Employee Drug Testing Case

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Employee state drug testing case
Supreme Court of Nevada
No.26157

Appellants, Nevada employment security department and employer challenged an order of the 8th judicial district court. Which reversed appellants department's decision to deny respondent employee's claim for unemployment benefits.

The respondent “Holmes” was employed by appellant Hotel “San Remo” as a slot hostess. Holmes was denied unemployment benefits due to work related misconduct. Holmes appealed this and the district court ended up reversing the denial of unemployment benefits because it held that substantial evidence did not support NESD's decision. This case is “San Remo” and NESD's now appeal the court.

Holmes was employed by San Remo between August 31, 1990 and February 9, 1993. She was terminated because she failed her drug test for cocaine (she was given 2 tests to rule out false-positive). In April 1992 San Remo informed all employee's that it would be initiating random drug testing programing. All employees would be given 90 days notice and their failure to pass drug test would result in their termination.

San Remo used a hair analysis test known as radio-immunoassay hair analysis (RIA) the test results for Holmes revealed that she had used cocaine during the 90 days immediately proceeding the 90 day notice. The court is determining weather the RIA test is substantial evidence, if the RIA test was an acceptable manner for drug screening. The testimony of experts and scientific journals presented by appellants conclude that this evidence satisfies the courts definition of substantial evidence.

San Remo's witness was vice president of marketing for psychomedics corporation “Psychemedics” the company developed RIA testing procedures , trained San Remo's personnel that conducted the testing of hair samples . Berka testified that a recent report concluded that Psychemedic's RIA testing was 100% accurate in avoiding false positives in a “blind...
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