A friend of mine was at work a couple of days ago and her manager (who is looking for any reason possible to get rid of her) claimed that she smelled alcohol on my friends breath…at 8 in the morning. :rolleyes: Anyway, the manager hauled her to the HR office and a breathalyzer test was performed. Before the test was done, my friend was informed that if she either refused to do the test or couldn’t do the test, it would be taken as failing the test. Now, I can understand that refusal to do the test would be taken as failing it. But my friend smokes. (Yeah, yeah, I know she should quit.) Consequently, she can’t blow through the machine with as much air as it takes to do the test correctly. So there was no result. As such, she was suspended from her job pending investigation by the manager that is looking for any reason she can to get rid of my friend.
If any of you have faced a similar experience, what did you do to handle the situation? It just seems to me that firing a person (if it goes that far) would be opening the business up to one heck of a lawsuit.
Does it really take that much effort to blow through one of those things?
If it does take significant effort I would imagine that they would be very vulnerable to a suit based on sexual discrimination since an inability to perform the test would be much more likely with a female than a male.
If you can prove discrimination on protected grounds - race, creed, colour, national origin, sex - then she would be able to ding them pretty hard.
From what I understand, the USA does not have anywhere near the protection of privacy rights that the civilized world does; most countries don’t allow this sort of testing. Plus in some states, the “at-will” provisions kick in too. In that case, any dismissal simply means she can come after them for what is the legal minimum separation pay (2 weeks?) since they don’t need a reason to fire her. Firing for valid cause - drunk on the job, theft, insubordination (i.e. refusing the test), chronic latesness, etc. - only means no separation pay is required. So suing might get you a whole 2 weeks’ pay.
Before the test they told her that for an accurate test she had to blow “long and hard” through the machine. Whether or not that is true I don’t know. But since she smokes, she told them she would do her best. Apparently her best wasn’t good enough. At least she wasn’t fired directly for failing the test.
No matter how it turns out, this vindictive “manager” will probably get her way. If the test had been an outright positive, my friend would have been fired on the spot. Since she was suspended pending a review by this manager, she can wait a few days and let my friend come back to work, knowing full will that my friend will probably tell her to stuff the place where the sun don’t shine. Either way, the worthless manager gets her way.
In this case, it has nothing to do with discrimination. It is pure dislike on the part of the manager. Why that is is a good question. The business has approximately 25 employees and you’d be hard pressed to find any that like this manager. She is a loose cannon that has no real clue how to run a business. (She didn’t even know that a fax machine needed paper to print a fax. Need I say more?) Common sense doesn’t even enter in to what she does and heaven forbid that anyone should say anything.
So if somewhere has an ‘at-will’ provision then all equality protection becomes all but meaningless?
In the UK people can be fired ‘at will’ until they have been working for an employer a certain length of time but that does not mean that if the employee can prove that the actual grounds were race/sex/religion that the employer gets away with it.
In an at-will employment state you can be fired for:
a) a good reason;
b) a bad reason; or
c) no reason at all
but you cannot be fired for a protected reason - protected meaning gender, religion, race, etc.
So, intelligent corporations in an at-will employment state always provide the same reason for firing people: none
Of course, if you’re unionized, things are much different.
I have no idea what is going on in the OP’s case - it seems weird, but people are weird in general, so whatever. She could try to say that she was fired because she was unable to blow through the tube, and that that was because she’s a woman, but the company would probably argue that she was fired because she had alcohol on her breath. They only gave her the chance to blow through the tube to redeem herself, and the only reason that she couldn’t do that was because she’s a smoker (not a protected class).
I am not saying that I agree with either argument - it’s just stuff that they might say.
This is not legal advice. The only good legal advice is “Go see an attorney.”
Yes, but don’t courts actually look beyond bland, self serving statements by the company involved?
For example, if they fire a black worker when they have 3 black and 50 white workers on the same job and give no reason would a court not enquire as to what the reason was?
Of course the court would. What I meant was that if a company wanted to fire someone for a perfectly good reason, they are usually better off just firing them for no reason - that way there’s no argument over the validity of the reason.
Sounds fishy to me. I would guess that the company merely has a “PBT” (portable breath test or preliminary breath test). These are the small units that police officers carry in their cars (you can also buy cheaper versions for personal use at places like Sharper Image). PBTs are not really useful for establishing an actual blood alcohol level, and as a result the results are not generally admissible in court, but they are a good “pass/fail” test to determine the presence of alcohol on the breath. Anyway, PBTs, unlike the certified breathalyzers that are used at police stations, don’t have any indicator of whether the person is blowing sufficiently hard to get a good reading. This determination is completely up to the operator. It would be as easy as pie for the person administering the test to say that your friend didn’t blow hard enough, and there would be no way for your friend to dispute it, as there is no objective indicator on the device to refer to. There are disposable tubes available for PBTs that are a kind of whistle, and you have to blow hard enough to get a whistle sound out of it, but I don’t think these are widely used and the ones I’ve used have been pretty much worthless.
