Human Resources News & Insights

Worker fired for drinking is reinstated because of printer malfunction

You’ve probably had to repeat this HR mantra to managers and supervisors many times: Document, document, document. Here’s yet another example of what can go wrong when documentation is missing.

A hearing officer has ruled that a city of Denver employee should get to keep his job after failing a Breathalyzer test because the printer hooked to the machine failed to produce a printed record of the test.

John Delgado is an equipment-operator specialist — certainly a safety-sensitive job.

On July 27, 2007, Delgado failed a random drug test given to such employees and tested positive for cocaine, according to The Denver Post.

By agreeing to abstain from alcohol and illegal drugs for three years and seeking treatment, he was able to keep his job.

On Sept. 18, 2008, while operating a road patcher, a follow-up alcohol test showed he had a 0.06% blood-alcohol content.

But, the hearing officer ruled Delgado should get to keep his job because the printer attached to the Breathalyzer malfunctioned and no printout of the test was available.

The state requires a printout of results. Since the city didn’t have one, it failed to prove a violation, according to the hearing officer.

Delgado didn’t dispute the Breathalyzer test results. Despite that, the ruling said he should be reinstated and have any pay or benefits that had been withheld from him restored.

The City of Denver plans to appeal the ruling.

As for the malfunctioning printer: It’s been fixed and a backup system has been installed.

Should Delgado get to keep his job? Let us know what you think in the Comments Box below.

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Comments

  1. That. Is. Insane.

  2. I wonder, did he simply not dispute the results (i.e. say nothing) or did he admit to drinking? If he admitted it, then the termination should DEFINITELY stand – with or without paper back-up.

    Shame on the testing officer for not taking the time to add paper or toner (whatever was needed) or at least get a witness to visually confirm the results at the time of the test!

  3. If the employee admitted drinking and the test results showed alcohol present then I would think the termination was legal with or without a printout. Given that the individual was also on probation for a previous violation it shouldn’t be a questionable termination in my opinion.

    I also agree with JVN that the testing officer should be looked at for his lapse in judgement and in following procedures.

  4. Ok did his abstinence include his off duty time? Could that be legal? Secondly, if he tested positive on duty and admitted it then I would think a ‘confession’ if not coerced would stand. On the other hand if the statue was not lived up to and the testing officer knew there was an equipment failure then I think the employee should enjoy the second chance he just got.

    The lesson is we need to perform our sensitive task well. If we don’t we don’t get to go back and alter the rules because we are the one’s that messed up and do not like the outcome. The arbiter is right but I would monitor this employee a little closer.

  5. John,

    If Delgado entered rehab and signed an agreement to abstain, it probably included his time off as well as work time. Yes, it’s legal to drink if you are of age, but if you’ve been found to be drinking on the job, and agree to enter rehab, abstaining from all alcohol use could be a legal provision of that agreement.

    I agree, though, the main lesson here is to do things right the first time – not argue for an exception once we’ve messed things up…

  6. JVN

    That makes sense. Thanks.

  7. Gary Moor says:

    What about the safety of the public and his co-workers? You now have an operator of heavy equipment that has been caught operating under the influence twice. When he injures or kills someone, some lawyer is going to have a field day suing his employer. Enough is enough. He did not dispute the findings. Shame on the person responsible for the printout but I hope my family is not his next victim.

  8. That is one of the most ridiculous things I have ever heard of. Isn’t there an electrical way of storing data in case of no paper? Come on – there must be a back up. I don’t agree with the reinstatement of employment at all.

  9. Paul Burke says:

    I agree with Gary, the company owes its’ employees a safe working environment, an environment free of employee’s working under the influence of any legal or non-legal medications or alcoholic. I would say if he cannot be legally fired send him through another “rehab” via the EAP…watch closely and test as often as the policy permits. Even consider an alternative position with less exposure to safety issues.

  10. I can’t believe this. The breathalyzer only measures alcohol. Cocaine would have been measured in a lab test – are there no results for that? The article says he failed for cocaine.
    Also, note this is another government screw-up.

  11. I understand the feelings of the last two comments. I would very respectfully point out a couple of things. What if questions can abound in any situation. The fact is he did not injury anyone so the ruling of an arbitrator cannot be based on what if, even if those “what ifs” may have really bad consequences. There are limits.

    The other thing I would point out is that we can’t change things based on rather or not we personally think it was right or not when there is a system in play that makes those rules. What we can do is work to change the system. Does that mean some will fall between the cracks? Yes for no system is perfect.

    Personally I believe this employee was handed a get out of jail free card. That is ashame. On the other hand we want to hold our employees accountable and rightly so. We as employers however, must be just as accountable if not more so and we cannot saddle our mistakes on the employee even if the employee is not deserving of the break. We live and die as the saying goes by rules. Those rules must stand even when they work against us on the rare occasion.

