Where I work we have mandatory random drug testing. Before the actual sample is taken we are required to sign a release. What I’d like to know is, how can a mandatory signature be valid and binding?
I’m not argueing the testing itself, just the permission given in the signature.
Peace,
mangeorge
That’s not a forced signature. You are free to refuse to sign it. The consequence of that might be losing your job, though. But it’s still your choice.
A forced signature is when somebody holds a gun to your head and says, “Sign this or I’ll blow your brains out.” Such a signature would not be binding.
But where do you draw the line at the severity of the threat? In one case, the consequence is loss of job, economic stability, etc. In the other, the case is loss of life. How bad do the consequences have to get before it’s considered “coersion”?
Friedo correctly states the general rule.
There are a few cases out there, mostly in the restrictive (employee noncompetition) covenant setting, where a court has held that an employee’s signature is non-binding, at least partly because of special circumstances that made the employee’s demand particularly coercive.
Mostly, though, this argument doesn’t fly. As Friedo says, the employee is free to quit.
A slightly better argument is that there was no consideration for the employee’s agreement to submit to a drug test. Even this won’t work in most states, as continued employment is usually held to be adequate (contractual) consideration.
Sigh. Should have read:
…the employer’s demand…
It’s not a matter of “how bad.” The question is whether the consequence being threatened is a legal one.
“Submit to drug tests or I’ll blow out your brains,” is coercion, because I cannot legally blow out your brains.
“Submit to drug tests or I’ll fire you,” is not coercion, because I can legally fire you for being unwilling to submit to drug tests.
What does the release release?
“I, Joe Doe, do hereby release XXX Corp, YYY Drugtesting, the DEA, and the local police, from any liability involved in mixing up test samples or erroneous or incompetent tests leading to Joe Doe’s loss of employment and/or imprisonment.”
???
No, probably something like, “I John Doe consent for VeryBig Omnicorp to do whatever it likes to this sample that I am now about to produce”. The company can’t take your urine and test it without your consent. However, the company is usually free to fire you if you refuse to give your consent. And you are free to refuse to work for a company that requires a urine sample as a condition of employment.
Could you clarify employee noncompetition?
Is this when you sign a contract saying you won’t work in the same field for XX years after resigning? Like those common for the higher ups in High tech industries?
This is something that happened to me, I was always curious if it was legal.
Came into work on day.
Boss says “Sign this form.”
Me “can I take it to my lawyer first?”
Boss “sign it now or your fired.”
Was a “thou shalt not work for another Locksmith in Madison County of Alabama for two years after leaving this company.”
When I left they mentioned it, once I gave them my lawyers number and address I never heard another word.
was this legal?
Inter Innovation LeFebure, Diebold, and Mosler all required employees to sign noncompetition agreements, and we’d steal one another’s employees on a regular basis. An attorney told me that they’re really difficult to enforce, such that other than as a scare tactic, I wonder why companies bother.
IANAL and all that legal disclaimer stuff…
Back in my contracting days, when you make a lot of money with a little computer knowledge and the willingness to jump ship at a moments notice (unfortunately, I didn’t have the willingness - but I saw a lot of people come and go), it was standard for all the contracting companies to require similar language in their contracts, usually something ridiculous like a 50 mile radius or some such.
The way it wass explained to me when I asked about it was that sort of language was too broad to be enforceable. They couldn’t hold you to something that more or less prevented you from working in your profession entirely. Something that said you can’t quit the contracting company to work for the client they placed you at without their permission (which usually involved payment from the client company) could be enforced, because it didn’t prevent you from working for a different company.
Anecdotal evidence - I saw a lot of different contracting companies threaten a lot of employees at various clients with the broad non-compete they signed. None of them ever followed through.
Using them as a scare tactic is exactly why a lot of companies still bother with them.
I don’ t know if the agreement itself is enforceable (see below), but the “sign it now or you’re fired” bit is probably legal. As someone said above, it’s not coercion, because you can say, “ok, fire me.” That may be a very unappealing option, but that usually doesn’t change the legal analysis.
I don’t know if they’re really difficult to enforce, but they are generally more difficult to enforce than ordinary contracts, because courts will not enforce restrictions that they view as excessive or unreasonable (it varies by jurisdiciton, but I believe that’s the general approach). This is different from other kinds of contracts, because normally a court does not inquire into the reasonableness of a contract’s terms.
Yes, although there are other variants.
Agree with all of this.
How close to coersion the threat of termination comes is, I think, a matter of age and seniority. If one is thirty, and has five years with the company, losing a job can be uncomfortable but not ordinarilly devastating. But if you are sixty+ and in the final years of a long career, termination, especially for cause, can mean spending the rest of your life working at Mc D’s trying to suppliment your SSI. When you’re fired, you lose most of the retirement benefits you’re entitled to. Upper management people of course know this, which is why they universally give themselves “golden parachutes”.
The thirty or so years you’ve invested in the company is gone, and you don’t really have the option of starting over.
So, how about blackmail (extortion)?
Well, nowadays the only jobs that offer retirement or pension benefits are either those upper management jobs you talked about or union jobs. For the reason you mentioned. If they can fire you the day before you get your pension then why would they bother pretending to give you a pension in the first place? They can’t do that at union shops because the union would give them trouble.
I work in the high-tech industry. Wages are pretty good, benefits are pretty good. But no one has a pension plan because no one expects to stay at the same company for 30 years, no one expects the companies to last 30 years. Depending on a pension from a company that can fire you on a whim isn’t very smart planning.
Stop spreading non-truths. Because you may work for a crappy company doesn’t mean we all do. I’m not upper management by a very, very, very large degree. I have very good retirement benefits, a pension in addition to a 401(k), medical retirement, and no absurd union contract to guarantee me any of this. I’m vested now, and it can all be taken away from from non-vested, and I can be fired prior to retirement, but it doesn’t matter; vesting is protected by federal law.
Is that so? To me, there seems a huge legal difference between:
a) Agree to this contract, and sign it to indicate your agreement, or we will discontinue your employment.
b) Sign this piece of paper right here and now, to indicate your agreement to something that you cannot possibly understand on this piece of paper, or we will discontinue your employment.
That is… isn’t there some kind of protected right to seek out legal assistance in contract matters? If taken literally, ‘sign it now or you’re fired’ could be extended to say that even taking a reasonable amount of time to read through the contract on your own is not sufficient, thus ensuring that the employee simply has to take potluck on what he’s agreeing to.
Hope I never end up working for someone who would pull stunts like that.
err… “simply has to take potluck on what he’s agreeing to, or walk away from the job,” of course. Didn’t mean to leave that part out.