Wal-Mart - Fired for alcohol question?

[rebirth5450]

Hello,

I work at a Wal-Mart in Colorado, United States.

I went out last night drinking, had a lot to drink and stayed up late. I went to work the next day and was told I smelled like alcohol. I figured I wasn't drunk but it was surely possible I might still have the smell on me.

I was sent with a manager, as I am a manager there to get drug tested as I complied because I had nothing to hide.

The store manager told me if I was at a .04 or lower during this suspension from work, all the days I miss I will be paid for. If I am .04 or higher then I am terminated.

I took the breathelizer and it registered a .029, which beats her figure, and then we left. After leaving we were told it was required that we had to go get the urine and blood test, so we had to go back to the facility and be tested for the urine since they would not do the blood. I don't know the results but logically we can assume it was lower and the urine test was done 3 hours later than the breathelizer. Obviously in both cases I am under her .04 score.

Is my job safe is the question?

Is this a state law of Colorado for firing employees that they have to exceed .04, which in Colorado is the minimum for DWAI the lower offense of .08 DUI?

Or was she lying to me and can I still be fired for this?

No worries on the urine test either, I do not take drugs.

Thank you very much for answering my question,

Rebirth

 

[jacksgal]

Yes you can still be fired unless you have a cba or employment contract that says otherwise

 

[rebirth5450]

Thanks for the response whether I like the answer or not of course you're just being honest. I suppose that is true for anyone though in regards to bargaining agreements or contracts. I'm just wondering if state law or company policy protects me in this case.

I mean she openly said in front of a Co-Manager and my Assistant Manager that if I was under 0.04 I would still have my job, this would be filed in her private order but won't go into our computer database meaning others can't see that they tested me.

I've never known her to be a liar, but have felt lately that two different members of management have been trying to get me out of the job I'm in no matter what. Generally that people are gunning for me. I don't know why.

Still to the point, does state law or company policy protect me in this situation? Anyone really familiar with wal-mart or Colorado know?

 

[jacksgal]

If there is a written policy you might have an arguement. However you might be jumping the gun on this one, nothing has happened yet. Far as the law goes unless your under a union or employee contract your considered an employee "at will"

 

[rebirth5450]

If there is a written policy you might have an arguement. However you might be jumping the gun on this one, nothing has happened yet. Far as the law goes unless your under a union or employee contract your considered an employee "at will"

Sure, that's my problem I don't know what the written policy is. I wonder if I call walmart's corporate office I can find that out.

True, I'm asking presumptively to know if I should look for a new job or not instead of waiting for test results I know I'll pass.

I understand where you're coming from there, anyone can fire anyone typically just for the sake of "lack of performance" or whatever excuse they can cook up, so I'm probably wrong on them trying to run me out of the company considering I've never ever been disciplined there.

If you're in a union which I'm not, you can be let go if you're low in seniority still.

Again I'm just wondering specifically in regards to the issue of the BAC and this state, or like I said the wal-mart policy to see if they can fire me for that, and I'm betting they can't. I'm just frustrated since I'd like to work and now I have to wait like 4 days to get test results that I know the results of already.

Plus the manager that went with me talked to the store manager many times on the cell phone while we were there, and I would have been above the .04 I'm sure there would be nothing more to discuss and no point in even taking the drug test. I'm guessing now that they have me in there, they'd just like to know for sure I'm not on drugs.

 

[cbg]

I can tell you that there is no state law prohibiting the employer from firing you if your blood-alcohol level is less than .04. It may or may not be company policy; it may have been an arbitrary line that she pulled out of the air. It is NOT state law.

 

[rebirth5450]

Ok thanks, so we know it's NOT state law, but it might be company policy then, the only why I ask is because A) She brought it up. B) this:

Why is "BAC" important? For one thing, BAC levels are important because they are what law enforcement officials use to determine (based on a test or tests) whether or not you are "DUI" (driving under the influence), i.e., a "drunk" driver. For another, testing for BAC levels is done today by many employers to determine if you should be relieved from the job for a day (e.g., to sleep it off) or be immediately fired for being impaired while performing your job. Usually, the BAC levels an employer uses for those determinations are 0.020% to 0.029% (you're relieved from duty for 24 hours) and at 0.040 or higher you will be fired. Companies and other organizations that have what is termed a "zero tolerance" policy about alcohol-use or alcohol-impairment while on the job will terminate your employment if you test at a BAC level of as little as 0.001%.

