Generic Employment Law Question

[Syphonfilter]

Ok, I realize this may not be anyone's specialty, but I thought I'd try it here. I actually spoke to Rick Collins on the phone a long while back when my "incident" happened, but due to monetary circumstances never did anything.

In May of last year my career as a Texas cop ended as I resigned after testing positive for 3 AAS. I gave my department an opening by looking at BB websites at work and they used reasonable suspicion to "ask" me to take a voluntary piss test. At the time, I really had nothing to hide (or thought I didn't) and gave one. I was called by the MRO and told I had "no illicit drugs" in my system and a week later, I was called again by a different doctor who said that the other doctor made a mistake and I had 3 AAS in my system (nortestosterone, winstrol, and methyltest). I have never used winny or methyltest and had no explanation (also hadn't used Deca during my employment either). I was 215lbs at 5'9", hardly a massmonster, but thick enough to draw attention to myself. Bottom line is, I resigned and as such my career has come to an end as no agency believes me nor will they touch me or take a chance on me. Rick gave me many explanations as to "cross contamination" of supplements and I spoke with others in the industry who gave me a wealth of information.

This can go on, however, my question is this: I recently had applied with a semi governmental agency where I would basically be a background investigator. I have always been honest and up front with police departments concerning what happened at my previous employer, figuring that they will find out anywas as PDs talk, but that never works in my favor. This time I did not say anything, hoping that nothing would come out, but I just learned that someone at the department said something to the investigator and they were concerned as to why I said nothing at the beginning of the process. I'm tired of all this shit, and I'm pissed as I was under the impression that if you resign, regardless of forced or not, it is STILL a resignation and as such an employer can only say yes he worked here, yes or no he was a good employee, yes or no he called in sick alot and so on and so forth, but NOT "hey yeah he resigned for steroid use." Does anyone know if I'm even in the partial right and if I am do I have any type of legal recourse??

Thanks in advance.

 

[Syphonfilter]

not even an idea huh?

 

[liftshard]

work ain't dicey, is it Roid Warrior?

I can answer this one.

So long as they tell the truth, there is nothing you can do about past references. A person asked and they can be told, assuming there is no law to the contrary, the facts about your previous employment. Most people are reluctant to give negative reviews out of fear of being sued in tort, say for defamation, but so long as the information is accurate, I see that you have no recourse here.

If you have a positive drug test, the person they contact may say "he resigned." They should not give a reason, because there really isn't one unless you stated why you were resigning. They may say "he had a positive drug test prior to his resignation." I doubt anyone is going to go out on a limb and say "he resigned BECAUSE of xyz," but they can recite the facts.

If you were not using roids, I have to question why you didn't dispute the tests. Your conduct looks an awful lot like tacit admission of the accusation, but I'm sure you know that. As far as disclosure of these facts to a future putative employer, if you lie, you can guarantee that you'll be fired if they find out. For disclosure, remember that you are free to give your version of events. I would seek to maintain better control over the spin.

 

[Syphonfilter]

Thanks for the response, I did refute the tests, however, my options according to my department/city policy were limited. I could have opted to pay out of my own pocket for a test at my choice of lab from the original sample, not a new and clean one. I sat on administrative leave for a month while I disputed the accusations however, the Chief is a bonafide asshole and before I even gave my side he had already made up his mind. He wouldn't even listen to one of the Captain's who was on my side for the most part. When whoever it was that was contacted talked to my investigator, they told her I resigned over "allegations of steroid use". According to Human Resources, they don't say anything to anyone other than I worked there from date to date and my salary was so and so. I was also told noone was allowed access to my medical records.

I was really hoping I had some type of recourse....oh well.

 

[liftshard]

Well...you DID resign over accusations of steroid use.

Your only choice here is to sue the rat for defamation, but you have a high hurdle to cross to recover any money from them. It may be worth a shot; I mean, they HAVE just cost you a job. It is seriously risky for people in the dept to be giving reviews over the phone, giving the "skinny" on people. Nobody in a vaguely professional business (the police aren't one) would do that. I would never answer questions about a coworker's dismissal. Even at a nightclub I go to, reasons for dismissal of the former bartender are NOT discussed by other employees and I even know them. There is legal jeopardy that you place your employer in that they don't want when you start giving editorials over past job performance. In this case, the rat's editorial has cost you your current job position, right? So, the first prong of defamation is there...actual monetary loss. Companies are normally scared of getting this prong because the other ones are all arguable. Pecuniary loss, when you have it, is easy to substantiate and it's when lawsuits get real. They're only academic until someone costs somebody else real money.

