Science indicates a problem – a HUGE problem – but big businesses, making big money, could not care less. Why should they when the law and the courts don’t hold them accountable? It is a system that is broken, and when the law refuses to step in, it remains that way.

There are many jobs and entire industries that require drug testing before one can enter the hallowed halls and join their workforces. These include many jobs in the federal sector, law enforcement, and private sector jobs with federal regulations. Drug tests can be conducted with urine, blood, saliva, and hair samples on a regular basis. Individuals seeking employment sign the line consenting to drug testing, trusting that the companies performing these tests will exercise care. They have no choice if they want the job.

Unfortunately, when these testing companies fail to exercise care, the cost is an employee’s livelihood. Yet, these companies are allowed to slink away under the cover of darkness. When false positive test results are verifiably incorrect, there is no accountability. The employee is left fighting for their career with no recourse for the damage the testing company has caused.

A very common method for drug testing in the workplace is hair follicle testing. Its increased popularity is due to its ability to detect substance use over a longer timeframe and its perceived resistance to manipulation. However, the fact remains that there are numerous questions about the reliability of the science behind them.

Hair follicle testing may indicate drug exposure, but the difficulty arises when attempting to determine how that exposure occurred. This ambiguity poses a critical question in the reliability of attributing drug presence to internal ingestion or external contamination.

Experts agree that certain drugs and chemicals bind to melanin, the pigment responsible for hair color. Furthermore, melanin is not the only issue with these tests. Scientists have argued that cosmetic treatments commonly used by individuals with darker hair can damage hair cuticles, thereby increasing the risk of contamination from drugs in the environment. Remarkably, higher concentrations of melanin in darker hair and chemical treatments for individuals with certain hair types raise concerns about potential racial disparities in test outcomes.

What does this mean? It means that certain demographics of people, many minorities, might be more prone to false positives due to their hair characteristics.

When employees are told about their false positive test results, they protest. Companies have the ability to provide alternative tests or retest to verify results, but there are many testing companies out there that only care about the big money they are making and have no regard for the lives they are destroying.

There are many employees that have received their false positive test results and quickly gone out to have tests conducted by other companies, in an effort to prove the prior test result was a false positive. When they have proof of negative tests, they fight to provide their negative results to testing companies and their employers. There are employees that have begged testing companies and employers for retests or to consider the results of retests they paid to have done themselves. Sadly, these protests and pleas are often ignored.

This battle has been ongoing for decades. Even now, there are numerous lawsuits filed throughout the country by people wronged by testing companies and employers that are not interested in the truth. Despite testing companies contracting with employers to provide these tests for their employees, and employees signing off on consent forms with the expectation that these companies should be trusted to produce accurate results, there are courts holding that these third-party testing companies have no duty of care to the employees. The employer has now fired the employee based on the result, and the company performing the test continues to do business as usual – leaving the employee with nothing.

It is important for employers and testing agencies to be aware of these potential biases and to consider them when interpreting the results of hair follicle tests. Individuals undergoing such tests should be treated fairly, and testing policies should be implemented in a way that minimizes the risk of discriminatory outcomes. It is our hope that the law catches up with the science and where it does not, that employers question these testing companies and fairly consider retests or alternative tests to verify the so-called positive test results.

If you have concerns about legal issues as they relate to your employment, we have attorneys available for consultation.

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Photo of Kalandra N. Wheeler Kalandra N. Wheeler

We asked Kalandra N. Wheeler, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions.  After reading, you will be more more abreast with the understanding and competency that Ms. Wheeler

We asked Kalandra N. Wheeler, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions.  After reading, you will be more more abreast with the understanding and competency that Ms. Wheeler brings.

1.Why did you start practicing labor and employment law?

I wanted to be able to help people that otherwise might not find help. Labor and employment laws affect most of society.  And – whether our results help one or many – our work and efforts as employment lawyers touch people in a real way in their every day lives.

2. Who is your favorite Supreme Court Justice?

Thurgood Marshall.

3. What do you think is the most important part of a good case?

The client. Good facts and evidence are definitely important. But good clients are a lawyers’ most valuable asset.  A good client: (1) is invested in their case; (2) works or worked hard for their employer; (3) can tell their story clearly and concisely; and (4) is someone that a jury will find sympathetic and relatable.

4. If you could write a new law, what would it do?

The Texas Workplace Anti-Bullying law.  I hear the stories, the ones told by employees looking for help. And in far too many of those stories the law offers no solution.  Every employee that goes to work and works hard to do the job they are hired to perform should be able to do so without abuse, harassment, and bullying. There is no justification for bullying, not in our schools, and not in our workplaces.

5. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

For a year before law school, I worked as a lube tech for Jiffy Lube.  I spent hot summer days, working on hot cars, changing oil or flushing transmissions or radiators.  I never had a customer come back with a complaint.

6. How do you market yourself differently than others?

I tell clients what they need to hear, not necessarily what they want to hear. Before a client begins down any path toward resolving an employment dispute, they need thoughtful, honest advice. I am a believer in justice and everyday people deserve competent representation in an arena that is difficult for non-lawyers to navigate.

7. What do you do when you’re not practicing law?

I spend time with family and friends.  I read true crime books.  I sew and draw.

8. How would you describe the color yellow to someone who could not see?

It’s not the intense heat of the sun during the month of August, but instead the softness of the sun on your skin just as the seasons change from Summer to Fall.  It’s warm. And soft to the touch.  It’s fresh squeezed lemonade with a hint of sugar.  Slightly cool, inviting, and happy.

9. What’s your favorite legal TV show?

Law & Order: SVU

10. If you could argue any case in history, what would it be?

The Karen Silkwood case. But really, I think that would be more about arguing and trying a case alongside Gerry Spence for the learning experience.

Kalandra N. Wheeler is a Trial Attorney in the Houston office of Wiley Wheeler, P.C.  She graduated from The University of Houston with a bachelor’s degree in political science.  Ms. Wheeler went on and received her law degree from The University of Arkansas.