So it looks like companies have there own policies and the state or fed has nothing to do with it.

 

[army judge]

Walmart, like most companies, doesn't want employees on their premises with any liquor in their blood. There is no legal controlling authority prohibiting this for a job, unless it involves public safety, ie...teacher, police officer, truck driver, etc.
But, common sense is always required.

In your case, Walmart most likely has a company policy about coming to work drunk. But, alcohol does NOT have a smell. If someone said you smelled "like alcohol", there is your way out of this. I've beaten DUI and public intox cases when officers said, "he smelled like alcohol."

Say no more to anyone about this at Walmart. If you fear for your job, speak with a local lawyer. I'd take the time and do that anyway. The initial consult is usually at no cost or low cost. And, make sure you NEVER go to work after an all night binge.

If you believe drinking adult beverages is a problem for you, seek treatment. Walmart, like many companies, offers substance abuse counseling. Good Luck!

 

[rebirth5450]

Ok so this is what happened, NEW info here.

Ok so the drug test came back from the Urine and it's a pass, meaning no drugs.

Now here is what happened I go to work today and I thought I'd get back to work and just avoid this problem in the future. I believe in life we all make mistakes, learn from them, but I'm of the type never make the same mistake twice so I'm totally determined not to let this happen again.

However they bring me into the office and said well you passed the test of the .04 so you're not at Walmarts policy for termination however because you smelled of alcohol and blew a .025 we are going to give you a D Day. Which means a Decision Day, you go home write a statement and then they decide whether to fire you or not for that.

I signed nothing on the computer, no forms, and told they wanted me to go Thursday for it, which is a day they pay you for, and then read your response and make a decision on your employment. I took it today because I wanted to get it over with. They had to pay me for 31 hours of missed work so far.

I called the District HR Manager on this subject and he actually just dealt with a similar situation last week.

My main problems are these:

1) The Store Manager in front of 3 witnesses which includes myself said that if I'm below .04 it just goes in her private folder, it doesn't go on the computer and no one will ever know about it. Which is a complete lie since giving me a D Day for this and the statement I make, therefore is in the computer system, and everyone knows about it. The District HR Manager stated that she shouldn't have said that "she should have just said, we'll get the results in a few days and then we'll go from there". Also he further stated he had no idea how she came up with the .04 number which is the DWAI limit in Colorado, because he said from the drug screening team stores only get a "pass" or a "fail", so this shouldn't be an issue, they shouldn't know what numbers you have. Even though they just started using breathelizers as well. My response to that comment was, I don't think you changed your forms yet, since it doesn't say Breath in anyway on it.

2) Ok well here is the deal on the form that I signed to agree to a Reasonable Suspicion test it says Urine and Blood, it goes on further to say specifically that a Urine and Blood sample are required.

So how the hell can they use the breathelizer result against me, when I never signed consent to it. The form specifically states Blood and Urine. So I never consented to breath and in the state of CO if pulled over for a DUI you can refuse the breathelizer and the officer HAS to take you to the ER for a blood test.

I understand that BAC or breath is very similar to blood, and similar to urine, but blood and urine are more accurate and in fact the only way to test for drugs. But the form clearly states a Blood SAMPLE. Which the definition of "sample" does not mean breath, since you cannot take a breath sample and put it in a vial.

3) The third problem is obvious, they couldn't fire me because I passed there test, at Walmart there are stages of disciplinary action, counseling which is nothing, coaching which is level 1 verbal, than coaching level 2 which is written and goes into the system, then step 3 Decision Day. So since they couldn't fire me for passing there tests, of which I got a pass from the drug screening center, it appears as if they are giving me the harshest punishment which includes the option to terminate me anyway.

At the end of the day if that's the case, what was the point of taking the test anyway?

My attendance is good, and I've never been disciplined, yet since I passed the test from the drug screening people, I'm given the harshest punishment aside from and yet still...possible termination.

Is there anything I can do, any opinions on this?

Yes I'm willing to scan the form I referred to and let everyone see it if you like.

 

[army judge]

You have four options.
1) They could terminate your employment.
2) You could resign.
3) Hope that this will pass without a PERMANENT negative result.
4) Retain an attorney, and get ready to fight what might befall you.

