Terminating the Employment Relationship

2. D RUGS AND A LCOHOL Privacy interests are also implicated by terminations resulting from drug/alcohol testing. While an employee may have a right to be free from intrusive and unwarranted investigations into his/her off-duty lifestyle, the employer has an obligation to provide a safe and drug free work environment. In Edgerton v. State Personnel Bd ., the Court held that off-duty follow-up drug testing of Caltrans employees violated the employees' privacy interests under the State Constitution. 68 Despite privacy considerations, courts have routinely held that drug/alcohol testing based on reasonable suspicion of on-the-job impairment is constitutional. 69 Accordingly, supervisors and managers must gather as much evidence as possible, and document in writing the specific facts and rational inferences from these facts leading to the reasonable suspicion that an employee is under the influence of drugs or alcohol. Public employers should be aware that they must have a drug testing policy before they can test for drugs and/or alcohol, even for “reasonable suspicion” testing. 70

In Holliday v. City of Modesto 71 , a Court of Appeal held that employee drug testing constituted a condition of employment, and was subject to negotiation with the union under the Meyers-Milias-Brown Act. Accordingly, public employers should meet and confer with pertinent unions before establishing an employee drug testing policy.

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3. W ORKPLACE S URVEILLANCE Workplace surveillance of employees without their knowledge can give rise to a claim for invasion of privacy. The California Supreme Court upheld the use of “hidden camera surveillance” in the workplace to monitor employee conduct. In Hernandez v. Hillsides, Inc . 72 , two employees of a juvenile residential facility were suspected of viewing computer pornography after hours. The employer set up a surveillance camera to catch them. Although the employees were never taped, they sued for invasion of privacy. The Court considered two elements of this alleged privacy violation: (1) the nature of any intrusion upon reasonable expectations of privacy; and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests. The Court found that the plaintiffs had a reasonable expectation of privacy but did not establish the second element - that the intrusion was sufficiently offensive. In particular, the intrusion was not offensive because the camera was on after hours, was only on three times in three weeks and did not actually tape record the employees. Further, because of the nature of the agency’s work with juvenile offenders, the misconduct the employer sought to record on video – in this case, accessing pornography – exposed the employer to legal liability and was inconsistent with the organization's goal to provide a wholesome environment for the abused children in its care.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 36