. Is there anything I can do?What is the name of your state (only U.S. law)?
 


Antigone*

Senior Member
Arizona (only U.S. law)?

In September 2011 I was offered employment provided I pass a saliva swab drug test. I was due to start work the following day when I got a phone call from the drug testing facility telling me I tested positive for marijuana. I told them that was impossible I don't smoke pot and that they need double check and make sure they have the right person and retest the sample. They refused and I lost my job before I could even start. I am worried that this false testing may affect future employment. Also I feel they slandered my reputation as a responsible and trustworthy employee. To make sure I didn't somehow come in contact with the drug I administered a urine test at home and it came up negative. Is there anything I can do?What is the name of your state (only U.S. law)?
US Law Only.

If you are in the US, you were not defamed.
 

quincy

Senior Member
I'm not sure about that, Antigone.

I know very little about employment law, but I read Arizona's Title 23, Labor, Chapter 2, Employment Practices and Working Conditions, Article 14 Drug Testing. Although there may not be a claim, or there may not be a claim that is worth pursuing if there is in fact a claim, it might be worth an attorney's review if cfoster lost employment due to a false positive on a drug test.

Article 14 covers both current employees and prospective employees. One of the provisions in Article 14, under 23-493.03, is that the drug testing procedure must include confirmation of any positive drug test results.

Under 23-493.07, Causes of Action, it lists some causes of action that could arise based on drug test results, and under 23-493.08, Limits to Causes of Action, it lists (surprise :)) limits to causes of action.

Again, it may be worth an attorney's review, if the only reason cfoster was denied employment was, in fact, due to the positive (and unconfirmed and possibly false) drug test result.
 
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quincy

Senior Member
Drug test results are confidential, so the results will not be (or at least, should not be) disclosed to a future employer by a previous employer. However, some states (I'll check on Arizona to see if this applies) recognize in their defamation laws something called compelled self-publication.

Compelled self-publication arises most often in employment cases, when a person has to reveal to a prospective employer the real reason they were dismissed from previous employment or be forced to lie. If the real reason for termination was a positive drug test, even though the positive drug test result could have been a false positive which would have been discovered as a false positive on a confirming test, the person applying for the job may find himself in the uncomfortable position of defaming himself. This could potentially result in a suit against the former employer.

Again, compelled self-publication cases are rare, even in the states that entertain this exception to the general rule of publication in defamation, and it is even rarer that the person who defames himself in this manner can win a defamation suit. See two examples out of Minnesota: Lewis v Equitable Life Assurance Society of the U.S., 389 NW 2d 876 (Minn 1986) and Sherman v Rinchem Company, Inc, D. Minn Case No. 10-CV-2062, Document No 51, August 8, 2011.
 
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cbg

I'm a Northern Girl
Since you ultimately were not hired, this cannot affect future employment. This employer won't be on your resume or any kind of job history, so this employer will not be contacted for references.

This would not be considered a previous employer since you did not actually perform any work for them.
 

quincy

Senior Member
Good point, cbg. :)

As a follow-up to what I posted previously: The only states currently that do not recognize compelled self-publication are Alabama, Connecticut, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Oklahoma, Pennsylvania, South Carolina, Tennessee, Virginia and Washington. New York is undecided.

A 1989 case out of Arizona is Ashway v Ferrellgas, Inc, 945 F 2d 408, 1991.
 
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quincy

Senior Member
Congratulations, DC on finishing* your first round of exams!
Congratulations, Antigone, on completing your final!

Drinks for everyone!! YAG's treat!!!




*(if you are finished)
 

quincy

Senior Member
The photos, not so much. The porn video homemade by some guy in Ohio, on the other hand . . . .

:eek::eek::eek::eek::eek::eek:

. . . .yup, drinks are most definitely on you.
 

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