Employee Employee Privacy Privacy

in the Public in the Public SectorSector

IMLA Employment Law ProgramIMLA Employment Law ProgramNovember 9-11, 2008

Dallas, Texas Melinda H. Barlow

Assistant City AttorneyArlington, Texas

Drug Testing of Public Employees

Fourth Amendment of the U.S. Constitution:

Unreasonable Search and Seizure?

Permissible Drug Testing of Public Employees

• Required by Federal Law

• Reasonable Suspicion Testing

• Physical Exam(as required by job)

• Special Needs Doctrine

Special Needs Doctrine:

“Where the Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.”

Nat’l Treasury Employees Union v. Von Raab,489 U.S. 656 (1989)

Supreme Court Cases:

Nat’l Treasure Employee’s Union v. Von Raab,489 U.S. 656 (1989)

Skinner v. Ry. Labor Executive’s Ass’n, 489 U.S. 602 (1989)

Chandler v. Miller,520 U.S. 305 (1997)

Vernonia Sch. Dist. 47J v. Acton,515 U.S. 646 (1995)

Factors Considered by the Supreme Court:

Safety Sensitive• Highly regulated industry• Discharge of duties fraught with risks of injury

to others such that even a momentary lapse of attention can have disastrous consequences

Expectation of Privacy

Particular problems of drug use within the employee group

Deterring drug use of children

Other Courts’ Decisions finding a Position is subject to drug testing:

Teachers and administrators seeking transfer or promotion

Operator of large trucks and equipment

Airline Industry

Access to NCIC police database

EPA workers who handle hazardous property

Janitors handling dangerous chemicals

Persons with access to classified information

Engineers in Nuclear Power Plant

Other Cases Wherein Drug Testing Struck Down:

Purely administrative positions in jail

Elevator operators, masons, carpenters, plumbers, sign painters

Post-injury testing of allschool employees

Random drug testingof all students

Drug Testing Applicants v. Employees

Willner v. Thornburgh,928 F. 2d 1185 (D.C. Cir. 1991):

Attorney applicant for DOJ

Lanier v. City of Woodburn,518 F. 3d 1147 (9th Cir. 2008): Library page

• Are the discharge of duties fraught with risks of injury to others such that even a momentary lapse of attention can have disastrous consequences?

• Does the position involve the safety of children entrusted in care of the employee?

• Does the employee have influence over children as a societal role model and contact with children as part of their regular duties?

• Is the employee’s profession highly regulated?

• Is there evidence of any particular problems with use of drugs with a particular group of employees?

Factors to consider when contemplating whether drug testing of a particular position would pass constitutional muster:

Don’t Forget Individual Liability

Well-settled law?

Retaliatory Motive?

Conviction and Arrest Records

• The nature and gravity of the offense or offenses;

• The time that has passed since the conviction and/or completion of the sentence; and

• The nature of the job held or sought.

Convictions

The employer should consider the following three factors in determining whether business necessity justifies rejection of the candidate:

Arrest Records

An arrest without a conviction does not establish that a person actually engaged in misconduct.

The arrest records must not only be related to the job at issue, but the employer must also evaluate whether the applicant/employee actually engaged in the misconduct.

An employer can do this by giving the person the opportunity to explain and by making follow-up inquiries necessary to evaluate his/her credibility.

State Anti-discrimination Statutes:

• Conn. Gen. Stat. § 46a-80 (2001)• Haw. Rev. Stat. § 378.2.5 (1993 & Supp. 2000)• Wis. Stat. Ann. § 111.321 (West 1997 & Supp. 2001)• Cal. Lab. Code § 432.7 (West 1989 & Supp. 2002)• 775 Ill. Comp. Stat. Ann. § 5/2-103 (West 2001)• Mass. Gen. Laws Ann. ch. 151B, § 4(9) (West 1996 & Supp. 2002)• Mich. Comp. Laws § 37.2205a (2001)• R.I. Gen. Laws § 28-5-7(7) (2000)• Colo. Rev. Stat. § 24-5-101 (2001)• N.J. Stat. Ann. § 2A:168A-1 (West 1985 & Supp. 2001)• N.Y. Correct. Law §§ 752-54 (McKinney 1987 & Supp. 2001-2002)• N.Y. Crim. Proc. Law § 160.60 (McKinney 1992 & Supp. 2001-2002)• N.Y. Exec. Law §§ 296(15)-(16) (McKinney 2001)• R.I. Gen. Laws § 28-5-7(7) (2000)

Credit History

Fair Credit Reporting Act (FRCA)

The FCRA determines the circumstances under which employers may request consumer reports for prospective or active employees. 15 USC § 1681, et. seq.

Potential for Disparate Impact Claims

Unbiased criterion as to which groups will have pre- or post-employment credit checks

• Employer must notify the employee about the negative information and being reported prior to taking action against the employee.

• The employee has an opportunity to dispute this information with the company providing the report.

An employer may take action, up to and including termination, when a credit check reveals what may be considered “actionable information” if the employer has taken the necessary steps required by the FCRA. The steps required by the FCRA include:

• What negative credit information will be considered “actionable information” and will this change on a case by case basis?

• Is there a reasonable link between the actionable information and the employee’s continued fitness for their current position?

• What if the employee’s performance evaluations reveal that they are effective or highly effective?

• How will you address long-term employees and others in protected classes who may be disproportionately impacted by your decision to act on negative credit information?

• What level of discipline is appropriate?

• Will you give the employee an opportunity to cure?

• Is negative credit “just cause” for disciplinary action?

Questions for management: