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Drug Screening Question... Texas

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  • Drug Screening Question... Texas

    Ok...so this question has a few parts to it and I wasn't sure where to post it, I've been in HR but I'm not sure what the "rules" are, if any, on this subject. My husband works in the oil/gas field - 14 days on hitch / 14 days home. We live in Arkansas but he works in Texas (approx. 4 hrs. away). His company has random drug screens and in the past have sent one of their Safety Coordinators to the rig to perform these tests but this time they are asking the guys to drive another hour AWAY from AR to go to a clinic to complete the drug screen. Not only are they asking them to drive, with NO additional compensation, they are also asking them to stay another night away from home (he would normally get off on Tuesday night) to go take the drug screen on Wednesday morning. I have several questions...1. Are they within their right to ask them to travel, at their own expense, to another location to complete this? 2. Should they have to pay them for staying another night or time driving to the testing site, or at least mileage? 3. They stay in a crew trailer with a limited number of beds. The next crew will be arriving Tuesday night to start work Wed morning, so there will no be a place to stay. Should the employer pay for them a hotel room since the they are the ones requiring them to stay another night to complete the drug screen or should this be at the expense of the employees? 4. If the employer is not going to bear any of the expense burden of staying another night or driving to a location that is not even remotely close & it is being required on their days off, do the employees have the right to refuse the drug screen?

    He doesn't mind taking the drug screen, that is not the issue. But these guys are already away from home for 14 days straight and most of them are ready to get home, so while I realize it's not "fair", that is not a "legal" defense. Does anyone out there know what the obligations are in this type of situation?

  • #2
    Interesting. I can give you a part of an answer, the federal statutory labor law part only. Under the federal labor law (FLSA) only, there is a minimum wage requirement for all hours worked. Hours worked is pretty tightly defined. That would include non-commute travel time out of town during normal business hours. Federal law does not require expense reimbursement but does require that hours worked be paid "free and clear" of unreimbursed business expenses under the minimum wage requirements. So under federal rules we are looking at a very nuanced answer that requires looking at everything that happened in the workweek (not the pay period) and not just this trip all by itself.

    TX is not my state. I am not expert on TX law. TX could have it's own statutory labor law, which cannot replace FLSA but which can add additional rules. Past that, all states have something called common law. Basically small claims court actions. Again TX is not my state but it is possible that an action to recover unreimbursed business expenses might work.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

    Comment


    • #3
      Originally posted by DAW View Post
      That would include non-commute travel time out of town during normal business hours. Federal law does not require expense reimbursement but does require that hours worked be paid "free and clear" of unreimbursed business expenses under the minimum wage requirements. So under federal rules we are looking at a very nuanced answer that requires looking at everything that happened in the workweek (not the pay period) and not just this trip all by itself.
      This is part of the problem...their "work week" is very confusing, since they work 14 days straight (12.5 hr days), then home for 14 days. We already had discussions with them when they sent him to training 6 hrs. Away and refused to pay for airfare, mileage OR drive time...because it was "voluntary". But since they are REQUIRING them to take this drug screen, shouldn't they have to pay them for the time it takes to get there & back to original location? What about lodging? Since they provide lodging while there (since most travel over 4 hrs to location), if they are REQUIRING them to stay to take drug screen, shouldn't they have to provide lodging or do the rules change since it's now their "days off"? This is SO confusing to me and I am at a loss...it seems the company should, out of good-will, do these things but I know better & just wonder if all the employees say NO, do they have a reason to terminate?

      Comment


      • #4
        Workweek is a federal law requirement. It is always a 168 hour period of time (24x7) unrelated to pay periods, shifts, and schedules. There is a 100% chance that the employer has one because federal law (FLSA) says that they must have one.

        Now past that, you are not going to find some nice clean federal law answer. Federal law defines hours worked. I cannot say with certainty that the feds will consider the non-commute out of trip for this testing to be hours worked, but I can say with certainty that the employer is not the final word on this and an argument that this is hours worked under FLSA is a very possible argument. If the feds do agree that this trip is hours worked, then it falls under the 29 CFR 785.39 regulation which basically says that only hours traveled during the normal business hours count as hours worked. There is no federal rule that business expenses must be reimbursed but that under the "free and clear" rule that unreimbursed business expenses cannot impact MW or OT obligations.

        Federal law says what it says. I understand that you are using phrases like REQUIRING and that you think that federal law should say whatever you want it to say but it does not.

        Employers do not need an actual reason to terminate under Employment At Will. They just need the absence of an illegal reason.

        I am not expert in TX statutory or common law, and this is as far as I can take you.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          Texas Law

          I can give an idea of Texas law in this case--but not a definitive answer. I agree with DAW that the time driving to the proposed test site (and maybe the time undergoing a test) is probably compensable as work time. Texas law requires that employees be compensated for all time worked at the agreed on wage rate. If your husband is hourly, that's not too hard to compute.

          As to expenses, there is no law in Texas that requires employers to assume any business related expenses incurred by employees. In your post you use the word should a lot. Maybe the employer should do a lot of things, but they don't have to, under the law. If there is a CBA involved, it may require something from the employer. The law does not.

          If the employee is faced with a task so onerous that they just can't (or won't) do it, they are free to refuse, or to terminate the employment relationship. The employer is also free to terminate said employee.