At some point, you're going to have to go after that false positive. If you were not juicing you should never, ever have resigned. You should have forced them to fire you and gone down with guns blazing. When the issue of past employment comes up, YOU must control the spin.

A particular style of explanation of your previous employment history would be that you are completely clean and offered to take a polygraph examination, but nobody seemed interested. You are of the impression that the tests were forged and that the Chief had political issues with you because of your race. In addition, you sought access to the certified chain of custody of your sample and you were denied access to that sample as well. You immediately volunteered to give a new sample with representatives from both sides present and to pay for testing at an independent, disconnected laboratory yourself, but this was not welcomed by the Chief. You were initially notified that there were no positives by a technician, but then, a technician at another lab contacted you a week later with positives for various AAS, which you have never used. You were denied access to the testing records, chain of custody, or any attempt to make an inquiry into the procedures used to attain these results. You resigned because of total disgust and lack of fundamental respect for the operation in question. You don't associate yourself with people who cannot comport themselves with what you deem to be reasonable standards of ethics and you will not work for any similar employer in the future. You conduct yourself always in accordance with the law and standards of professional conduct and have no desire whatsoever to be employed for any period of time by those who don't. So, you read the writing on the wall and decided that it would be best to resign as opposed to giving these people further chances to give you official demerit.

Now, see how this goes? Of course, I am not counseling you to lie, but I am suggesting that, like I have done with this purely HYPOTHETICAL narrative that is wholly fictional and any resemblance it has to actual persons, places, or events, is purely coincidental, is to give other avenues to say things and to control the initial disclosure and the "first impression" that is taken of you and of them. Some might refer to this as "spin," and that's exactly what it is. You, like an attorney in an argument, give YOUR facts, the facts that are beneficial to YOU, in your way, and how YOU want to. You are not under any obligation to give the other side's facts or argument. You make your case and let the chips fall. If you make your case better and with erudition, you will tend to win more often than not.

For your paticulars, I would suggest seeing a tort attorney regarding a defamation or tortious interference case with respect to the person who gave that "review" to your investigator, assuming that it costs you this job.

 

[Syphonfilter]

Well, the investigator talked to someone within my department face to face, although she would not tell me who she spoke to...my ex supervisor I guess......and yes, it did cost me this job, which I would have had in the bag if none of this came up, as a job offer had been made prior to the background investigation.

As far as what I should have done.....hindsight is 20/20 and there are alot of things I should have done back then. However, seeing as how it was an at will agency, I had no representation, and so on and so forth, my best bet was to resign. In law enforcement, basically, if you're fired, chances are you never ever ever get back in, so I figured my best bet was to save face, resign, and have a small chance of finding my way back in. Turns out, either situation would have resulted in the same way......except that the only thing my peace officer license states now is "resigned" and not "terminated for substance abuse" but even that counts for shit right now.

Thanks for the response

 

[liftshard]

If you do decide to sue in tort, you will be able to subpoena or otherwise discover the person that she spoke to in the department. At that point, you have the department implicated. I would seek legal counsel immediately as you have suffered quite a bit of monetary loss.

 

[Syphonfilter]

Great, now I gotta find someone whose not afraid to take on a police department...IF, they agree I have a case.

Thanks for taking the time in this thread

 

[liftshard]

Sure...you may find no lawyer willing to pursue this action. I'm assuming that you don't have enough money to sue it out on your own, and this type of action is definitely expensive. So, you'll need to find a contingent-fee attorney and they may not be interested. They may see this as not rising to actionable defamation or any other recoverable tort.

I really feel for you because mistakes should not punish you the rest of your life and I wish you the best.

 

[Syphonfilter]

Much appreciated.

 

[ROID WARRIOR]

Syphonfilter:

You know as well as I that if you apply to USIS or any other position of public trust there will be a full and complete BI done on you, just as you'd be doing on potential candidates. They're not only going to talk with your prior employers, one of the specific questions involves alcohol and illegal drug use. They'll also request and copy your employment file. Even though you resigned, there must be a record in your file of those positive test findings. You needed to challenge those test results in a timely manner, and exhaust all administrative remedies. There isn't going to be a defamation action unless you can prove that the prior employer knew that the drug test was a false positive. Otherwise, there's no action for telling the truth. You tested positive and didn't challenge the results, but resigned. That's how USIS, or whoever, is going to see it, and you can't force them to give you the job.

