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Court reminds public employers that standard for applicant drug testing different than for private employers

June 10th, 2014  |  Ron Miller

While suspicion-less drug testing of job applicants has become routine for private employers, a federal district court in Florida in Voss v City of Key West, reminded public employers that they were bound by constitutional principles in determining whether an applicant may be required to submit to drug testing. As a result of the City of Key West’s failure to carry its burden of demonstrating special need or an important governmental interest that justified its Fourth Amendment intrusion, a job applicant was granted summary judgment with respect to liability against the city after a conditional offer of employment was withdrawn after she refused to submit to a pre-employment drug test.

Drug-free workplace policy. Key West implemented a drug-free workplace policy “to eliminate alcohol and illegal drug use in the city’s workforce because of its responsibility for the safe, effective and efficient delivery of public services.” The policy provided for: (1) drug testing of all applicants for employment with the city, with refusal to submit to testing resulting in rejection of any application for employment; (2) drug testing of current employees “when the city has a reasonable suspicion that an employee is using or has used drugs or alcohol in violation of city policy;” and (3) random, unannounced drug testing for public safety employees, such as police and fire fighters, and “safety-sensitive positions,” such as commercial drivers.

In 2012, the city created a solid waste coordinator position, a highly visible marketing and planning position to develop, implement, and expand its recycling programs. The applicant applied for the position and provided the city with her driver’s license, educational history, employment history, three references, attested that she had no criminal history, and was subjected to a criminal background search. She was offered the position and was approved by the city manager. At the final stage of the application process, the applicant was asked to provide a urine specimen for a urinalysis drug screen. Rather than report for a drug screening, the applicant went to the city attorney’s office and objected to the pre-employment drug screening. Thereafter, the city offered the position to another candidate because the applicant refused to take the drug test.

Suspicion-less drug testing. The applicant filed suit challenging the application of the drug-free workplace policy to an applicant whose conditional offer of employment was withdrawn after she refused to submit to a pre-employment drug test. As an initial matter, the court observed that it is well-settled that drug testing which utilizes urinalysis is a “search” that falls within the ambit of the Fourth and Fourteenth Amendments. To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. However, the Supreme Court has recognized particularized exceptions to the main rule in situations where the government proffers a “special need” or “important governmental interest” which is furthered by the intrusion.

Governmental interest. In this instance, Key West was unable to show a special need or important governmental interest that justified its invasion of the applicant’s Fourth Amendment privacy interest, so the city’s policy was applied to her unconstitutionally.

The court noted that when it is demonstrated that a drug test has been administered without individualized suspicion of wrongdoing, the burden initially falls upon the government to show a special need or important governmental interest that justifies the Fourth Amendment intrusion. Key West argued two alternative interests to justify its policy requiring suspicion-less drug testing for applicants. First, it cited its interest in the “safe, effective and efficient delivery of public services.” In essence, the city relied upon the interest stated within the purpose of the drug-free workplace policy itself. However, the court noted that, while well-meaning, the purpose of the policy outlined a “symbolic” interest that the Supreme Court has previously rejected as a special need justifying suspicion-less drug testing.

The policy’s justification was notably lacking any indication of a concrete danger, observed the court. There was no evidence in the record showing a serious problem of drug abuse among applicants for employment with the city, or even among city employees generally, that might confirm the city’s assertion of a special need for a suspicion-less drug testing regime and justify a departure from the Fourth Amendment’s usual requirement of individualized suspicion. Accordingly, the city’s interest in the “safe, effective and efficient delivery of public services” was insufficient to justify intrusion on the applicant’s rights under the Fourth Amendment.

Not a safety-sensitive position. Second, the city argued that the solid waste coordinator position was a safety-sensitive position for two reasons: (1) the coordinator must occasionally supervise a waste transfer station; and (2) the coordinator gave presentations to school-aged children. With respect to the coordinator’s supervision of a waste transfer station, the court found the city’s argument without merit. There was no evidence that the coordinator had to be physically present at the facility while filling in for the transfer station manager. Moreover, the evidence demonstrated that the coordinator was not actively involved in safety-related duties around the transfer station. The court further noted that no evidence indicated that on-the-job intoxication was a significant problem among employees at the transfer station, or that accidents and property damage in the transfer station were attributable to alcohol or drug use.

The notion that the solid waste coordinator’s duty to make presentations to school-aged children rendered the position as safety-sensitive was also unavailing. First, the coordinator has never actually made such a presentation. Additionally, the undisputed evidence showed that the coordinator had no responsibilities to the children to whom presentations were made and that the students’ teachers would be in the classroom during the presentations. Because there was no evidence that the coordinator was entrusted with the supervision, safety, or security of children; or that he or she would have unfettered, unsupervised access to the children, the court rejected the contention that the solid waste coordinator position was a safety-sensitive position on this basis.

Finally, the court rejected the city’s argument that it should find that suspicion-less drug testing of applicants for employment, as opposed to current employees, was reasonable based on the DC Circuit’s decision in Willner v Thornburg. The applicants in Willner had consented to extensive background investigations by the FBI as candidates for Justice Department attorneys, while the applicant here was subjected only to routine reference and arrest history checks. Further, the court found no Eleventh Circuit precedent that held that government can violate a person’s rights under the Fourth Amendment so long as prior notice of the impending violation is given. Accordingly, the court found no reason to adopt the distinction urged by the city between applicants and employees.