A recent Ninth Circuit case muddies the waters for pre-employment drug tests.
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EMPLOYEE PRIVACY UPDATE
Pre-Employment Drug Test
Deemed Unconstitutional
By Christopher W. Olmsted
The waters have been muddied—somewhat--on the issue of drug testing applicants and employees. The legal right to drug test has always suffered from a bit of murkiness on account of ill-defined constitutional privacy rights. Will a recent federal Ninth Circuit Court of Appeal case complicate matters?
In Lanier v. City of Woodside, an Oregon municipality required all job applicants to submit to drug testing. Lanier applied for a job as a part-time page at the city library. The position would require her job to reshelf books and staff the desk at the youth services desk.
Ms. Lanier refused the drug test, and was not hired. She sued, alleging the drug test was unconstitutional under the Fourth Amendment.
The court agreed with Lanier. While drug testing might be appropriate for some job positions, the suspicionless pre-hire test was not justified for the position of library page.
The city argued that a general policy against drug abuse, and the fact that the page would be in contact with children, justified the test. The court disagreed. There were no safety issues involved. Moreover, although the position involved contact with children, it not did require responsibility over children (in contrast to school teachers, for example). The city had no right to test Ms. Lanier for illegal drug use, absent a reasonable suspicion that she was an abuser.
Private employers should beware. In California, private sector applicant drug testing, if properly administered, is lawful. While this decision may invalidate some public sector drug testing policies, the effect in the private sector remains to be seen. The court made its decision in the context of the Fourth Amendment (think illegal search and seizure). The Fourth Amendment does not generally apply in the private sector. However, California private sector employer drug testing law has its origin in constitutional law. Employers ought to keep an eye on these ongoing developments in the area of drug testing.
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This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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