Beware

of random alcohol and drug testing.


The PRIA statute bars a former employee from filing a defamation action or claim against companies for providing this type of detrimental information, but he maintained that since he believed the test was fraudulent the result was false information, therefore the company had defamed him.

The case was initially filed in the State Court of Nevada but was removed to the Federal District Court in Las Vegas by the company based on the federal issues and statutes involved.

Wrongful discharge 101

This event took place in Nevada. Nevada is an “at will” employment state. As such an employer can discharge anybody for no reason at all according to the law. You are employed at the pleasure of your employer. Therefore, it would appear that this man would have no recourse and could not win his case based on a wrongful discharge from his job. However, there are exceptions to “at will” status.

Where strong public policy is involved it should and does create an exception to the rule. This captain maintained that Federal Air Regulations involving public safety, namely the drug and alcohol testing regulations plus all the rules governing their application, clearly involve fundamental issues relating to public safety. Indeed, it was because of the federal rules and questions involved that the case was removed by the employer to the Federal Court. The captain alleged in his complaint that the test was unlawfully administered and thus fraudulent.

The company handbook

All regulated air carriers are required to provide their drug and alcohol handbook to new employees so that they will know the rules that apply to their employment regarding drug and alcohol usage and the penalties for illegal usage. It includes the FARs involved with drug and alcohol testing.

A typical company handbook excerpt regarding random testing that is relevant to this case follows:

Employees will only be tested (randomly) for alcohol while they are at the work site (this could include airports other than our home base). Therefore, a pilot on call for duty while at home has not violated the regulations if he or she has an alcoholic beverage unless he or she reports for duty within eight hours of consuming such alcohol. He or she is not subject to alcohol testing until he or she reports for work. Therefore, if he or she is called to work and has consumed alcohol within the eight-hour time frame he or she would have to decline to report until eight hours has passed with no alcohol consumption. However, a pilot waiting to fly an aircraft in the employee lounge is subject to testing as he or she is immediately available to fly the aircraft.”

If these rules applied to our captain in this case he would not have been subject to the random test that he was forced to take. He could have declined the test until eight hours had passed or until he was required to report for work at 5 p.m. on the day he was called.

Many pilots and others subject to random tests simply do not answer the company’s telephone calls when at home for the obvious reason. If they don’t get the message to report for a test they cannot be faulted for not appearing.

Unlike illicit drugs, alcoholic beverage consumption is not against the law. Hence they can certainly be consumed legally while off duty and or at home. One of the arguments the company would make is that while in the company hotel (therefore not at home) he was subject to testing.

The company’s egregious conduct … punitive damages

This case is one of manifest unjust conduct on the part of the company concerned. A listing of their conduct which argues for punitive damages in addition to other damages, if it ever gets to trial, follows:

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