QUESTION

If a part time employee was told he was not required a drug test but is forced at random despite of what he was told, is that a form of entrapment? Is

Asked on Aug 03rd, 2011 on Labor and Employment - West Virginia
More details to this question:
A part time employee who never signed an employment agreement or even filled out a formal application, was asked on the spot at work to drug test. It was conveyed at the beginning of employment that only full time employees could be drug tested because part time doesn''t receive benefits. A new boss however was put in office a month ago and without informing of any policy change he decides to make this part time employee the FIRST on the list to test. When the employee explained he was told he would never be tested and wouldn''t take the test, the boss marked it as refusal to test. Later he sent a police officer to the employees residence to serve a paper stating he was on ''administrative leave''. There was no altercation or arguement... employee was compliant and left when asked to. Director of Public Works dept banned this employee from City property for refusing a drug test he wasn''t supposed to get in the first place.
Report Abuse

1 ANSWER

Alternative Dispute Resolution Attorney serving Charleston, WV at Robinson & McElwee PLLC
Update Your Profile
In West Virginia, drug testing falls into several categories; "post-offer" testing (used to be called "preemployment" testing), random testing for people whose jobs are "safety sensitive", and "for cause" testing.  If an employer is going to test employees, it is important to have a policy which prohibits the possession, use, sale, etc. of drugs at work, and also tells employees that they will be tested.  Whether an employee can be tested depends on what the policy says and not on whether the employee is part time.    If the policy (or an employee handbook covering part time workers) requires all employees in the same category ("safety sensitive" for instance) to be tested, then all employees in that category could be tested, including part-time employees, even if a supervisor or other company representatives has told them otherwise.  The oral statements by a supervisor usually can't alter the terms and application of the policy. The West Virginia Supreme Court of Appeals held in Twigg v. Hercules Power Company, that drug testing invades an employee's right of privacy, but later cases such as Baughman v. Wal-Mart have allowed testing in a variety of circumstances. The law is pretty complex in this area.  If you believe your right of privacy has been improperly invaded you should check with your attorney for specific advice and guidance.
Answered on Aug 15th, 2011 at 1:19 PM

Report Abuse

Ask a Lawyer

Consumers can use this platform to pose legal questions to real lawyers and receive free insights.

Participating legal professionals get the opportunity to speak directly with people who may need their services, as well as enhance their standing in the Lawyers.com community.

0 out of 150 characters