Friday, March 14, 2008

The Constitutionality of Pre-Employment Drug Testing for Public Employees

Hypodermic_needle Ross Runkel's Law Memo brings word that the Ninth Circuit has handed down Lanier v. City of Woodburn, 06-35262 (9th Cir. Mar. 13, 2008), a case discussing the permissibility of drug testing public employees.

Ross summarizes the case:

Lanier sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests violated her privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution.  The trial court granted summary judgment in Lanier's favor, finding that the policy was facially unconstitutional.  The 9th Circuit affirmed in part and reversed in part - concluding that the policy was unconstitutional as applied to Lanier (who had applied for a job as a library page) but not facially invalid.

The employer argued that it had a substantial and important interest in screening library pages because 1) drug abuse is a serious societal problem; 2) drug use has an adverse impact on job performance; and 3) children must be protected from those who use drugs or could influence children to use them.  The court rejected that argument, reasoning that the United States Supreme Court's decision in Chandler v. Miller, 520 US 305 (1997) "makes clear the need for suspicionless testing must be far more specific and substantial than the generalized existence of a societal problem of the sort that [the employer] has posited."  The court noted that the need in suspicionless cases not involving interdiction work (or high risk/safety-sensitive tasks) must be "special" and not merely "symbolic."

I think the court got this one right. There needs to be a case-by-case analysis if there is a specific and immediate government interest in conducting the drug search before invading public employees' Fourth Amendment rights to be free from unreasonable search and seizure.

The use of the word "symbolic" in the court's decision brings to mind Justice Scalia's dissent in the Von Raab case concerning federal custom agents.  Pointing out that there had not been a history of drug abuse among custom agents, Scalia argued, correctly in my view (yes, you can pinch yourself) that the government should not be able to violate a public employee's 4th Amendment rights for symbolic purposes.

The best approach when dealing with conflicting interests between public employees and the government employer is to engage in an ad-hoc balancing test, as in the First Amendment Pickering area.  It is not a perfect test, but at least it allows the court to weigh the relevant interests before bringing governmental power to bear on citizen employees.


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I for one believe it should be unconstitutional not to test for drug abuse in the workolace. What about my rights as a non-user. Don't I have the right to be safe. Studies have shown more accidents happen in workplaces that do not drug screen.

In addition more thefts occur, medical insurance cost more and the list goes on. In fact a recent study by the National Chamber of Commerce says:

The national average estimate for the cost of substance abuse to a company per user is $7,000 in lost productivity, accidents, absenteeism and replacing fired and suspended employees.
Use the following formula to estimate the cost of employee substance abuse in your business:
1. Estimate the percentage of your total number of employees that use drugs. The national average is 17 percent.
2. Multiply the number of employees you have by this percentage.
3. Multiply that by the national average cost per substance abuser ($7,000).
4. The result is the annual cost of substance abuse within your company

Don't I have a right to be safe and that employers should test fro substance abuse both pre-employment and randon.

Posted by: Terry | Aug 27, 2008 2:30:07 PM

There nothing "symbolic" about random drug testing in the workplace.
With nearly 10% of the workplace abusing drugs (not including alcohol) on a regular (monthly) basis, companies MUST test to assure a safe workplace. Failing to do so, is a violation of their mandate to provide a safe environment for all employees.

Posted by: Peter Cholakis | Sep 24, 2008 12:12:43 PM

Riiiiiiiiiiiiight, another study. And by the ever qualified and reliable national chamber of commerce. Get real. If you feel you're not safe do a study yourself. Or don't you trust yourself? Geeez, the self imposed ignorance never ends.

Posted by: moe | Oct 21, 2008 4:53:19 AM

If drug users (let's say those who smoke a joint now and then, as opposed to you boozers who get wasted every night on a "legal" drug, which, of course, doesn't cause any societal problems at all . . .) are indeed so dangerous, have such poor job performance, and are basically so awful that children must be protected from even coming in contact with them, etc., don't you think it should be pretty obvious who the drug users are? If they are such complete failures and obvious screw-ups, we shouldn't need a pee test to ferret them out--they would be the folks failing in all areas of their life, unable to even remember the location of their job, much less be able to perform it. Oh, in reality they're just like everyone else, so it's impossible to tell who they are? Hmm. Maybe the focus should be on job performance, not on what happened at a rock concert, or whatever, 3 weeks ago. Maybe, instead, we need a test to identify mean people, or lazy people, or people who abuse their spouse, etc. Polygraphs could be a useful tool, I suppose . . . What are we really trying to solve here? Does anyone really still believe that marijuana is more dangerous than alcohol or the prescription drugs that society embraces with open arm?

Posted by: Doug | Feb 3, 2009 6:32:38 AM

I think drug testing employees is necessary for the safety of everyone. Especially if the job requires you to be sober while operating any machinery, etc. The company I work for uses a Professional Employer Organization to administer tests to candidates like integrity tests and personality tests, and they also do random drug testing after employment. It keeps the employees clean while they are working because the drug tests can happen at any time since it is a random computer selection. I feel that anyone who even uses drugs occasionally and tries to fight the system shouldn't be employed. If the company wants their employees to be drug tested and they are against it, then don't apply for the job.

Posted by: Sam | Sep 15, 2009 10:34:07 AM

The issue is privacy. It is not up to me to prove my innocence. It is up to the accuser to prove my guilt. If im caught stealin something, or if I trip and fall at work and suffer an injury, then go ahead, test me.
Pre-employment drug screens are un-constitutional.

Posted by: Chris | Jan 14, 2010 8:25:57 PM

If safety is the issue why don't employer's in a high risk business require their potential employees to hand in the guns for safe keeping while employed and as a prerequiste of employment. I submit anyone possession of a firearm at their home or in public poses a substantial threat to me and everyone on the other end of the weapon they happen to be holding. One might argue, those people don't present a threat as long as they aren't carrying the gun with them at the time. That is basis of my argument, I contend, I pose no threat to your safety or anyone else's if I'm not under the influence at the time.

Posted by: Leo | Feb 1, 2010 3:37:21 AM

I do feel that a PRE-employment test is a infringement on my rights. Once employed it is the company's right to test. A employee should be judged on there work not what we do when unemployed. I have had this effect my live. The THC can stay in a body for 6 to 8 weeks, and is pot a drug? The plant grows in nature, it is not manufactured or changed, God put it on earth for humans to used, like the bark of Birch trees as aspirin, and many many other plants. A murder can get off for a loop hole in a law. i do not believe that anyone can tell by my performance if i smoked a joint last night or not unless you go into my organs.

Posted by: Peter Miller | Jul 30, 2010 5:39:50 AM

Pre employment drug testing is unconstitutional. There can be no argument. There are those who site their "right to work in a safe environment", as if the joint I smoked last night somehow endangers their life. How exactly does it do that? And what about the guy working right next to me that came to work still stinking of the whiskey and beer he consumed until he passed out in a drunken stupor? Do you feel safer working with a bleary eyed, hung over alcoholic as opposed to a person who is feeling absolutely no ill effects from the two or three hits of weed that he or she smoked the night before? Why is it legal to be a falling down drunken ass, but smoking a joint is somehow wrong?

Posted by: Matt King | Apr 7, 2014 9:10:15 AM

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