United States: No Private Right of Action in Florida’s Drug-Free Workplace Program Statute

The Eleventh Circuit Court of Appeals recently held that a Florida job applicant, who was required to take a drug test, but then offered no actual position, may not maintain a civil action against the prospective employer under Florida’s Drug-Free Workplace Program Statute [§ 440.102, Fla. Stat.], since the statute does not provide an aggrieved applicant with a private right of action. The plaintiff, a black male, proceeding pro se, contended in relevant part that the defendant, a job placement agency, had discriminated against him by not offering him an employment position after he twice submitted to (and passed) drug testing. The Court said the “penalty" for the employer's failure to abide by the statute was its loss of the discount in workers' compensation premiums that it could enjoy with full compliance. There was no private right of action to aggrieved applicants.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See McCullough v. Nesco Res. LLC, 2019 U.S. App. LEXIS 411 (11th Cir. Jan. 7, 2019)

See generally Larson’s Workers’ Compensation Law, § 36.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see