If it were me, I'd hire a local attorney and fight.

I forgot.
There is an obtuse way, that might help you beat this.
You could say that you are an alcoholic, and want help.
Walmart has a self report policy, as do most companies.
This might be the most embarrassing, but probably the easiest.
Take the therapy and keep your job.
Most of these programs absolve you of your sins.
Just another approach.

 

[mlane58]

You have four options.
1) They could terminate your employment.
2) You could resign.
3) Hope that this will pass without a PERMANENT negative result.
4) Retain an attorney, and get ready to fight what might befall you.

If it were me, I'd hire a local attorney and fight.

I forgot.
There is an obtuse way, that might help you beat this.
You could say that you are an alcoholic, and want help.
Walmart has a self report policy, as do most companies.
This might be the most embarrassing, but probably the easiest.
Take the therapy and keep your job.
Most of these programs absolve you of your sins.
Just another approach.

Fight what? The OP saying that they are an alcoholic now is mute and the ADA addresses this a decision by the Seventh Circuit Court of Appeals which indicates that employers can enforce their policies. In Bekker v. Humana Health Plan, Inc., 229 F.3d 662 (7th Cir. 2000), the court found that the employer did not violate the ADA when it terminated a doctor it had good reason to believe had violated its alcohol use policy. Th OP doesn't have a case what so ever and you even suggesting this route is extremely unprofessional and unethical.

 

[army judge]

Did you mean "moot"?
The OP never indicated that his ability to speak (mute as you term it), was lost!

By the way, everyone has the right to an attorney. The sixth amendment gurantees it, just as the seventh amendment affords the right to a trial. If advising others properly as to their rights is unprofessional in your view, damn right, I'm unprofessional.



Sent from my iPhone using Tapatalk

 

[mlane58]

Did you mean "moot"?
The OP never indicated that his ability to speak (mute as you term it), was lost!

By the way, everyone has the right to an attorney. The sixth amendment gurantees it, just as the seventh amendment affords the right to a trial. If advising others properly as to their rights is unprofessional in your view, damn right, I'm unprofessional.



Sent from my iPhone using Tapatalk

I never questioned The OP's right or anyone else's right to an attorney. You advising the OP to make the claim he/she is an alcoholic after the fact and fight for thier job is the issue and the. So what I misspelled moot.

 

[cbg]

For the record, the ADA prohibits an employer from firing an employee on the basis of their having a history of alcoholism for which they have sought treatment. It does not prohibit the employer from firing an employee for having alcohol in their system while at work.

And for FMLA to apply, the employee would have to actually be undergoing treatment and the employer would have the right to verify that.

 

[rebirth5450]

Thanks for all the additional responses to this. I guess I could piss & moan or just act outraged but it seems like a waste of energy.

I still have not heard back from the Director of HR, Wayne in regards to this subject, as he said it might not be until Thursday until I hear from him. I'm going to call him tomorrow morning and see if he's found anything out about this.

If I didn't mention it, he stated to me on the phone that "with Walmart we get a pass or a fail from the drug screening team, we don't get numerical results, so if you passed, you should get your D Day removed".

I appreciate the 4 options you've given me army judge, I started applying for other jobs today or sending my resume out, as well I have relatives who I can hole up with until I get another job should it go that far. The option I'm going to take is wait until I get a response from the HR Director, which includes not working until I get that response. So if tomorrow he does not have a response for me yet, I am going to call in and ask that vacation time be used due to the circumstances and I'm not coming in to work or with a written statement for the D Day until I know if I need to or not.

At the end of the day what bothers me about this is the amount of control it seems employers have over you. Granted, I'll accept accountability, fine, but someone brought up a great point to me. They said "what if you ate a bunch of garlic before coming to work, would they send you home because you reeked of garlic"? I of course don't know the answer but assume that they could, but if I'm Italian not to be stereotypical and not saying I am, and eat it daily, isn't that a form of discrimination? Then the issue arises of "do we as employees have any rights"?

Fine, I'll concede I smelt like alcohol if they say I do, but I passed there tests, so how do I pass and still get disciplined? I don't view it as the company doing what they need to do to protect there customers and a safe workplace environment. I look at it like a complete retaliation attack because they didn't get what they wanted which is just immediate termination for being "drunk" at work which I wasn't.