Bottom line, though, being a smoker should not compromise your lungs to the point where you can’t give a good sample. If you can’t give a good sample on a PBT, you should be in the hospital on a respirator. So I would put my money on one of the following two scenarios:
The operator simply claimed she didn’t blow hard enough, knowing that noone could ever possibly prove her wrong;
Your friend didn’t want to blow hard because she had something to hide.
I run into #2 all the time. It’s pretty easy to tell when someone is holding back and barely blowing. I always just take a reading on this anyway, since I am really only looking for a pass/fail outcome and I can get that even if they’re not blowing hard. It’s also possible that the operator in your friend’s case was totally incompetent. That’s not hard to believe because I wouldn’t expect an HR person to know what they were doing with a PBT. I also wouldn’t expect an HR department to get these things calibrated regularly which you really need to do. That could be a reason for her to claim your friend didn’t blow hard enough- she knows they have not kept up with required calibrations so any positive reading could be challenged.
The other argument would be that even if she did not blow enough - if she was even mildly intoxicated, that would produce some reading - if she blew half or a third of a normal breath, there should be some register on the device. The police requirement for the huge breath is to get an accurate reading - 0.08 and you’re under arrest, 0.07 and you go free (in some places). In that case, half a breath might get you out of big trouble.
If her workplace had a zero tolerance and she blew zero, even with half a breath, then her level of intoxication was likely well below the ability of the machine to register. If she even blew 0.01 or 0.02, then she violated the “zero-tolerance”. They didn’t fire her, so I assume the result is zero.
IIRC the “Americans with Disabilities” act says that you cannot discriminate on the basis of a handicap or infirmity - so bad lungs would be an infirmity (with a good lawyer). IANAL but if that’s a protected grounds then she has a case.
Also, there’s the catch 22 that you can often sue or file a human rights complaint, but one has to be settled before you proceed with the other (IANAL) in many places, so she has to decide which route.
Consult a lawyer. Threaten to sue the manager personally since she seems to be exceeding the bounds of her job (so she has to hire her own lawyer) jointly with the company.
But if the HR person or boss used “not blowing hard enough” as an excuse, then they have put that on the record. They can’t later use excuses like “she didn’t blow at all” or “and it’s possible our machine was broken”. And as you mention, if there is no reliable indicator of blow volume, how would they know she wasn’t acheiving maximum throughput?
Which repeats the question - how how little can a person blow and still get a zero reading while intoxicated? If the person was say, half impaired - 0.04 Blood alcohol - wouldn’t even a partial blow register something (assuming calibration etc. not an issue?)
And… to what extent does Indian Land exempt an employer from state laws? Is it strictly Federal laws that apply? (What are the federal laws that apply?)
A positive reading on a breathalyzer or PBT does not necessarily indicate the presence of alcohol. If your friend is diabetic and has a build-up of acetone, it will give a positive reading as well.
I’m a little suspicious of any breathalyzer used in the civilian world. Police departments are required to check the calibration on their machines regularly; eg, weekly.
The reason to blow “long and hard” is to get an air sample from the bottom of your lungs. I’ve swished some mouthwash and blown immediately into a PBT and taken a reading right as I started blowing (IOW- I tested air from my mouth) and I registered over .5%. I then immediately did a proper test and tested 0%.
I would agree with this, but now that I know this is an indian casino, I’m thinking it may be possible that they have an actual certified breath test machine. These cost many thousands of dollars, so most places don’t have them, but a casino might for security purposes. Anyway, I don’t have a lot of experience with those, but I believe that they will not return a result if there is an insufficient sample. Again, though, the amount of breath required is not so great that I would expect a smoker to be unable to provide a good sample. Otherwise how are all these smokers getting busted for DUI? If you are seriously incapable of providing a sufficient sample, losing your job is the least of your worries. Emphysema or COPD are probably higher on your list of worries at that point.
I guess it comes down to what kind of device they used. If it was a PBT I’m calling bullshit. If it was a certified breath test machine it’s possible that it would not give a result for an insufficient sample.
Was this “machine” a full sized Intoxilyzer or a hand held PBT?
Either way, I’ve had people with full blown emphysema be able to blow enough to get a reading. It requires only a little more effort than putting a straw in a glass of water and blowing.
None of this is to say the manager isn’t screwing with your friend, by the way.