Random Drug Testing by Cities

RAY_smb · October 2003

Can anyone share with me specific case examples or HR reports of 4th amendment violations caused by governmental employers conducting random drug tests on all employees (employees not regulated by DOT and not in safety-sensitive positions)?

Thank you!

Dr Steve · October 2003

Don't have anything in response to your request per se, but in the municipality I work for we currently do random testing only on DOT covered employees. In our labor negotiations, we are trying to implement random drug testing for "safety sensitive," CDL, and others who drive city vehicles on city business. For the time being, I think that's about all we can expect to be able to cover. Sorry for the non-response response, but its an area of frustration for me ... particularly when the union whines about privacy rights and then screams bloody murder over minor perceived safety concerns. If we are taking safety seriously folks, then lets take it seriously.

Don D · October 2003

And I thought the unions were only capable of getting wages/benefits run through the roof, then waiving signs at the jobs going offshore! They are more talented than I suspected.

Steve McElfresh · October 2003

A couple items from a quick google search to get you started . .

From the perspective of Nevada law, but some federal cases, and the state cases cite others from around the country:
[url]http://www.nevadaemploymentlaw.com/articles/workplace privacy.pdf[/url]

From an employee perspective, covering some of the same material:
[url]http://www.nodrugwar.com/html/booklet/your_rights.htm[/url]

Regards,

Steve Mac

Steve McElfresh, PhD
Principal & Founder
HR Futures
408.605.1870

santire · October 2003

Ray, I noticed that you are in Texas. Texas though not significantly different than most other states has taken its own path in drug screening. While Federal constitutional provisions are a significant concern, even Federal law can differ by state. For example, Texas is in the 5th Circuit which differs quite a bit from the 9th Circuit in which Nevada is located. Let me first point out that the above reference to the article “Conquering the Urine Tests” by Jeffrey Nightbyrd is interesting and well worth reading. However, it tends to exaggerate the protections available for the employee, at least in Texas. For example, it refers to a Louisiana court decision finding a drug laboratory liable for a negligent drug test. However, a recent Texas Supreme Court case specifically said Texas does not provide a cause of action for negligent drug testing against an employer. Furthermore, in the Texas case the employer clearly failed to follow DOT guidelines in a drug test on a DOT regulated employee. The basic privacy rule on drug testing is that it is OK if it is not intrusive (basically blood test is intrusive, urine test is not) and has a reasonable relationship to the employee’s work (testing a police officer is one thing, testing a librarian is another). Another significant factor is that constitutional rights play a big role in testing of public employees (due to the 14th Amendment providing 1st, 4th and 5th amendment rights to public employees) and not in testing of private employees (very little constitutional rights in the relationship with their employer). A special note about Texas involves the right to refuse a test. Texas law says that an employee cannot be drug tested without the employee’s consent. However, Texas law also says that an employer can terminate an employee for refusing such a test. How’s that for Catch-22? Furthermore, in Texas continuing to work for an employer after the employer has given notice of drug testing is considered consent by the employee. Of course, Texas courts require that the drug testing policy be reasonable. Reasonableness involves various factors such as a relationship to the nature of the work, that a random drug test be truly random, that a test given due to suspicion be well founded, and the drug test in no way be discriminatory (i.e. African Americans are not given more tests than other individuals). I hope this helps.

Random Drug Testing by Cities

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