By: Rob Parker

Have you ever experienced a manager who has gone rogue and potentially set the company up for liability?  If so, this situation might sound familiar to you.

An employee was called into her manager’s office.  The manager informed her that he had heard a rumor that she was taking medication and believed she might be impaired at work.  She denied that she was taking any medication or being impaired at work. Nevertheless, the manager insisted on driving her to a drug testing facility and requested that someone from the testing facility observe the test.  The employee felt humiliated and embarrassed having to urinate while being observed.

To make matters worse, when the manager returned to the office he decided to tell several employees about the drug test and asked others if they had ever witnessed this employee impaired.

The employee was not in a safety-sensitive position, had never shown any signs of impairment at work, and had never sustained a work-related injury.  There was never any reasonable suspicion — just gossip and rumors.  And guess what? The drug test was negative. And, as is usually the case in these situations, Human Resources was unaware that any of this was happening until afterwards.

To complicate an already problematic situation, the drug tested employee was a member of a local union and had no union representation during the whole ordeal.

The possible consequences from the above situation:

• The collective bargaining agreement could have been violated if it contained a “representation” provision (Weingarten), which requires a union representative to be present if the employee believes that disciplinary action may occur. A violation could lead to an unfair labor practice charge against the company.
• The Americans with Disabilities Act (ADA) prohibits employers from arbitrarily inquiring as to whether employees are taking prescribed medications as this may solicit information regarding a disability. Should an adverse employment action subsequently be taken against the employee, a charge of discrimination under the ADA could be filed.
• Without reasonable suspicion for the drug test, the manager may not have been following the company’s drug & alcohol policy. Inconsistent enforcement and application of company policy can create problems for the company.
• The manager’s actions have demoralized a long time employee. The employee may not feel valued by the company and in turn may not be as loyal as she was before her privacy was violated.

NAE strongly advises its members to make sure that the entire management team is well trained in best practices that are consistent with the company’s policies and procedures, not to mention the terms of any collective bargaining agreement if the company is unionized.  Managers and supervisors are considered to be officially representing the company when they take these kinds of actions.  If NAE can help with any training needs you may have please don’t hesitate to contact us.