          Comment


          • #6
            I get what your saying & that was my thoughts, however, I wasn't sure with this really being a little unrealistic, if the guys had any options to recoup any lost time or expenses. The reason I use "required" is because they refused to pay drive time to a training class by saying that is was "voluntary", even thhough not attending would have meant termination, not be because I am trying to get the law to say something it doesn't. I simply didn't know if there were exceptions to the law when it comes to required "random" drug testing, which seems like should be done WHILE at work. But what I'm hearing is that regardless of the "unrealistic" expectations, like additional expense of a hotel room, the employer can pretty much require anything on their days off and the employee's only option is to quit or pay. Oh! One more thing, just out of curiosity...they test for drugs and alcohol...since testing is done on their days off, could they really use a positive alcohol result as a reason for termination? They have a rule for drinking on the job, of course, but shouldn't that be waived for alcohol, since they are requiring the test be done on their days off? Keep in mind that this is not the typical 40hr. Week with "weekends" off job. They are on-site for 14 days & home for 14 days. Thanks you for your input...it truly is appreciated. I'm not trying to "screw" the employer, just seems like they are cutting a lot of corners lately that benefit them, without any consideration for the employees time or additional expenses & wanted to know if they have any rights.

            Comment


            • #7
              Originally posted by RoughneckWife View Post
              Oh! One more thing, just out of curiosity...they test for drugs and alcohol...since testing is done on their days off, could they really use a positive alcohol result as a reason for termination? They have a rule for drinking on the job, of course, but shouldn't that be waived for alcohol, since they are requiring the test be done on their days off?
              All terminations are legal unless there is a specific law that says it is not. People who drink off duty (or on duty) are not a legally protected class, so yes such a termination would be legal.
              http://en.wikipedia.org/wiki/At-will_employment
              Last edited by DAW; 09-07-2012, 10:54 AM.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment


              • #8
                If I understand you correctly, you live 4 hours from his usual work location and he opts to make the 4 hour commute every two weeks rather than move closer to the job. If that is the case, I can see why the employer would not pay for a hotel or time spent driving to the testing facility. It sounds like you are encuring these expenses because you choose to live so far away fron the job and not because of any requirement of the employer. The time spent getting tested may be work hours but I can't see paying for the commute time as that is a function of where you live as is the hotel expense to avoid a long drive in the morning.
                I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                Comment


                • #9
                  Maybe it should...

                  Originally posted by RoughneckWife View Post
                  They have a rule for drinking on the job, of course, but shouldn't that be waived for alcohol, since they are requiring the test be done on their days off?
                  Again, a lot of things should be. Some are. Most aren't. Some are legally required. Most aren't.

                  Comment


                  • #10
                    I suspect that the employee when working 14 day shifts is staying overnight at the employer's facilities and does not actually have an eight hour daily round trip commute. This is a fairly common practice in the oil/gas industry. I suspect that the normal work site is an off shore platform and that the normal commute location is a collection point where the workers are transported to the job site. I am in agreement that a normal long daily commute is an argument that the employer can try but I do not think that the argument by itself is a show stopper. For the hours worked portion of the argument, the employee will argue 29 CFR 785.39 and the employer will have to argue why that regulation is not applicable. I think that the employer will need actual case or adminstrative history to support their argument, but I do not know as a fact that such history does not exist. This sounds like something where a history prior supporting decisons exsits, but I am not prepared to research it. So 785.39 is my best suggestion for the OP since it is an actual regulation and the employer will need to find an actual cite saying the regulation is not applicable in this situation.

                    Unreimbursed business expenses are always an iffy argument under federal law, since the feds mostly do not care. The only real exception is the "free and clear" argument specific to MW/OT requirements and the last point that the trip to the clinic is no worse then the normal commute may or may not have legs here. The regulations just are not that specific, so again we are talking free and clear case and admistrative decisons. Assuming that the judge/ALJ has any interest in any thing this techncail and does not just shoot from the hip. There is apparently (per Texas 709) no TX statutory law here, so the only other possible solution is common law through small claims court. No sure thing.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment


                    • #11
                      Well said Elle, I see your point...however, oil & gas jobs move all over the United States, and could do so in as little as 3 months, so relocating for most people is simply not financially feasible. Most all employees in this industry commute, but I do see your point with accommodations...not their problem that he lives so far away. I guess we should just be thankful that they have notified them of the "random" drug testing so far in advance!!

                      Comment


                      • #12
                        Originally posted by DAW View Post
                        Interesting. I can give you a part of an answer, the federal statutory labor law part only. Under the federal labor law (FLSA) only, there is a minimum wage requirement for all hours worked. Hours worked is pretty tightly defined. That would include non-commute travel time out of town during normal business hours. Federal law does not require expense reimbursement but does require that hours worked be paid "free and clear" of unreimbursed business expenses under the minimum wage requirements. So under federal rules we are looking at a very nuanced answer that requires looking at everything that happened in the workweek (not the pay period) and not just this trip all by itself.

                        TX is not my state. I am not expert on TX law. TX could have it's own statutory labor law, which cannot replace FLSA but which can add additional rules. Past that, all states have something called common law. Basically small claims court actions. Again TX is not my state but it is possible that an action to recover unreimbursed business expenses might work.
                        I hate to get technical, but that should be all states except Louisiana. Louisiana is a civil law state, not a common law one.

                        Comment


                        • #13
                          Fair point. Commoh law implies deriviation from the old English Common Law while Louisiana civil law is derived from Roman Corpus Juris Civilis amd the influnced by the French Napoleonic Code.
                          Last edited by DAW; 09-07-2012, 12:20 PM.
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

                          Comment

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