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  • Corporate buyout New York

    I have a question about the procedures involved with a corporate takeover.

    As a condition of my eligibility for hiring with the incoming company, I was required to submit to a drug test which I failed. I do not agree with the results of the test due to a great amount of second-hand smoke exposure and the fact that I do not personally use.

    I brought my concerns to my current manager and HR with the company I work for and instead of receiving assistance, I was promptly carted off for a drug test on behalf of my current company. I passed this test. I have since returned to work after my paid suspension.

    So....my questions are:
    1) Is there any way to go about challenging the 1st test? I DO NOT use the drug in question but my roomate is a chronic user. My performance is outstanding and I am a 6 year veteran with the company.

    2) Worst case scenario being the new company does not hire me because of the failed drug test, will I be eligible for NYS unemployment insurance and the severance package offered by my current company? I did pass their drug test and am still employed by them.

    Thanks in advance for any assistance.

  • #2
    Whether or not you can challenge the first test is entirely up to company policy. Neither NY state nor Federal laws address the situation.

    Same answer as to severance. Severance is not required by law under either Federal or NY law; it's entirely a matter of company policy who does and who does not receive it.

    As for unemployment, no one here can ever say with absolute certainty who will and will not qualify for unemployment.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      I have actually been involved in matters where employees or ex-employees have argued "passive inhalation" as a reason for a positive drug test. It is a nearly impossible argument to make the research suggests that it is nearly impossible to test positive if subjected only to passive inhalation.

      Therefore, I would be shocked if the employer would entertain such an appeal, but even if it did I would be more shocked if the argument succeeded. Does the policy permit appeals?

      If you have received punishment and have since returned to work, then IMHO the new employer could not successfully argue you should be ineligible for unemployment because you have already received discipline for that act. It would violate the concept of "double jeopardy." Of course, none of this means that the new employer could not lawfully terminate you on the basis of the failed test.

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