Need Advice to Fight Wrongful Termination

What is the name of your state?What is the name of your state? Wisconsin

My brother has been terminated from his job due to what his employer says is a failed drug test. They claim that a blocking agent was found in his specimen and that is looked at as refusal to take the test. He doesn't smoke, doesn't drink, doesn't do drugs and is not aware of what a blocking agent even is. He is a health-nut, runner-type who simply takes a vitamin a day. Upon being escorted from his job, he went to an independent lab and had another sample done and that was found to be negative for any substances. His employer claims that for $400 they will send his original specimen for additional testing, but they aren't returning his call to find out where to send the money to have this done. Not that any of this isn't bad enough, but because he 'failed' a drug test he isn't eligible for unemployment benefits either. I want to help him fight this, but don't know where to start. HELP!

This was not a wrongful termination. So that avenue of defense is out.

What you could help him with is filing a claim with UC or an appeal. During the process he can subpoena the results of the test and know what is supposed to be the 'blocking agent'.

And it doesn't have to be something he 'knows' about. Many things in so-called 'supplements' can be positive during a drug screen. But it's a place to start.

There's actually nothing your brother can do. The bottom line is that your brother was an "at will" employee which means that he can be termimated at any time for any reason except for a specifically prohibited one - and term'ing your brother because of suspect drug test results, even if they are wrong, is not prohibited.

Assuming your brother's employer uses a collection site and testing lab that conform with federal requirements (which I expect most employers do), then it means that the full chain of custody was followed and certified and that his specimine was already double-checked by a MRO (a doctor who is the "medical review officer") before the results were sent back to the employer. While errors are possible in any situation, they are quite unlikely here.

If your brother wants to pay to have the original sample re-tested, then I suggest he contact someone in senior management if the people he's been working with aren't being responsive. Your brother should also file for UC benefits and not just assume he's ineligible. There are some "twists and turns" in WI UC reg's when it comes to drug test results.

This site http://www.workplacefairness.org/ looks to be pretty good at info on termination, discrimination, etc. Might help point you in the right direction.

D8D

Does the fact that the employer collected the specimen, not a lab, affect his options?

The EMPLOYER collected the urinalysis sample??? Or did they test using some other method such as hair?

Yes, it sounded odd to me as well. It was a urinalysis, not hair sample.

That's just peculiar. The bottom line though is that Wisconsin has no laws that prohibit testing or adverse employment action in response to a positive test result. Unless your brother's employer is a federal contractor or receives federal grant funds, they aren't required to conform to DOT testing standards (which most employers voluntarily comply with to ensure non-compromised and valid test results.)

Unless your brother happened to be working for a medical facility, I find it extremely odd (and yucky) that they are doing their own specimin collection. The likelihood of contaminated samples and/or poor chain of command controls adn thus false results increases significantly but even if that's the case, it's simply not unlawful. Sorry.

Your brother should definitely apply for UC benefits and he should bring these matters up at the hearing. Because of their collection practices, it's quite possible the employer simply can't substantiate the validity of the test results making it more likely your brother may qualify for benefits.