EMPLOYER ACTED UNLAWFULLY IN TERMINATING EMPLOYEE FOR REQUESTING REPRESENTATION PRIOR TO TAKING DRUG TEST

When an employer requests that an employee take a drug and/or alcohol test, time may often be of the essence.  Anxious to avoid losing evidence of an employee’s inebriation, most employers will want to move quickly, without delay, to ensure that the drug/alcohol test is taken properly. 

What happens, then, when an employee asks to have a representative present before taking a drug or alcohol test? 

In Ralphs Grocery Company (July 31, 2014), the National Labor Relations Board (NLRB) held that an employer acted unlawfully by refusing such a request and instead terminating the employee.  In that case, the employee was required to submit to a drug test.  Rather than immediately submit to the test, he requested the right to have a representative present.  Concluding that the employee had engaged in insubordination in the refusal to submit to a required test, the company immediately terminated his employment. 

So what is the problem with this? 

Well, here it is.  Under the National Labor Relation Act (NLRA), an employee’s Weingarten rights provide the employee with the right to have a representative – often a union steward – present at any investigation or other meeting that might result in disciplinary action against the employee.  To a degree, the concept of Weingartenrights is a bit of a political football; when conservative members predominate on the NLRB, it has often been held that non-union employees have no Weingartenrights, while an NLRB made up of more liberal members has held the opposite.  At the present time, the NLRB is quite union- and employee-friendly, and as a result, they have held that non-union employees have the same Weingarten rights as do unionized employees. 

Under these circumstances, and because the drug test required under those circumstances may have led to disciplinary action, the employer violated the NLRA by terminating the employee for his refusal to immediately submit to testing without a representative. 

So…how can an employer avoid this sort of situation in the future?  

Simply put, the easiest thing for the employer to do in this situation would have been to allow the employee to have a coworker present (along with management), as was his request.  That is not to say that the employee could have requested someone who would have unduly delayed the taking of the test.  However, by allowing the employee to have a requested representative present, the employer avoided the possibility of legal exposure under the NLRA. 

The NLRB also hinted that, had the employer taken disciplinary action against the employee based “on the information it already had,” i.e., observations of the employee’s inebriation by supervisory personnel, it would not have created a legal issue under the NLRA.  I do not find this reasoning particularly persuasive.  By taking disciplinary action without first confirming the employee had, in fact, violated the company’s drug & alcohol policy, the company would have likely opened itself up to other legal challenges and questions concerning the basis for its termination decision. 

As we have seen in other recent Employment Law Alerts, the current NLRB is pretty far out on the limb in many of its decisions.  With that in mind, many courts might not agree with the reasoning of this case.  Nevertheless, employers– even non-union employers – should be well aware that an employee’s request for the presence of a representative in a potential disciplinary situation is a red flag which should put the company on notice of a potential issue if the employee’s request is denied or ignored.

If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or mnicely@ehhlaw.com.