Which drug-testing law applies? Who knows?

This drug-testing case would make a great law school final exam.

Shawn Olson of Minnesota was offered a job in West Virginia by Push, Inc., a company based in Wisconsin. Mr. Olson was asked to complete a pre-hire drug test, which was originally going to be performed in Push’s state of Wisconsin. However, for Mr. Olson’s convenience, the company allowed Mr. Olson to be tested in Minnesota.

Was this a Wisconsin badger drug test? After all, the employer was based in Wisconsin.

The Minnesota Drug and Alcohol Testing in the Workplace Act prohibits employers from terminating employees or refusing to hire based on an initial drug screen unless the initial screen is confirmed by a second test. West Virginia and Wisconsin do not require a confirmation test.

You guessed it. Mr. Olson took the test in Minnesota, and while the results were pending, he started work for Push in West Virginia. (Big mistake here. Employers should never allow new hires to start work before they have the drug test results back.) After he had already started work, Mr. Olson’s test results came back as too “diluted.” Some employers treat “dilute” samples as worse than a “positive” – they treat it as dishonesty – an attempt to falsify or tamper with the test results. Push wasn’t that tough, but it treated a “dilute” sample as a positive result, which still resulted in Mr. Olson’s termination.

. . . or was it a West Virginia Mountaineer drug test?

Mr. Olson sued Push under the Minnesota DATWA. Push removed the lawsuit from Minnesota state court to federal court, and moved to dismiss. The issue was whether Minnesota law applied to a drug test that was performed in Minnesota, when both the employer and the job were in other states. Mr. Olson argued that, under Minnesota law, the employer was “doing business” in Minnesota and therefore was subject to Minnesota drug testing laws.

If a urine sample is too dilute, the drug test may not detect sufficient amounts of an illegal drug in the individual’s system. It is possible to dilute a urine sample by drinking a large amount of water before the test.

A federal judge in Minnesota disagreed. Although she did not decide which state’s laws did apply to this test, she found that Minnesota law did not. First, she found that the Minnesota statute did not apply to employment relationships outside Minnesota. She also found that the approach advocated by Mr. Olson would probably violate the Commerce Clause of the U.S. Constitution because of the chaos that could result if “not one, but many or every, State adopted similar legislation” that applied to testing in other states.

Whatever law applies, it isn't Minnesota law!

So, when push came to shove, Push won. But here are some preventive steps that may help employers avoid even the hassle of eventually winning in federal court:

*Be nice, but don’t be too nice. Make sure you fully understand the laws in other states before you allow new hires (not to mention employees) to take significant actions in those other states. That includes, but is not limited to, drug testing. I wonder if Push will ever let another employee be tested in his home state for convenience instead of coming to Wisconsin. It's too bad that Mr. Olson had to ruin it for everybody.

*Don’t let a new hire start work until after you receive the drug test result. You never know, but if Push had just withdrawn its offer of hire rather than firing Mr. Olson after he’d started work, maybe Mr. Olson would not have become angry enough to sue.

On a more positive note, Push did a lot that was right. Push was smart to check for “diluteness” and to take appropriate action because this is a well-recognized method for cheating on a drug test. The company was also smart to have removed the case to federal court, where the judges are more likely to see the Constitutional implications of extraterritorial application of state laws.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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