If you are a woman that weighs around 100 pounds and drink a 12 pack of beer on superbowl sunday it will take around 45 hours for your BAC to return to flat 0, based upon this medical chart one of the testers gave me. That's nearly 2 days, so if you don't weigh very much, don't drink.

In conclusion of my commentary, not really rant, I wonder if there was no breath test done, and they took blood and urine like the form clearly states, and it came up all 0.00, would they still be giving me a discipline because I smelled like it anyway? Again what was the point of taking the tests in the first place if they fire me anyway?

No matter what way you look at this it seems very clear of a case of "we can't fire him this way, so let's do it this way", and obviously a rational question to me would be, do I really want to work for a company that's trying an end around way to eliminate me and the answer is probably not.

Thanks and I'll post tomorrow to let everyone know what happened,

Rebirth

 

[rebirth5450]

Ok so what happened in conclusion.

Alright so first I called the HR District Manager but couldn't reach him, then tried regional, and voice mail and even the home office to see if I could talk to someone about what to do.

Since I was sure they were going to try and fire me for this in the "roundabout" way that I explained, I called my store and talked to the Shift Manager (2nd in command) that I was not coming in until I find out what to do about all this. He stated that if you don't show up the next day you are scheduled for a D Day then it is automatic termination I said well I have to do what I have to do and if it get's reversed I guess I'll get my job back. But I'm not coming in, I advised him until I hear back from the HR District Manager, who in short is like above everyone in my entire store of course.

I left an urgent voice mail for the market team and finally heard from Wayne at around 15 to 30 minutes before I had to clock in, of which I was still at home, and at that point flipping a coin as to whether to resign and have the possibility of rehire or let them fire me by not showing up.

Wayne called and advised me that he told the store directly, don't do anything until they hear back from him. He talked to the drug screening place but he wouldn't tell me the results which is odd, considering I passed. It's like, why not tell me and a question in the end here is do I not have a right to those test results as far as a copy of them?

So I basically didn't have to go in which was great, and wouldn't be fired or have anything happen until I heard from him. The Shift Manager I spoke with advised me that more "allegations arised", I was like, what? Turns out I texted one of my fellow managers and they took something I texted the wrong way and showed the texts to the management, as well the management there interviewed some of my peers and some of my employees I manage. I was pissed some more because it looked like a witch hunt and that they were investigating to try to fire me. Again, just do it then and skip the tests. What's the point?

At around 4 pm I finally got a call back from Wayne, he advised me that he talked to my Store Manager, the Legal Team, and the Drug Screening Team, and everyone has reached a resolution, a level 1 coaching which is verbal and doesn't go in the system, I go back to work tomorrow, and it's done and over with. He brought up the text message in concern and I addressed it. It sounded like a threat to people and my threat was meant legally, when I told him that he said "that's exactly what I thought", but others perceive things differently since I didn't use those exact words.

So now I went back to work today, got my verbal coaching which actually does go in the system, but doesn't prevent me from promotion or transferring, which is nice. I'm not ready to promote in my own opinion if I'm not in the right state of mind and making stupid mistakes, but I might still transfer.

I would imagine that it would be very hard to promote within this own store as the Store Manager and I now are at an impass of trust, but things can heal over time and my other Shift Manager advised me that I have to work on rebuilding relationships which can be done, and I need to apply myself and not put myself in this position again, which I have no intent of doing.

Work was fine today and I ironically have the next two days off, so basically I got paid for a week of doing nothing, but being stressed out and pissed off. I think they are going to finally lay off me now and the attitude I've received from people working there now, whom don't know what is going on and even those that do are either confusion or like they are staying away because they don't know why I was gone for a week and/or he has a second chance now leave him alone and see if he can grow or if we have to let him go if he commits the same mistake again.

I will still look for a better job because I can do more and accomplish more and this was always just a survival job for me that I wanted to give a chance to, but still if I decide to stay with this company forever or the rest of my life, I'm going to transfer to increase my chances of promotion.

I guess they could stay after me and try to find a way to fire me, but I don't believe that will happen. I also need to prove myself though, and even though I will try my best, I'm going to constantly look for a better job even in the bad economy we are in.

Thanks for all your help,

Rebirth