Privacy Issues in the Workplace

Edgerton v. State Personnel Board 267 A Caltrans equipment operator failed a random drug test by testing positive for marijuana. The employee was suspended and agreed to remain drug free and to submit to random drug testing. Subsequently, the employee was given an off- duty drug test where he tested positive for methamphetamines. After he was terminated, the employee filed a suit in state court alleging that off-duty drug testing infringed upon his right to privacy. The court issued an injunction prohibiting Caltrans from conducting off-duty drug testing of its employees. Caltrans appealed and the appellate court affirmed the decision. The court stated that the intrusion into an individual’s privacy is significantly enhanced when the employee is subject to follow-up drug testing on his off-duty time. Moreover, Caltrans failed to explain why follow-up drug testing could not instead take place during an employee’s regular work hours.

2. T YPES OF D RUG T ESTING FOR E XISTING E MPLOYEES

a. The “Reasonable Suspicion” Standard The Fourth Amendment to the United States Constitution protects individuals from unreasonable intrusions by government officials; this includes unreasonable drug testing. However, in Skinner v. Railway Labor Executives’ Association , the United States Supreme Court upheld drug testing of any railroad employee where there was reasonable suspicion of impairment due to drug use. 268 After Skinner , courts have held that drug and alcohol testing of employees is legally permissible when there is some individualized basis for suspecting that an employee is currently using illegal drugs and/or alcohol, and that such use has impaired the performance of his or her job duties. b. Objective Evidence Required Although reasonable suspicion testing does not require certainty, mere “hunches” are not sufficient to meet this standard. The criteria justifying reasonable suspicion include the following:

 Observable phenomena, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug;

 A pattern of abnormal conduct or erratic behavior;

 Arrest or conviction for a drug-related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use or trafficking;  Information provided either by reliable and credible sources or independently corroborated; or  Newly discovered evidence that the employee tampered with a previous drug test. 269

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 86