UPS accused of blacklisting following disputed drug test — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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UPS accused of blacklisting following disputed drug test

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in HR Management,Human Resources

UPS fired Greg Leach from his position as a driver after he tested positive for cocaine. Leach demanded a retest, insisting he hadn’t used cocaine in more than 20 years.

The company complied, but Leach said UPS did not properly administer the test because it failed to use gas chromatography/mass spectrometry to verify the results, as required by U.S. Department of Transportation (DOT) standards.

Besides—in what the court would later call a “bit of a contradiction”—Leach argued that the level of cocaine in his system, if there was any, was below the legal concentration.

After being fired from UPS, Leach was offered a job with Mid-States Express. Leach contacted UPS’ HR office and asked the company not to disclose the positive drug test because it had not been properly administered. UPS nonetheless reported the positive result to Mid-States Express, which withdrew its job offer.

Leach sued under the Indiana Blacklisting statute, which holds a company liable if it allows its agents to “attempt by words or writing, or by any other means whatever, to prevent such discharged employee … from obtaining employment.”

Judge Philip Simon noted the law is “an antique” with “a thick layer of dust on it,” dating back to the late 1800s when railroads routinely blacklisted workers. Still, it’s on the books, he said.

The law provides exceptions for employers that truthfully report their reasons for discharging employees. Simon ruled that UPS could not claim this safe harbor because it knew of Leach’s objections to the test results, and so knew the test results “to be false.”

UPS argued that it was required under DOT regulations to tell prospective employers about positive test results. However, the regulations specify “verified positive drug tests.” UPS knew the results were not verified, the judge ruled.

The case now heads to court.

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