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Drug-Test Protocol May Be Uncomfortable but It Will Still Hold Up in Court

March 11, 2001

Q I was hired by a large international company, contingent upon passing a drug-screening test and a background check.

At the clinic, I was told by the doctor to remove all my clothing, including socks and shorts. When I asked why, he responded that he was going to do a general physical and then would need to watch me leave my urine specimen to assure that I was not tampering with the sample. He said that many people hide bleach, etc., under their clothes to tamper with the sample.

I couldn't put my clothes back on until I witnessed him seal the sample and sign the necessary paperwork. After about 30 minutes of standing naked in the exam room, I was finally allowed to leave.

Is this the standard protocol for drug screens?

--W.M., Woodland Hills

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A It would appear that the amount of time you were required to stand naked was somewhat excessive.

Courts have found that companies intrude on an applicant's privacy when requiring an applicant to disclose medications he or she is taking and to provide, under surveillance, a urine sample that is used to acquire information about a person's internal physical state. However, the courts also have found that the intrusion is lessened by the fact that the drug testing is part of a pre-employment medical exam that a job applicant reasonably must anticipate.

The courts balanced the intrusion against the employer's interest in avoiding the financial burdens and morale problems caused by an employee's use of drugs or alcohol, and determined the limited intrusion caused by the drug test performed on an individual who already was undergoing a complete medical examination was justified.

Therefore, while you may have been left standing naked a little longer than necessary, you are unlikely to win a challenge to the procedure.

You may wish to write a letter to the drug-testing company or to your new employer after you are hired, explaining your level of discomfort. Perhaps steps can be taken to minimize the embarrassment for future applicants.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

On-Call Status Might Entitle Worker to Extra Pay

Q I am an hourly, union employee. Can my employer require me to be on call, stay near home, carry a cell phone and respond to emergencies on my time off?

If required to be on call, am I entitled to overtime pay since the company is restricting and controlling my time off?

--W.C., Alhambra

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A First, you need to check your union contract. Under some collective bargaining agreements, employees are entitled to additional pay when they are on call, or to premium pay or a guaranteed number of hours when they are called on to perform work on personal time.

If you cannot find the answers in the contract, call your union representative.

If your contract is silent, you still may be entitled to be paid at regular or overtime rates for your on-call time. Under California law, hours worked include periods when employees are subject to their employer's control, even if the employees are not actually working. In other words, if employees' time is so restricted that they cannot come and go as they please, their employer is considered to have direction and control of the employees and the workers are entitled to payment.

Factors that are considered in determining the extent of the employer's control include geographical restrictions on the employees' movements, required response time, the nature of the employment and the extent that the employer's policy interferes with personal activities during on-call time.

Without reviewing your union contract or knowing more about the nature of your employer's restrictions, it is not possible to tell whether you are entitled to be paid during your on-call personal time.

If your union representative cannot assist you, you should file a complaint with the California labor commissioner or consult an experienced employment attorney.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Voice Your Concerns About Forfeited Raise

Q Nine of us supervisors were told that we were being put on salary instead of our hourly pay at our business. We were given a 10% increase to compensate for any extra time put in.

A week later, the owner decided that since business is not doing well we will forfeit our 10% increase until business improves.

We have no way to vent our frustrations. The human resources department is run by a family member, which makes it quite difficult to discuss any problems.

Any suggestions on how to resolve this?

--D.K., North Hollywood

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A Despite your reservations about talking to the human resources director, it is very important that you and the other supervisors voice your concerns. The HR director seems to be the proper person to approach first.

I think it is important that you do this as a group to show solidarity--and so that no one is unfairly singled out.

Discuss both the inequity issue--being asked to work overtime without appropriate compensation--and your concerns that there needs to be better communication between upper management and the supervisors.

Even if you don't get the compensation reinstated, you might get a better sense of the reasons behind management's decisions, and you should begin to open up future lines of communication.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at http://www.latimes.com/shoptalk.

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