Question:
My husband was placed out of service on the 18th of Oct. for allegedly trying to run someone over at the loading yard. He was given these orders AFTER running his Oct. 18th load. (the incident allegedly occured on the 17th)
On the 18th, he was also required to submit to a drug test (urine).
On the 23rd, he received a registered letter, indicating that he will be out-of-service pending thee outcome of the alleged incident at the loading yard.
On the 24th, he received a phone call from his companies home office located out of state, stating that he had 24 hours to submit to another drug test, as the first one came back diluted.
Question #1- Seeings how he is out-of-service, does his company have to reimburse travel expenses?
(There is no chance in h*ll, that the first drug test was dirty. He drinks alot of water and gatorade EVERYDAY and any other drug test he's taken probably came back as diluted also.) He retested today, however the company told him that he had to wait at the facility in case this one came back diluted. He had to be observed while performing a sample. But then left, as the collection site does not perform thee analysis. They are sent out to a lab out of State. Hence, he didn't wait to see if it came back diluted.
Question #2)- What legal consequences could he have been looking at for not agreeing to retest? i.e license consequences.
Question#3)- Can any company require an Out-of-Service driver to submit to testing within 24 hours or face termination. (This is not found in his contract.)
We decided to take the opportunity to use his time off for a mini-vacation and were 300 miles away from the collection site when he got the call insisting that he drive to THAT particular collection site and give an observed sample AND wait there until the results came back, to determine if it was diluted.
He says that the allegation of trying to run someone down is unfounded. A yard supervisor who was with him while he was at the yard, says it didn't happen. A security supervisor said that the person alleging the claim, has falsified similar reports on other drivers. Other drivers said that the same s*it has happenend to them.
Can this company be held responsible for our out of pocket expenses incurred while he was Out-Of-Service as it relates to the job?
Thanks,
Michelle

Answer:

And on a related note....
He has a meeting on Thursday the 26th, and would like to know if he can bring a recording device to the meeting should he decide to consult an attorney later.
He wants to tell his employers that their conversation re: the loading yard investigation is going to be taped as his attorney or Union Rep. isn't going to be there.
Can his employer refuse to allow him to tape the meeting??

Answer:

MichelleH,
1) Who gave the out of service order?
2) What happen to the urine sample that he gave as they are required to do a split and retest with split sample. Are u saying that both samples for that day were bad?
3)I WOULD NOT GO FOR A MEETING WITHOUT AN ATTORNEY AND/OR ADVICE FROM MY ATTORNEY!!!
4) Company does not have to meet and have meeting recorded, they can refuse. Same as u can refuse without counsel.
5) The law is if a company request a drug test for random testing, if employee refuses then employee is placed out of service and can be terminated. That does not have to be in a contract, that is the Feds rules on testing.
6)You need to get written statements from the witnesses also.
Opie should be contacted for best advice.
GOOD LUCK


Answer:

Thanks Redwing,
#1)-His Taylor Mi. office called him on the cell phone on the 18th and told him that when he finished his load, he needed to report to the clinic. Then he received a call asking him to report to his terminal, where he was placed out of service.
#2)-I'm sure the lab has the sample, but if it's too diluted, it's too diluted.
#3)-He was told that the meeting was mandatory, and isn't able to get an attorney in time to accompany him. That is why he wants it recorded.
#4)-See #3.
#5)-This is the one that baffles me. He was ALREADY OUT OF SERVICE when he was told to submit to a retest. He wasn't placed Out of service for a drug violation. He doesn't use drugs. He's never gave a dirty sample at this company or any other company.
Does this company have the right to say, "I don't care if your 300 miles away, you've got 24 hours to give another sample and wait at the clinic in case, it too is diluted." His contract does say that drivers will not be contacted on their off-time to submit to tests. AND anything drivers are asked to do that's work related, driver shall be compensated at a rate of $16.00 per hour, the usual hourly/downtime rate.
I guess I want to know, if there is some Federal law that the company can hide behind to get out of paying him the hourly rate. (And travel, as we were on vacation. Albeit nothing grand, but quite a ways from home none-the-less. LOL)
#3)-Written statements-Good idea. Thanks again.
Michelle

Answer:

I am sorry I am so late in responding. I saw this message today (Friday) at 4:30 a.m.
"Question #1- Seeings how he is out-of-service, does his company have to reimburse travel expenses?"
OPIE SAYS: This will depend on the law of the State which I assume is Michigan. However, I assume they do not unless there is something in a company memo or policy handbook which allows reimbursement of travel (lodging? meals? Not really travel expenses).
"Question #2)- What legal consequences could he have been looking at for not agreeing to retest? i.e license consequences."
OPIE SAYS: Probably no legal consequences for not agreeing to the second test. It was not a DOT drug test since it was not a random test, a return to work test, a pre-employment test or a probable cause test.
"Question#3)- Can any company require an Out-of-Service driver to submit to testing within 24 hours or face termination. (This is not found in his contract.)"
OPIE SAYS: I would have to see what else the contract (Is he an o/o?) says about termination. If they otherwise abide by the terms of the contract, they can terminate his lease for whatever reason they want except for an illegal reason.
You asked "Can this company be held responsible for our out of pocket expenses incurred while he was Out-Of-Service as it relates to the job?"
OPIE SAYS: It depends on what the lease says. I suspect not.
You asked: "He has a meeting on Thursday the 26th, and would like to know if he can bring a recording device to the meeting should he decide to consult an attorney later."
OPIE SAYS: I am too late in responding to help you on that one but yes he can.
You said: "He wants to tell his employers that their conversation re: the loading yard investigation is going to be taped as his attorney or Union Rep. isn't going to be there."
OPIE SAYS: That changes things. If he is in a union he always has the right to have a union rep., e.g. steward or business agent, present. This is what is called a "Weingarten Right." What union and local no. is he a member of?
YOU ASKED: "Can his employer refuse to allow him to tape the meeting??"
OPIE SAYS: Yes.
NOTHING IN THIS POST SHALL BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP.

Answer:

Welllllll. Every employer is required to have a written policy that conforms to FMCSR 382.601. The policy is VERY detailed about who is required to test when and under what conditions. The driver must sign a receipt acknowledging receipt of this policy.
The policy is required to outline the consequences for refusing to take a contolled substances or alcohol test, the collection procedure and who in the company would answer questions about the carrier's policies.
Read the reference and see if the policy adheres to the requirement. It maybe the only legal leg your hubby has to stand on.
Keep the faith.
M

Answer:

Thanks M,
He did not refuse the test. I was just wondering what could happen if we decided to stay on our vacation and not drive 300 miles back to the clinic. He was asked to re-test because the first one was considered diluted, NOT dirty.
But, the policy that the company assigns to the drivers contract doesn't say that a driver has to re-test within 24 hours of any given test. In fact, when a driver tests dirty, he/she has 30 days in which to submit a clean specimen and contact an SAP.
THis has been very helpful.
BTW: He wasn't discharged due to the drug testing. He was discharged for allegations of trying to run over the drug dealer.