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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 36976
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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My son is 21, a junior in college, and has worked for a major

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My son is 21, a junior in college, and has worked for a major grocery store since he was 15, ie: 6 years, throughout high school, college summers and even came back home every 6 weeks to work a weekend to keep his job for the following summer as well as vacations. So, a lot of time, effort and due diligence has been invested by my son to keep his job. This summer, a random drug test was given (which we don't have any problem with) but he showed positive for marijuana and negative for amphetamines of which he takes Adderall for every day. The test was a 5 step swab test that is not FDA approved, so we challenged it. We also independently got him tested 3 more times by Federally Approved clinics with the urine tests that are supposed to be very accurate and FDA approved & he passed negative on the marijuana and positive with the Adderal. His employer would not accept any of these independent tests but would allow a "re-test" of the same swab test, therefore the original sample. Since we think the sample was "tainted and not accurate" due to his prescription medicine not showing up whatsoever the results of the retest did not surprise us whatsoever. The question is do we pursue further in proving the test was invalid with getting an attorney or let it go? We do live in a right to work state, but that's not the issue......our son's reputation is important to us, he is an Eagle Scout, and our main concern is can a future employer after college call the Grocery Store HR for a work reference (6 years is a long time for work history) and get the information that he failed a drug test?? We know that HR can verify that he worked from this date to that date, but if asked specifically if they would re-hire him, could they say no and the reason is failure of a random drug test? If that's the case, then would you recommend that we pursue with counsel to clean up the issue and make sure that in the future that it will not be in his detriment? Please advise us..... because this is really important now to us and in the future. Thanks in advance for your guidance and help!
Submitted: 11 months ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 11 months ago.

Thank you for your question. Please permit me to assist you with your concerns.

This is a tough situation to be in, and I am sorry your son was placed in this position. It is believed that potentially up to 10% of all tests come back with an improper result, be it a false positive or a false negative (and in your son's case, both). However the employer will not ever formally provide such information to third parties pertaining to the test--employers are notoriously afraid of defamation claims so they generally would only state the length of time someone worked for them, and their title, and that is about it. I doubt they would risk anything else since anything further would be potentially defamatory in nature. But at the same time I truly do not see the need or obligation to pursue this with counsel--this is unlikely to be removed as the results exist, right or wrong, and it would likely just be a waste of money and resources.

Good luck.

Customer: replied 11 months ago.

Well, I am not feeling comfortable whatsoever with your answer. I have researched with my executive counterparts in HR departments with Fortune 500 Companies, and their response is if asked specifically "Would you rehire the employee?" they would be obligated to say no due to corporate policy on failing the employee random drug test. Also, if asked specifically was the failure to re-hire in the future due to failing a drug test, they would have to comply with yes, due to the correct information in the file. So, please help me here, how do you come up with your answer? Again, this is happening in North Carolina, a right to work state. Are you licensed to practice law in NC and aware of our state laws? Please no disrespect here, just laws very from state to state and I am really searching for a baseline here and direction of where to go to ensure our son's future doesn't hang on a drug test that was handled improperly or the sample flawed, and as parents we did not do the right thing and hire an attorney to resolve this issue if it were ever to come about! As we are aware, a few thousand $$'s spent here up front could save tens of thousands of $$'s in future salary and compensation. We are just trying to do the "best parenting thing!" So, let's take you out of your professional role and ask personally, if it were your son, what would you do?

Expert:  Dimitry K., Esq. replied 11 months ago.

Thank you for your follow-up. To ensure that I do not miss anything, I will go line by line with my response.

Well, I am not feeling comfortable whatsoever with your answer.
I am sorry to hear that, but my answer to you was based on my own experience and former cases that dealt with similar matters. Proving defamation is extremely tough but is still a huge headache for the employer. But compelling them to hire is an even harder claim especially since termination here was not discriminatory in nature.

I have researched with my executive counterparts in HR departments with Fortune 500 Companies, and their response is if asked specifically "Would you rehire the employee?" they would be obligated to say no due to corporate policy on failing the employee random drug test.
That is potentially true. But that only refers to internal information within the company. Internal data is not shared with outsiders.

Also, if asked specifically was the failure to re-hire in the future due to failing a drug test, they would have to comply with yes, due to the correct information in the file. So, please help me here, how do you come up with your answer?
I came up with it because no potential employer would ask that question. I am referring solely to outsiders, an internal re-hire is likely not possible.

Again, this is happening in North Carolina, a right to work state. Are you licensed to practice law in NC and aware of our state laws?
Laws do differ from state to state, but before I answered I researched your answer. I am licensed in two states, both of them being 'right to work' states, and I have worked as 'of counsel' North Carolina on employment termination and discrimination matters.

Please no disrespect here, just laws very from state to state and I am really searching for a baseline here and direction of where to go to ensure our son's future doesn't hang on a drug test that was handled improperly or the sample flawed, and as parents we did not do the right thing and hire an attorney to resolve this issue if it were ever to come about! As we are aware, a few thousand $$'s spent here up front could save tens of thousands of $$'s in future salary and compensation.
That is true, and also no disrespect taken. This is why I am very patiently responding to each issue you listed.

We are just trying to do the "best parenting thing!" So, let's take you out of your professional role and ask personally, if it were your son, what would you do?
While I cannot advise you one way or another as I am not attorney, the answer I provided to you would be similar that I would provide to my own clients and family members. I do not see a good basis here to fight this since it is highly unlikely that the employer would disclose this information to third parties.

PS. I appreciate your poor rating given to me while I was busy typing out my response to you. My apologies but I was researching my responses before posting them and I appreciate you ability to be patient.

Take care.

Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 36976
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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