Many employers require drug tests for their employees. What happens when the drug testing laboratory commits an error regarding the test? Failing a drug test can result in termination. That is what happened in Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017). The employer had a random drug testing program. Exxon Mobil employed third party laboratories to administer the test. The employee tested positive for illegal substances. Gilberto Rincones said he saw DISA, Inc. follow poor procedures in gathering the urine samples. He claims they made a mistake. DISA offered him the opportunity to re-test. He did not satisfy the requirements for a re-test. But, he took a test on his own through another source and tested negative for drugs. He did not complete the rehabilitation program offered by Exxon and was placed on inactive status. He later filed suit against Exxon and against DISA.

On appeal, the Texas Supreme Court found Exxon was not liable for the actions of DISA. The lab was not the agent of the employer, said the court. It had no contract with the lab. And, its requirements of the lab did not amount to control of the lab. The plaintiff sued the employer for discrimination, arguing that three non-Hispanic employees were allowed to continue working for Exxon even after testing positive for drugs. But, the court found those three employees were not good comparisons to Mr. Rincones, because they were management.

The plaintiff sued DISA for tortious interference with his employment and for negligence. But, the court looked at the date his lawsuit against the lab was due. The court found that Mr. Rincones’ right to file suit accrued when he first learned of the false positive result, not when Exxon placed him on active status. He learned about the false positive on April 14, 2008. He was placed on inactive stays in August, 2008. He then filed suit in August, 2010. So, he was too late by a few months, said the court.

The plaintiff also alleged defamation against Exxon. He claimed that because his employer terminated him for a false reason, he would be forced to provide that false reason to future employers. That sort of defamation is known as “self-publication.” The employee is forced to self-publish the defamatory statement. The Texas Supreme Court recognized that many Texas courts of appeals have accepted compelled self-publication in the past. Nevertheless, the Supreme Court refused to agree. The court made the remarkable claim that if it recognized self-publication, then that recognition would encourage employees to worsen the harm done them by the employer. That is, allowing the doctrine of self-publication would prevent the employee from mitigating his damages. The court is basically saying the employee might not look for work if he had to mention something damaging about himself. Such a notion is simply silly. Few, if any employees, have the option of not looking for work after termination. The Texas Supreme Court has continued its antipathy to plaintiffs. It also betrays a lack of connection to average workers who live from paycheck to paycheck. See the opinion here.

  • Robert Schoening

    Interesting case but Mr. Rincones had no case. He was unable to prove that DISA had poor procedures. My experience with DISA as I had done an audit on them found that they follow the procedures outlined in 49 CFR 40 consistently for DOT regulated employees and for non-DOT employees subject to testing. I will further add that Exxon-Mobil is very stringent that the regulations be followed since the Exxon Valdez incident. I will add that I was the program manager for the USCG for over 11 years and have considerable experience in this field over the past 30 years.