Posted on 09/13/2012 at 08:00 AM by Russell Samson
In follow up to our two previous blog posts on Skipton v. S & J Tube, Inc., employers may be wondering why the employees discharge could not stand even though she admitted a second test would come back positive. Must employers retain a confessed recreational drug user? In Sims v. NCI Holding Corp., the Iowa Supreme Court found a violation of the statute where the employer had failed to timely provide the written notice regarding a confirmatory test by certified mail, return receipt requested. But in Sims, despite the delay in the written notice, a confirmatory test was in fact run on the second portion of the split sample. The initial positive test in Sims was confirmed. The Iowa Supreme Court determined that while Sims attorneys would receive fees from the former employer in recognition that the attorneys properly brought an action to enforce the law, and indeed established a violation by the employer, Sims himself was not entitled to any back pay or reinstatement remedy. The violation of the notice provision did not change the fact that Sims was properly tested under the statute, and the violation of the employer did not and would not have changed the substantive result. S & J argued that because Skipton had orally acknowledged that if the second portion of the split specimen were tested, the result would be the same a positive test for cocaine she, like Sims, should not be entitled to back pay. This argument was quickly dismissed: The Court of Appeals noted that the drug testing S & J conducted on Skipton was not authorized by the statute in the first instance. If the company had not improperly requested a drug test, [there would have been] no discussion . . . concerning whether Skipton would take a confirmatory drug test. And without that discussion, Skipton would not have made the statement, the admission, she did. Without mentioning it, the Court of Appeals appeared to be applying what criminal lawyers and constitutional scholars call, in another context, fruit of the poisonous tree. The Court of Appeals was clearly not going to permit S & J to benefit from information it gained as a result of its own improper conduct. It is unlikely an employee would spontaneously volunteer that s/he would flunk any drug test. In my experience, most such statements are made in the context of the employee being directed to submit to a drug or alcohol test. If an employee makes such a statement, s/he is most likely admitting to being in violation of the employers written drug or alcohol policy. An employer provided such an admission does not normally need to go through with the testing. (But employers need to check their specific policy to see what it says.). This case teaches that an employer needs to make sure, before relying on such a statement given in that situation, that the initial directive to submit to a drug or alcohol test is proper under both the law and the written policy.