The Kentucky Labor Cabinet recently contacted the American Staffing Association about the prospect that staffing firms in that state had charged candidates for drug testing in violation of state law. In a letter to the ASA’s counsel, the general counsel of the cabinet discussed allegations that as many as five staffing agencies in the state had done just that.
According to the letter, staffing clients have traditionally borne the cost of drug testing, but now many such companies have passed the cost of testing along to staffing firms, who have in turn passed the cost along to candidates. In doing so, they violated a Kentucky statute.
The statute, KRS 360.220, reads: “It shall be unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any records required by the employer as a condition of employment.”
The penalties for charging for drug testing range from $100 to 1,000 per candidate, which can add up for high-volume, high-turnover clients. The letter states that “the three cases settled by [the general counsel’s] office could have resulted in over $1 million in penalties.”
If you own a staffing agency, have a branch or do business with staffing agencies in Kentucky, make sure that either you or your clients are paying for drug testing. (Ideally, your clients.)
However, if you find that some candidates have been charged for drug testing, you have a chance to make good. The general counsel’s office has offered a “safe harbor” for firms that report their own violations. The statute of limitations will be lowered from five years to one, and all penalties will be waived, as long as the general counsel’s office is notified, and the firm in question works to make the candidates who have been charged whole.
If you discover that your firm has charged candidates, contact Kentucky Labor Cabinet Commissioner Mike Dixon immediately at (502) 564-0977.