Judge declines to dismiss workplace drug testing lawsuit

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In Brief

• Judge John R. Tunheim denies motion to dismiss.
• Plaintiff Jason Kubat alleges wrongful termination by Pomp’s Tire.
• Claims involve Minnesota Drug and Alcohol Testing in the Workplace Act.
• Court finds insufficient facts for federal preemption under 49 C.F.R. Part 382.

A man working for one employer was discharged when he failed a drug test when seeking employment with a secondary employer. A federal judge has determined that the first employer must face the federal lawsuit brought by its former employee.

Jason Kubat worked sales for Pomp’s Tire Service. In this role, he was required to operate a pickup truck. Kubat held a commercial driver’s license, but he did not need one to drive the Pomp’s truck because it did not meet the definition of a commercial vehicle, which would have triggered mandatory drug testing.

Kubat sought work with a secondary employer, which required a drug test. When Kubat failed the drug test, he voluntarily informed Pomp’s of the failed test. Subsequently, Pomp’s fired Kubat.

Kubat sued Pomp’s, claiming that Pomp’s did not comply with Minnesota’s Drug and Alcohol Testing in the Workplace Act. This law regulates when employers can test workers and applicants for drug or alcohol use. An employer cannot fire, discipline, discriminate against, or require rehabilitation for an employee based on an unconfirmed positive drug or alcohol test. And, for a first confirmed positive test, the employer must first offer the employee an opportunity to participate in counseling or rehabilitation before taking action.

Kubat filed three claims against Pomp’s Tire under the Minnesota Drug and Alcohol Testing in the Workplace Act. He argued that the company fired him without allowing a confirmatory retest. He also claimed that Pomp’s Tire denied him the chance to seek rehabilitative counseling before termination. In another claim, Kubat said the company retaliated against him after he asserted his rights under the Drug Testing Act. He contended the company violated protections guaranteed by Minnesota law. Kubat also argued that Pomp’s Tire ignored proper drug-testing procedures in previous testing during Kubat’s employment. Minnesota law requires employers to follow these procedures. He raised concerns about both his current test and previous drug tests.

Originally, the case was filed in state court. However, Pomp’s removed to federal court and then moved to dismiss.

Pomp’s argued that Kubat did not qualify for protections under the state’s drug-testing act because another entity administered the failed drug test. Pomp’s claimed it could terminate Kubat without offering a confirmatory retest or rehabilitation opportunity.

However, U.S. District Judge John R. Tunheim found that the statute does not clearly limit employee protections only to tests requested by the terminating employer. Additionally, the law does not specifically state that the employer conducting the termination must have ordered the original test. With no controlling authority on this issue, the court found Kubat’s interpretation plausible and denied Pomp’s Tire’s motion to dismiss.

Pomp’s Tire also argued that federal regulations preempted the state law and relieved the company from following that law when it discharged Kubat. The company relied on cases holding that employers who comply with mandatory federal testing requirements under 49 C.F.R. Part 382 are exempt from the Minnesota statute.

However, the court found that Kubat’s complaint did not contain enough facts to determine whether federal law actually applied in this case. Specifically, the complaint lacked details about whether Kubat worked in a safety-sensitive position while employed by Pomp’s Tire. The court also noted that the record did not provide enough information about the revocation of Kubat’s commercial license.

Without those facts, the court could not conclude that federal regulations displaced the company’s obligations under Minnesota law. Because Kubat presented a plausible claim under the Drug Testing Act, the court denied Pomp’s Tire’s motion to dismiss Count 1 of the complaint.

It also found Kubat’s claim of retaliation in violation of the state’s drug-testing act sufficient. The statute prohibits employers from discharging employees for exercising those rights, but Pomp’s Tire argued that Kubat did not properly allege he asserted them. The court found Kubat’s complaint sufficient because he claimed he requested counseling or rehabilitation before being terminated.

Kubat also alleged that Pomp’s Tire failed to follow required procedures under the statute concerning drug testing. The statute requires employers to have a written drug-testing policy that explains who can be tested, when testing may occur, and the consequences of refusing a test. It also requires employers to inform employees of their right to refuse testing and to provide written notice of all drug or alcohol test results. Kubat alleges that Pomp’s Tire failed to include required information in its written policy and did not provide written notice of prior test results.

Although Tunheim noted that the claim may not ultimately remain tied to the same case as the other counts it found the allegations sufficient at the motion-to-dismiss stage.