    The real problem was not the infraction. That certainly was A problem and could have been handled correctly. That was one thing. What became the real problem that was subject to a ruling was the mistake made by whoever handled this. That changed things as unfortunate as that may be.

    So it comes to this, which lawsuit would be better to fight. A wrongful dismissal? The “what if” when or if something happens? That is a question left for us as individuals to answer. I know this is a situation that enflames our deepest senses. It point to the importance of us as HR people to make sure we have all of our “I’s” dotted and “T’s” crossed.

  12. Disregard my earlier post. I agree with John that he gets a “get out of jail” card. Protocols weren’t followed – so Delgado is lucky this time. The case might not stand up to legal challenge since their requirements call for a printout.

    But the fact remains that it’s another government screw-up. If the tester noticed no printout, he should have reloaded the machine or ordered another machine test.

  13. Jackie T - SPHR says:

    LEU – You might want to read the article again…the cocaine test was July 07 and the alcohol test was Sept of the next year. Two different occasions.

    Gary Moor, you are right on! Just hope it is not my family out there “next time” (and there is always a next time). Sometimes you just have to do the right thing.

  14. Gary Moor says:

    John: No emotions involved in my comments. An employer has a responsibility for the saftey of the people who work there. Allowing a person who has been caught operating heavy equipment twice to continue to operate that equipment is simply irresponsible. I personally would not want to explain to the surviving spouse why we allowed someone kill their loved one when we knew there was a safety issue. Put the offender on another job but do not allow this person to injure or kill someone.

    The decision in this case, as any case, should not be determined by the actual results of driving while impaired but simply the fact that the driver was impaired. There is no what if.

  15. Gary

    I understand. And I also would not put the employee back in a driver’s seat. I think what you suggest would be the next safest and smartest thing to do.

    Just to give a little background on me and “what if’s”. I am a long term emergency service provider. I have been a police officer, medical technician, firefighter, tactical fire suppression officer and now the HR guy of a fire department. Many things have happened in my past that could have prevented forward movement based on the potential of “what if”. Then there were the situations that had me question “what if” for many years. I have had to explain to a surviving spouse a loved ones death while being questioned about what if this or that were different. I tell you what, I agree that is not a place you or I want to be.

    I am not suggesting to anyone on this board that may have to face such a tough decision as this case presents that it would be unwise to consider a potential. Just that the potential must be handled in accord with policy and law. You did that and I appreciate what you and the others have said.

  16. Folks, at the end of the day right makes might. Whether or not there was a technicality issue with the receipt, the person has twice been at work under the influence of alcohol or drugs. This is unacceptable! This is a fight I would fight. I would fight it for the taxpayers who are paying this person a full salary and benefits when he doesn’t even deserve the privelege of having said job and I would also fight the fight for the culture of the organization. A strong message needs to be sent that anyone who comes to work under the influence of drugs or alcohol will not have a place in that organization. The taxpayers desreve better. His coworkers deserve better. His employer deserves better. This tiger is obviously not going to change his stripes. Give the job to someone who is excited to have the opportunity and who takes service to their community more seriously.

  17. Brenda – I agree with you on principle, however, you’re talking about government here, and it is so difficult to fire someone WITH the goods, let alone the missing required printout. As long as our elected officials permit these specious regulations and technicalities to exist – the problems will continue. Just like the recent case about the guy in NY working for several years doing nothing

    It’s government – and we read about these situations all the time. Although the private sector isn’t immune to these – one rarely reads about them.

  18. Public or private employer, with or without a printout, the depositions from breathalzyer operator, anyone who witnessed him “not dispute it”, and anyone else involved provides adequate testimony. Violation of Drug Free Work Place is grounds for discipline up to and including discharge in any workplace. Further: OSH Act Section 5(a)(1) states “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physcial harm to employees.” Reporting to work twice with prohibited substances in his system is a recognized hazard.
    Quit living in fear of lawsuits. Fight when you’re right. If you don’t, don’t complain when everyone knows to get their way by exploiting your fear. Fire his ass, force HIM to make the choice to take it to court, let the court system drag it on for months, years while he is out of work and no income, appeal an unacceptable decision, report the absurdity of his position to a sympathetic or deadline hungry reporter.

  19. What should have been done was to have the employee escorted to a medical facility that is able to screen for drugs/alcohol after the field equipment showed that he was not in compliance. The results of the lab would have been enough documentation to enforce the termination

  20. Jay, buddy, it’s your world. We’re all just livin in it.

    Kudos!

  21. Gary Moor says:

    Thanks Jay. You are absolutely correct. Do what is right and let the chips fall where they may.

  22. to “LEU disregard my earlier post”

    Maybe someone should have tested the tester?