Employee Privacy Concerning Drug Testing In The

Workplace Essay, Research Paper

Employee Privacy Concerning Drug Testing in the Workplace

December 13, 2000

Labor and Employment Law MGT 424

Fall 2000

Employee Privacy Concerning Drug Testing in the Workplace

A. Court Cases Affecting Privacy of Employees and Drug Testing in the Workplace

1. Supreme Court cases affirming drug testing

a. Skinner v. Railway Labor Executives Association 109 S.Ct

1402(1989)

b. National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384 (1989)

2. Other lower court and State court rulings

a. Kraslawsky v. Upper Deck 56 Cal.App.4th 179, 66 Cal Rptr.2d.297(CA 4, 1997)

b. Pettus v. DuPont, 49 Cal.App.4th402, 57 Cal.Rptr.2d 46 (1997)

3. Supreme Court cases dealing with Privacy in general

a. Griswold v. Connecticut381 U.S. 479, dealing with individual rights to privacy

B. How Do You Define Drugs.

1. Just Illegal Drugs on the Street.

2. Alcohol can be abused to.

C. What is Reasonable Suspicion.

1. Who should be the one to decide this.

a. What should the criteria be.

2. Should we only test the most critical jobs that are for the safety of the public good.

D. Lab Testing

1. Is it accurate and can the employer rely on the outcome.

2. How much do you spend to make sure you get the right answers

E. Positive Test

1. How should the information be handled.

2. What should be done with the employee.

3. What about rehabilitation.

F. Who’s Rights are We Infringing On

1. Employees.

2. Employers.

Privacy and drug testing have gone hand in hand since President George Bush instituted the Drug-Free Workplace Act in 1988. This act only affected federal workers and was only to be used in certain circumstances, so as to not impact the privacy of the federal employees, but to make sure that the federal workplace was a safe place to work in. This was actually the start of pre-employment drug testing and the on going testing of those who had returned from a rehabilitation programs for drug and alcohol abuse previously. All federal agencies instituted drug-testing programs at this time to protect the safety and security of government employees and the public.

The act provided that programs had to be legal and be communicated to the employee. Discipline was left up to the employer’s discretion. If the employee was found guilty of criminal sanctions, the employer must administer some type of employment sanctions towards the individual also. Most of the programs were and are focused on rehabilitation and recycling of the employee back into the work environment. Privacy was extremely important with this act. It was important that the employer only used drug testing for pre-employment and not as an on going harassment of the employees if they were not found to be abusers.

A number of legal definitions of privacy really have come about due to the 1890 Harvard Law Review article “Right to Privacy”, written by Samuel Warren and Louis Brandeis. They felt that it is the right of the individual was “to be let alone” and that the press or anyone else should not infringe upon his/her privacy. In conjunction with the Law Review, the case of Griswold v. Connecticut (381 U.S. 479) also addressed privacy. Justice Douglas wrote that the individual should be afforded a “zone of privacy” around their person, which cannot be violated by government intrusion. It is articles and cases like these that have shaped our current legal system and how they look at the individual privacy issue. Many cases have been decided on these decisions and articles.

There have been some cases that have affirmed suspicion less or random testing for drugs. Loder v. City of Glendale (1997) 14 Cal.4th 846, 59 Cal.Rptr.2d 696. The Court held that the city could require all job applicants to submit to drug testing. However, suspicion less drug testing of all current employees who were offered promotions was not reasonable under the Fourth Amendment. In this instance, the courts have protected the rights of the employee to not be tested again after they have been hired, just because they are being looked at for promotion. If the employee is acting normally and making good decisions on their current job, there is no reason to test them just because they are being promoted.

On the other side, there have been two cases that took the opposite viewpoint about the same subject as above. Skinner v. Railway Labor Executives Association, 109 S.Ct. 1402 (1989), holding that federal regulations mandating drug testing of railway workers were reasonable even though no warrant or reasonable suspicion existed, National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384 (1989) holding that suspicion less drug testing of Customs Service employees applying for promotion to positions involving interdiction of illegal drugs or requiring them to carry firearms was a reasonable search under the Fourth Amendment. In these cases the courts consistently have upheld federal laws mandating random drug testing for employees in interstate transportation, nuclear power plants, law enforcement and other safety-sensitive positions. When the public safety is at risk, employee privacy can be breached to make sure that the public good is being prot

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