ACT NOW: Your Evidence Has an Expiration Date
If you’ve been fired after a drug test in California, the clock is ticking on your ability to build a strong wrongful termination case. While you have three years to file a complaint with the California Civil Rights Department (CRD), your most critical evidence the actual drug test results may disappear long before that deadline arrives.
Drug testing laboratories retain positive specimens for only one year under federal Department of Transportation regulations, and many non-DOT labs follow similar or even shorter retention schedules.
Why Drug Test Results Are Your Most Critical Evidence
Under AB 2188, the distinction between different types of drug test results can make or break your case:
| Test Result | What It Means | Potential Claim |
| THC-COOH (metabolites) only | Past cannabis use, no impairment | Potential wrongful termination under AB 2188 |
| Parent THC (9-THC) detected | Recent use, possible impairment | More complex analysis needed |
| Metabolites + documented impairment or Positive Saliva Test | Employer may have legitimate basis | Employer may have legitimate basis |
Step-by-Step Guide: How to Preserve Your Drug Test Evidence
Step 1: Request Test Results from Your Employer (IMMEDIATELY)
Write a formal letter to your employer’s Human Resources department requesting:
-Complete drug test results
-The name and contact information of the testing laboratory
-The type of test performed (urine, oral fluid, blood, hair)
-Confirmation test results (LC/MS/MS or GC/MS)
-Chain of custody documentation
Step 2: Contact the Testing Laboratory Directly
Request:
-A copy of your complete test results
-Specimen type used
-Analytes tested (THC-COOH vs. parent THC)
-Concentration levels detected
-Current specimen retention status
Step 3: Document Everything About Your Termination
-Exact date and time you were informed of termination
-Who told you (names and titles)
-Exact words used to explain the reason for termination
-Any verbal statements about the drug test results
-Whether any impairment was alleged
Evidence Gathering Checklist
Drug Test Documentation:
– [ ] Initial screening test results
– [ ] Confirmation test results (LC/MS/MS or GC/MS)
– [ ] Analytes detected (THC-COOH, parent THC, or both)
– [ ] Concentration levels
– [ ] Specimen type
Termination Documentation:
– [ ] Written termination notice or letter
– [ ] Communications explaining reason for termination
– [ ] Names of individuals involved in termination decision
Employment Records:
– [ ] Employee handbook
– [ ] Company drug testing policy
– [ ] Recent performance reviews
Special Considerations for DOT-Regulated Positions
If you work in a DOT-covered position (CDL, aviation, railroad, transit, pipeline), different rules apply. Federal law (49 CFR Part 40) preempts California’s AB 2188 protections for these positions.
However, still preserve your evidence because:
-Your employer may not actually be DOT-regulated
-Your specific position may not be covered
-You may have other claims unrelated to AB 2188
Key Takeaways
- ACT IMMEDIATELY – Evidence disappears faster than your filing deadline
- Request test results IN WRITING from both your employer and the testing laboratory
- Know what to look for THC-COOH (metabolites) vs. parent THC (9-THC)
- Document everything
- Three years to file, but evidence may vanish in one
Disclaimer: This article provides general information and should not be considered legal advice. Consult with an employment attorney about your specific situation.
If you have been terminated or penalized by your employer for off-duty marijuana use, please call our marijuana assistance hotline at (949) 620-0718.