RW

 

[Syphonfilter]

Roid Warrior

I was aware that a full investigation would have been performed, I had no doubt about that. I chose to take a different route from what I had been doing and that was rather than being up front and honest about what happened (which I had been doing) I chose to leave that information out. I had already spoken to the Human Resources department in regards to what they could say and all she said was that they would only say when I had worked there and when I left and what my salary was. She advised that noone is able to look into my medical file. I have looked at my personnel file several times and nothing was mentioned within it concerning what happpened.

I just thought and I guess I was wrong, that if you resigned from an employer, no matter what led to that resignation, that all the former employer could say was that you worked from this date to this date, that you showed up on time, or did or didn't call in sick alot, and earned this much in salary. I thought there was some type of privacy involved in resignations as opposed to terminations. I fought it as much as I could while there, within my power, without legal representation, but obviously not enough............

If they can keep telling this to anyone who calls, then no freakin job is ever gonna be mine........therein lies my frustration.

 

[ROID WARRIOR]

Do they perform a pre-emloyment poly? I think I read elsewhere on the board that you have had no problem passing them in the past. I think the poly is bullshit, but these agencies place great stock in them.

The government contradicts itself on the poly, they use it to disquaify candidates, yet when one wants to use a passing test to exonerate themselves, they refuse to accept it and argue against its admissibility because it is unreliable. U.S. v. Scheffer 523 U.S. 303 is the best example. The same federal government that uses the poly to screen applicants for the Secret Service or CIA (Aldrich Ames was polygraphed twice per year, for nine years and passed, even though he was lying), argued that the reuslts should be inadmissible in a trial pursuant to the UCMJ. Scheffer involved a service member, in a sitaution not unlike Syphonfilter's, was found positive for meth in the whiz quiz, yet passed the poly. The service member argued that the poly should be admissible. Ironically, the government, while conducting polygraph exam's across the street to screen FBI applicants, argued to the Supreme Court that because it is unscientific and unreliable, it should be per se inadmissible.

Unfortunately, The SCT, with J. Thomas writng the opinion for the majority agreed with the government and held the poly per se inadmisssible under the UCMJ. In so writing, Thomas stated that there is no evidence that the poly is reliable.

However, knowing that it is unreliable, the government has no problem disqualifying otherwise qualified candidates and destroying dreams and careers.

RW

 

[liftshard]

If the positive test result is in an official employment record which can be disclosed, it's going to follow you around.

RW, for people working for a previous employer to *claim* off-the-record that "so and so resigned because of xyz" is rife with peril and that is why most will specifically advise their employees not to discuss coworkers' comings and goings with outsiders. Normally, all of these types of questions are routed through HR depts or appropriate management, who normally will not give specific reasons a person left, especially if they were not fired. Most companies go out of their way to avoid incurring liability and will not state reasons, even documented ones, for dismissal, much less resignation. This is because they don't want to be sued. Saying something negative, even in a job review, about a person which subsequently costs them a job is begging to get sued.

supernav - if he has an official employment record documenting a positive drug test, that certainly can be used against him. At issue here is whether or not his previous employers are "out of line" in saying things like "he quit because of a positive drug test." I don't know of too many people working for any company who would disclose that type of information to a potential future employer. It is a really bad idea, from a legal perspective, to give editorials or opinions on why a person quit, especially if your disclosure causes their putative employer to not hire them.

 

[Syphonfilter]

RW, you are correct, I have never failed a polygraph in the past, which is amazing, as I am a high strung individual and get myself worked up fairly easily. The job which I applied to, as far as I know, does/did not use a polygraph. The simple fact of the matter is, unless my 7 page affidavit changes anything, I lost the opportunity to work for the company based on what a former supervisor said to the background investigator. In this case, after asking around a bit, I believe it might be my former captain who opened his mouth.

Again, hindsight is always 20/20, as I was actually going to let them fire me, but decided at the last second, literally, that resignation was my best bet. There are so many things I would do differently if I could go back in time however, fearing nothing, I gave a sample of urine......blah blah blah.........I thought at the very least they would say I merely resigned for outside reasons, but hell, they stuck the knife in one more time. It's just really hard getting back on your feet after an incident like this ...........fuck...........talk about major frustration!!

Thanks for all the responses..........