TO DRUG TEST OR NOT TO DRUG TEST -- AN EMPLOYER'S DILEMMA

Aaron Morris, Esq.

Nine percent of current employees and 12% of job applicants test positive for illegal drug use, the U.S. Department of Labor has reported. Given these numbers, and the fact that drug abuse is estimated to cost business $100 billion per year in lost profits, it is no wonder that many businesses are considering drug testing.

But recent rulings by California courts have created a slippery slope for employers who wish to utilize drug screening. Unjustifiable drug tests have resulted in major damage awards to objecting employees. In light of these risks, is drug testing still a realistic option?

Answering that question requires a little history.

In 1972, Californians voted to add a "Right to Privacy" clause to the California Constitution. While originally envisioned to only bar privacy intrusions by the state, in 1989 a California Court of Appeal held that the right to privacy also applies to private employers.

That ruling sprang from the pre-employment drug testing that was being used by the publisher Matthew Bender & Co.  Under Matthew Bender's program, applicants that Matthew Bender had decided to hire were given a conditional offer of employment, subject to a final medical exam.  During that exam, a urine test for drugs was conducted on all applicants.  The clinic that performed the exams would then issue each applicant a medical rating based on the results of the exam.  A positive drug test resulted in an automatic failing rating, but since other medical conditions could also result in such a rating, Matthew Bender itself never knew with certainty why an applicant was rejected.

The test was ultimately challenged when one of these "conditional employees" brought suit, claiming the test violated his right of privacy.

In upholding Matthew Bender's drug testing procedure, the court stressed two important factors. First, the test results were confidential, so any intrusion on the applicants' privacy rights was minimized.  Second, only applicants were tested.  Testing current employees could be coercive, but a potential applicant can avoid any privacy intrusion by simply not applying for the position.  On these bases, the court ruled that prospective employees could be tested.

The issue of whether current employees could be tested was examined the following year in Luck v. So. Pacific Transportation Co.  There, an employee was fired when he refused to submit to a surprise, random drug test.  The employee claimed that such a demand violated his right to privacy.  The court and the jury agreed, and awarded the employee half a million dollars in damages.

The Court of Appeal allowed the judgment to stand, holding that in the case of existing employees, the employer must demonstrate a "compelling interest" for impinging on an employee's right of privacy.  The court did not say that drug testing of current employees is inherently unconstitutional, but said that there must be a direct connection between the employee's duties and the potential harm of the drug use.

So, given these decisions, an employer can safely drug test applicants, but not current employees, correct?  Unfortunately, the law is never that simple.

Enter the decision of Soroka v. Dayton Hudson Corp. The Soroka case arose from a psychological test that Target stores were using to test prospective security guards. Although this "Psychscreen" test was intended to identify emotionally unstable applicants, certain questions arguably revealed the applicants' sexual orientations. This led to legal action designed to enjoin Target from using the test.

The Soroka court was not persuaded by the earlier ruling in the Matthew Bender case. Instead, the court ruled that everyone is protected by the same right of privacy, regardless of their status as an employee or mere applicant.

Although Soroka was not a drug testing case, the reasoning is analogous.  The right of privacy of an employee, prospective or otherwise, cannot be violated absent a compelling reason.  Such compelling reasons have not been defined, but would probably include safety and security. The laudable goal of providing a drug free work place is not considered a compelling reason.

If your company is considering running this gauntlet of uncertainty, you should consider a few points.

First, if the goal is to weed out drug related inefficiency, then drug testing is probably unnecessary. Address the resulting poor work performance, not the suspected drug problem.  Repeated disciplinary actions will eventually lead to the employee's termination, or motivate him to address the underlying cause.

Next, if drug testing is adopted, decide on and publicize the specific "compelling interests" the testing is designed to advance.  Then apply the test evenly to all employees that fall within the defined interests.  If possible, establish a procedure that maintains confidentiality, such as the method used by Matthew Bender.

Finally, use a bullet-proof procedure.  This means using a reliable, certified lab, with checks and double checks for positive tests.  Woe to the employer that takes disciplinary action based on a false positive.

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Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Tustin, Orange County, California. He can be reached at (714) 954-0700, or by email.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.