New York Court Says Con-Way May Be Sued Over Drug Test
A United States District Court judge in New York has held that a driver may proceed to trial on his defamation claim against Con-Way. In Liverpool v. Con-Way, Inc., et al., Case No. 08-CV-4076 (EDNY Nov. 18, 2010) a driver, Machel Liverpool, claimed that Con-Way defamed him by noting on his report with HireRight that he had refused a random controlled substance test.
Liverpool alleged that on January 8, 2007, he was told by his supervisors to report for a random drug test at about 7:50 a.m. He stated in a declaration filed with the Court that he did not believe the testing site opened until 9:00 or 9:30 a.m.. He arrived at the testing site at 10:00 or 10:30 a.m. and was administered a drug test. About 8 or 9 days later he was fired, and thereafter filed for unemployment compensation. Con-Way told the New York Department of Labor that it fired Liverpool for "excessive absenteeism." Liverpool ultimately received unemployment benefits.
Liverpool alleged in his declaration filed with the Court that Con-Way informed J. B. Hunt, Bavarian Motor Transport, and United Staffing that Liverpool had failed or refused a drug test. Liverpool was hired by Central Transport but was later filed when Central Transport discovered that Con-Way had reported to HireRight that Liverpool had refused a drug test on January 8, 2007.
Con-Way sought to have the suit dismissed before trial on several bases. One of the grounds for dismissal Con-Way argued was that Liverpool could not prove a claim for defamation under New York Law. The Court found that there was a genuine issue for trial on this point, stating as follows:
Con-Way also argued that Liverpool's claim should be dismissed because it had a qualified privilege as a former employer to provide information to prospective employers under DOT regulations. The Court noted that a qualified privilege is dissolved if the former employer acted with malice, spite or ill will. The Court found that this issue was for the jury, stating as follows:I reject Con-Way's contention that there is no genuine issue of material fact as to whether the statements it published regarding Liverpool's refusal of a drug test were false. Con-Way cannot establish that its statements were true merely by pointing to DOT regulations defining a refusal as a failure to appear for a drug test "within a reasonable time, as determined by the employer consistent with applicable DOT agency regulations, after being direct to do so by the employer" 49 C.F.R. § 40.191(a)(1). Given that Con-Way did not accuse Liverpool of a DOT violations in the documentation regarding his termination, it cannot be said as a matter of law that Con-Way actually believed Liverpool to have refused a drug test.
Con-Way also argued that its statement were privileged because of releases that Liverpool signed authorizing release of drug test information to J. B. Hunt and others. The Court rejected this argument stating as follows:I have no difficulty concluding that a rational juror could find either malice standard met in this case. There are several facts that would support such findings: the contentiousness surrounding Liverpool's application for unemployment benefits; the timing of Con-Way's report that Liverpool had "refused" a drug test, which began only after Liverpool had instituted the benefits proceedings implicating Con-Way; Con-Way's failure to refer to a DOT violation in Liverpool's termination documentation, its standard email to management regarding his termination, or its submission in the benefits proceedings; and the self-contradictory nature of Con-Way's records of Liverpool's having refused a drug test. Accordingly, I find that there is a genuine issue of material fact as to whether Con-Way acted solely out of spite or ill will in making its statements about Liverpool having refused a drug test,..., or alternatively, whether it made those statements knowing they were false or with a high degree of awareness of their probable falsity.
Con-Way also argued that its statements to Liverpool's prospective employers were privileged because federal law required to maintain drug and alcohol use prevention records and they were required to report such records to prospective employers. The Court noted that "as Con-Way acknowledges, these federal regulations deny employers protection against defamation actions when they 'knowingly furnish false information.'" [Court cited to 49 C.F.R. § 391.23(l)(2). In rejecting this privileged argument, the Court stated as follows:Con-Way's invocation of these authorization provisions is to no avail, as they do not authorize the release of false information. In other words, Liverpool did not give up his right to sue his former employer in the event that it lied to a prospective employer about his drug and alcohol testing history.
This is a good development for drivers. It does not mean that the driver won. It merely means that the driver (in New York) may proceed to trial on the issue of whether or not he was defamed when Con-Way told prospective employers that he had refused a drug test.As a result, Con-Way's argument regarding the regulations fails for the same reason its "authorizations" argument failed: if Con-Way knew Liverpool had not committed a drug test refusal, but still reported to prospective employers that he had, it would not be insulated from defamation liability under the DOT regulations.
Mr. Liverpool was represented by Attorney Deborah Karpatkin of New York. I thank her for informing me of this very significant court decision.
If anyone would like me to send a copy of the Court's decision to them via email, please let me know via email at the email address posted below.
Paul O. Taylor
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
paul.taylor@truckersjusticecenter.com
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NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP
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Originally Posted by Windwalker
