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Federal DOT to deny employment. Need DP advice

As many of you may already know the federal department of transportation has joined heavily in the data collecting game through their background checks, drug testing regulations and various new and growing certifications.

The following email thread is the result of an employer submitting a document to a US department of transportation drug test consortium on his employee who has consented to the private company's drug test policy but not to that of the DOT regulation under grounds of the 4th amendment and the regulation's own subtext under its section 40.27 that can not force consent.

This is a real world situation with a deadline to resolve of this week. Any resources that can assist in challenging this regulation further and keeping this man's job, would be helpful.

I can find no other challenges either successful or unsuccessful in my searches thus far.
Thanks for putting the great knowledge of the DP to this task.

Beginning of thread:
Employee to Owner of private company;

"Dear Jim,
Jane sent me over a form that would have me give consent to providing drug test information on me from past employers and ACME through a intermediary testing consortium to the government by way of the US dept of Transportation.

Where as I have no issue with ACME's right to drug test as a private employer, I do have a problem with sending info to the government that I can find no legal basis for them to demand.

The law in its subsections may say "obligated to request", that is not a legally binding order to comply nor, without voluntary compliance, would it likely be Constitutional.

Recently when I provided the urine sample, when asked to provide my ss# I reminded the sample taker that I was not required to provide that. He stated to me that, I was right, but I was the first person they had ever had that had brought it up. We had a nice chat after that...

Here is the law on this issue:
Included buried deeply in the law passed under "Bush the 1st" titled, The Drug-Free Workplace Act of 1988 , in section 40.27 of:
TITLE 49: TRANSPORTATION
PART 40 - PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS (Updated September 27, 2011)
Subpart B - Employer Responsibilities
The entry states this question and answer:
40.27
"May an employer require an employee to sign a consent or release in connection
with the DOT drug and alcohol testing program?
No, as an employer, you must not require an employee to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the drug or alcohol testing process covered by this part (including, but not limited to, collections, laboratory testing, MRO and SAP services)."
Link to this document on the DOT website here;
http://www.dot.gov/sites/dot.dev/files/docs/PART40.pdf

Even the sponsors must have assumed when writing this law they could not get compliance under the Constitution without the key, consent of the employee (or potential employee). They also needed consent of the companies they work for to collect the data tied to employment records, so they created the perceived threat of job discrimination to the employee, and real threat to employers that they might lose or not "qualify" for federally funded projects should they not comply with "requests". It would seem they could not get away with this type of collection by demanding it, it had to be "by consent". The Supreme Court back 1988 would not likely have allowed this law to stand had its provisions not been voluntary.

Sadly, not enough people stood up and said no to this abuse of our rights of privacy under the 4th Amendment so it has become part of the employment culture and we are still enduring it today. Far too many more people today are uneducated to their rights, or even this law itself, and live in fear for their livelihood in saying no.

I, personally can not consent to giving the government this data. The law does not require it. And I can not legally be penalized for not following their own regulation per section 40.27 therefore I do not wish to comply with the dot reporting standard suggested in the law.

I have no problem with a private employer like ACME requesting a drug test as a condition of employment on a contractual basis with an employee but, the government demanding this through this underhanded "law" that hopes for ignorance and consent is not something I am willing to participate in.

I hope you understand Jim. I am not trying to make headaches but, I in good conscience, can not submit to this. I am also not saying anything to anyone else in the crew about this. Nor would I in any other way undermine a work environment in such a way as suggesting non-compliance to someone that is not willing to learn and know their rights on their own.

This is between you and me. If others choose to comply that is their business. We all need to do what we can to push back on this type of underhanded rule and corruption of our Constitution through the coercion of lies, manipulation, and arbitrary rule making under the guise of lawfulness.
Sincerely,
John"

Letter from private employer owner to employee;

"Hey John,
Below is the response from Pipeline Testing Consortium Inc. (real name of company) to your paperwork Jane sent in to them.
My hands are tied on this, right wrong or indifferent. I don’t want to push back on this any further and jeopardize them dropping us.(*note,If government approved drug testing consortiums drop contractors they can lose jobs)
I am sorry that this is requested of us, and I do respect your feelings on this matter, but I’m sure you know what is at stake for me and everyone else working for ACME.
I do wish you will think about this and reconsider.
Thanks John."

Copy of response from Government approved testing consortium to employer, provided to employee;

"This sounds like a fun one. It sounds like he is consenting to your policy but not DOT regulations. I think his interpretation is off. What you have provided in your attachment is just an acknowledgement that he has been given the policy and he knows that he is subject to testing. It does say that this is a condition of employment. He has referenced the 40.27 regulation but that has nothing to do with this form. That regulation is saying that as an employer you may not ask him to sign a consent form every time he is up for testing. 40.25 says that he has to give his written consent or he may not perform safety sensitive functions. So if he does not sign and date the history check/safety performance forms and give his social then he may not work in a DOT position. So he will not be able to work in a safety sensitive job if he is not going to follow DOT regulations. Let me know if you have any questions."

Subpart B - Employer Responsibilities

§ 40.25 Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?

(a) Yes, as an employer, you must, after obtaining an employee's written consent, request the information about the employee listed in paragraph (b) of this section. This requirement applies only to employees seeking to begin performing safety-sensitive duties for you for the first time (i.e., a new hire, an employee transfers into a safety-sensitive position). If the employee refuses to provide this written consent, you must not permit the employee to perform safety-sensitive functions.

§ 40.27 May an employer require an employee to sign a consent or release in connection with the DOT drug and alcohol testing program?

No, as an employer, you must not require an employee to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the drug or alcohol testing process covered by this part (including, but not limited to, collections, laboratory testing, MRO and SAP services).

End of thread:

We would like to hear your thoughts, get your advice, and seek any resources you may have to challenge this with standing.
Thanks DP!



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