Terminated Employee - Drug Test Pos. - HIPPA ..unemployment office
turbo
78 Posts
I have a complicated issue.
1. Long-time employee (over 50 and African American) of company is selcted for random testing. Goes and signs off on consent form that if I test positive today I loose my job.
2. He tests positive - says he ate brownies his nephew made that had marijuana in them.
3. Doesn't matter he is terminated - last December. He is told that he job will be posted in early January - and that he can reapply - but as with anyone else applying and being offered a job - he will have to pass drug test.
4. He applies, tests negative is hired 1/5/04.
5. In April he is up for his 90-day review. He review is awful - scores 1.54 out of 4 on the ABCU rating and it is unacceptable.
6. Any new employee who doesn't cut it in the first 90 days is let go.
7. He is termianted today 5/3/04 - after reviews are completed and owner says cut him loose.
Questions.
He is going to file unemployment - I only discuss this employment of 90 days and nothing prior to 1/5/04 Correct?
What if he tells unemployment that he was fired and rehired and why? do I confirm that? Is that a HIPPA violation?
Or not because on the job - and company paid for the testing?
His performance before his orginal termination was not great - but he still worked here for years..but the company is now going through all reviews and setting and enforcing performance standards..and any employee who scored as poorly as he did intheir 1sy 90 days would have been termianted no questions asked.
We are in Texas.
Employee didn't ake the termination well. He said his supervisor doesn't like him and that no one can do his job as well as he can.
Bottom line is - his performance has been so bad others who supervised him prior to this period were just doing hte work he didn't to get it done. New appinted supervisor - won't do the work for him and he couldn't be told how to get it done because 'his way' is hte right way.
He says the reviews were not valid because he is a hard worker. He challenged us to find anyone who could do better than him.
We are not going to rehire anyone now - because others have been covering for him for so long - that they can do the job without him. He built crates for shipping our products.
So he will not be replaced by a new hire.
Do we have any issues? I don't think so..anyone out there think so.
1. Long-time employee (over 50 and African American) of company is selcted for random testing. Goes and signs off on consent form that if I test positive today I loose my job.
2. He tests positive - says he ate brownies his nephew made that had marijuana in them.
3. Doesn't matter he is terminated - last December. He is told that he job will be posted in early January - and that he can reapply - but as with anyone else applying and being offered a job - he will have to pass drug test.
4. He applies, tests negative is hired 1/5/04.
5. In April he is up for his 90-day review. He review is awful - scores 1.54 out of 4 on the ABCU rating and it is unacceptable.
6. Any new employee who doesn't cut it in the first 90 days is let go.
7. He is termianted today 5/3/04 - after reviews are completed and owner says cut him loose.
Questions.
He is going to file unemployment - I only discuss this employment of 90 days and nothing prior to 1/5/04 Correct?
What if he tells unemployment that he was fired and rehired and why? do I confirm that? Is that a HIPPA violation?
Or not because on the job - and company paid for the testing?
His performance before his orginal termination was not great - but he still worked here for years..but the company is now going through all reviews and setting and enforcing performance standards..and any employee who scored as poorly as he did intheir 1sy 90 days would have been termianted no questions asked.
We are in Texas.
Employee didn't ake the termination well. He said his supervisor doesn't like him and that no one can do his job as well as he can.
Bottom line is - his performance has been so bad others who supervised him prior to this period were just doing hte work he didn't to get it done. New appinted supervisor - won't do the work for him and he couldn't be told how to get it done because 'his way' is hte right way.
He says the reviews were not valid because he is a hard worker. He challenged us to find anyone who could do better than him.
We are not going to rehire anyone now - because others have been covering for him for so long - that they can do the job without him. He built crates for shipping our products.
So he will not be replaced by a new hire.
Do we have any issues? I don't think so..anyone out there think so.
Comments
I wish you well and caution that you have verification that other former employees whose scores were as low as his were terminated as well.
He had the lowest performance score of everyone in Operations at a 1.54
The next lowest score just under average 1.75- was received in Jan. and the person, who has been here longer than 90 days, was given 90 days - which ended this week as well to bring up th performance score. He has brought his score up but only marginally and still not to a 2 - average. He was going to be terminated this month as well...but he was chosen for random drug testing last Tuesday and opted out of testing for 2 weeks ( we offer a two week suspension and 2 negative test results to return to the job as a one-time only option under our random testing program) He says he didn't use it but was in a car with 4 others who were smoking pot...any way..he'll return in about 10 days if tests are negative and then he will be let go. He is hispanic and young and has been with the company 8 months and tested negative when he started back in Sept.
The only other employee under a 2. rating in Operations during his annual review in Jan. is now be talked with - has a different supervisor who is dragging his feet about a probabtion for the employee to get his rating up to a 2 or better in the next 30 days. He is hispanic and young been with the company 4 years
We are squared away I think since only the 2 other employees with less than a 2 are also up for termination and corrective performane steps and have both exceeded their 90-dy probabtionary time period with company.
You may also wish to consider a standard cutoff score by which you terminate automatically. There is little difference between the three scores you mentioned, and that opens you up to claims of these decisions being arbitrary.
You mentioned the race/ethnicity of the three employees -- and I do understand that you wanted to indicate that the employees were in protected classes -- however, there is no such thing as protection when an employer is dealing fairly with drug usage and documented performance.
Also -- you can not test positive for drugs by simply being exposed to smoking in a car. That one was tried on me just the other month. The employee is no longer with us.
Dont allow management to stall their feet on the other 2, because you will need these to defend your practice for the EEOC charge that will be filed.
I have to ask the question everyone else is thinking- What possessed Management to rehire a known poor performer?
The president didn't want the company to look like a bad guy and didn't want to go head to head with me...so he got four others - two owners and a manager and COO to negociate the termination - and rehire offer - despite my objections.
Frankly - they now see the error of their ways - as he claimed an injury on the job about 8 weeks ago - the employee was out for a week and returned and there was no real injury after investigation - and no claim was filed against us so far on that.
When his performance review came back - I said no other new employee with this kind of performance would be allowed to stay on the job --we are not going to treat him differently - we can't.....that's when I suggested we look at a grid and determine where we stand on 90 day reviews - we are clean there - no one who performed this low has ever been kept beyond 90 days.
Since January we have been using reviews for performance to correct or termiante....employees who are below the 2 mark have been termianted there are 2 so far ....both with 1 to 1.5 years of tenure and both White - one young male the other white young female.
So we have the two others who are on a short probationary period 30 days both young and hispanic..who will ultimately be terminated because of poor performance.
So .....this small company grown bigger over the past several years is learning its lessons.....