Friday, September 19, 2014

Labor And Employment Law: Drug Screening And Public-Sector Employment

By Brian Koji and Shaina Thorpe

As we all learned in law school, the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend IV. Although the Supreme Court has indicated that the Fourth Amendment applies to drug screening by public-sector employers, many individuals are still told to report to the lab for testing either pre-employment, randomly, or after an accident. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 617 (1989). The question is: Are these tests “reasonable” within the meaning of the Fourth Amendment or unconstitutional?

As frequently occurs in our work, the short answer is “it depends,” particularly with respect to applicants and random testing. The courts have grappled with the concept of reasonableness in the public-sector employment context for years. As if the constitutional aspect of drug testing were not unwieldy enough, there are also Drug-Free Workplace Acts to contend with. § 440.102, Fla. Stat. (Participation in the Chapter 440 Drug-Free Workplace Act is voluntary, and compliance entitles the employer to a workers’ compensation policy discount. There is also a statute specifically applicable to public employers, and participation in that act is also voluntary.) § 112.0455, Fla. Stat. Some public employers may confuse the statute’s approval of drug testing for some employees as a green light to test all employees and applicants randomly or without suspicion. As the United States Constitution trumps the state statute on this issue, this would be error.

The Supreme Court has issued five decisions on drug testing  Skinner, 489 U.S. 602; Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995); Bd. of Educ. v. Earls, 536 U.S. 822 (2002); Chandler v. Miller, 520 U.S. 305 (1997)  giving some contours to the shapelessness of the Fourth Amendment’s reasonableness standard but stopping short of providing a bulletproof standard that employers could apply universally with certainty that their actions were constitutional. Rather, as the Eleventh Circuit recently articulated, the appropriate inquiry requires “a job-category-by-category balancing of the individual’s privacy expectations against the Government’s interests.” Am. Fed’n of State, Cnty. and Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 867 (11th Cir. 2013). 

The Eleventh Circuit provided more guidance in 2013, in one case imposing an injunction on across-the-board drug testing of all applicants for welfare assistance, Lebron v. Dep’t of Child. & Fams., 710 F.3d 1202 (11th Cir. 2013), and in another case rejecting a Florida Governor’s Executive Order requiring suspicionless testing of all current employeesAFSCME, 717 F.3d at 873-75. (Although Governor Rick Scott’s office petitioned the Supreme Court for review of the latter decision, the Supreme Court declined to hear the case on April 21. Scott v. Am. Fed’n of State, Cnty. and Mun. Emps. Council 79, 134 S. Ct. 1877 (2014).) Notably, the latter decision did not address applicants. Thus, public-sector employers may argue that there is no binding precedent squarely addressing suspicionless applicant testing, and they would be right.  

As of this date, there is no Supreme Court or Eleventh Circuit decision that expressly rules on the constitutionality of suspicionless testing of all job applicants, although other courts have done so. In particular, two federal district court cases in Florida, relying on the Supreme Court cases referenced above, have held that across-the-board job applicant testing is unconstitutional. Voss v. City of Key West, 2014 WL 1883588 (S.D. Fla. May 9, 2014) (King, J.); Baron v. City of Hollywood, 93 F. Supp. 2d 1337 (S.D. Fla. 2000) (Ryskamp, J.). In these cases against the City of Hollywood and the City of Key West, the trial courts determined the employers’ generic goals in maintaining a drug free workplace, minimizing on-the-job accidents, maximizing productivity, and maximizing public confidence in the provision of public services were insufficient to satisfy the Fourth Amendment. Similarly, other federal circuit courts and state courts have touched on the issue of drug testing job applicants, with similar outcomesSee, e.g., Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008); O’Keefe v. Passaic Valley Water Comm’n, 602 A.2d 760 (N.J. Sup. Ct. 1992), aff’d as moot, 624 A.2d 578 (N.J. 1993).

Ultimately, because the touchstone of lawful drug testing is the vague “reasonableness” standard, public employers would be wise to err on the side of caution when it comes to determining which applicants or employees should be required to participate in suspicionless drug testing.