The Right to Fair Treatment

The Fifth Amendment provides individuals with the right against self-incrimination and the right to due process. These rights can both be violated by drug testing programs.

The Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases rising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, not shall private property be taken for use, without just compensation.

A defense based on self-incrimination is not likely to succeed in a drug test context. It has already been held by the courts that breath and blood testing do not represent a violation of the Fifth Amendment in relation to self-incrimination. Additionally, urine tests have been confirmed as also being in this same category. In Skinner v Railway Labor Executives Associations the Supreme Court held that the self-incrimination defense in relation to drug testing urine samples.

Due Process

One way in which your Fifth Amendment rights may be violated is if you are required to take part in a drug test and the test itself involves some degree of arbitrariness, whether in terms of the process or the results. The balance between fairness and arbitrariness is generally determined by reviewing how accurate the procedures are and demonstrating that these procedures were actually followed when the test was carried out.

One case that attracted a lot of attention due to the way that it abused the drug testing process occurred at the Georgia Power Company. Two employees of the plant, Susan Register (a mechanical expeditor) and Leslie Price (a quality control inspector), were worried about safety in the nuclear power plant and they made a report of this to the Nuclear Regulatory Commission. After making this report, they were informed that they were "hot lined" and forced to submit to a drug test. Register said that a nurse forced her to put her pants around her ankles, bend from the waist and knees, raise her right arm and use her left hand to position a specimen container under her crotch. At this time, she says she was vomiting, crying and wetting herself. She eventually refused to submit the test, and as a result of this insubordination, she was fired. Price, on the other hand, gave a urine sample which supposedly returned a positive result for marijuana. She was also fired due to "misconduct". If the reason given for her termination was drug use, then the company may have been ordered to recheck all of her quality-controller work by the Nuclear Regulatory Commission. This would have been a very expensive exercise. This case is one example of the way that drug testing has been used as a punishment when people complain about a workplace.

It is not only employers that have the capacity to abuse drug tests. Situations may arise where a spiteful colleague claims that they heard a rumor that you were using drugs, and this could result in you being tested. The fact that false positives occur so frequently may then mean that your results are positive even if you have never personally used drugs. There is also the concern that drug testing may be subtly used for a variety of purposes, such as preventing union actions or disciplining employees who are outspoken about the company.

A class action suit was filed by employees at the Pacific Refining Company, located in Hercules, California resulting from a company order that all employees submit urine samples to be tested. The terms of the testing were that the employees enter the testing room, partially undress and make themselves visible so that the urine collection could be verified by a witness. Three employees refused to go through this and they were fired as a result. The company maintained that they wouldn't fire anyone who returned a positive test result, and that they only fired the employees who refused because the testing required everyone to participate. The ACLU and John True (an attorney from the Employment Law Center) assisted the employees and organized a restraining order to be issued in order to stop the testing. This was one of the first cases that testing the relationship between privacy and drug testing in California.

Hercules claimed that they didn't believe employees at the refinery had a drug problem. The decision to drug test the employees came from the main office located in Houston. This decision was made on the basis that using drugs is "pretty pervasive" throughout current society. John True argued that testing didn't relate in any way to the impairment of employees, and that because it could reveal the consumption of legal medications or pregnancy then it should be considered a violation of the right to privacy.

There has been a significant evolution in the rights of a company to drug test its employees since mass screening began. Drug testing employees who are suspected of taking drugs, employees involved in a workplace accident and employees that hold positions involving sensitivity have been held to be acceptable according to the Supreme Court. The fact remains that the majority of employees are drug-free, are not employed in "sensitive" positions, and are able to avoid accidents in the workplace.

In Skinner v railway Labor Executives Association, post-accident drug testing was upheld by a 7 to 2 majority. One of the justices in this majority was Justice Scalia but his judgment disagreed with the 5 to 4 majority who upheld drug tests for some Customs employees, but not all of them. In his judgment, Justice Scalia, reported that only 5 out of the 3,600 Customs employees who were drug tested returned positive results. He also noted that only 203 of the 30,000 employees of the Federal government who were drug tested in 1988 returned positive results. This is less than 0.7%.

The interpretation that the Supreme Court gives to the Fifth Amendment seems to be moving away from a requirement that there be a "particularized" suspicion before a search is justified. This is a shift that concerns Civil libertarians who foresee the erosion of the rights to privacy of innocent people. They argue that such a change may lead to dragnet testing in offices, searching travelers or conducting blanket AIDS tests. The contrast between the levels of drug use for Customs workers and railroad workers lead Justice Scalia to conclude that there isn't "real evidence of a real problem that will be solved" using drug tests. He also said: "Symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search."

The limited range of the decision, and the fact that it was only a 5 to 4 vote, means that the decision of the Supreme Court in National Treasury Employees Unions v Von Raab probably means that drug testing will be limited. Dr Michael Walsh from the National Institute on Drug Abuse responded to this judgment by commenting that the "issue in our program has always been who (to test). The most difficult decision is where to draw the line. Nuclear people are obviously in, and clerical people are obviously out, but there are a lot of people in the middle".

Voluntary Consent

The existence of due process is confirmed when the subject actually gives their consent to be drug tested. This consent must obviously be voluntary, and it can't be forced. This issue has raised a lot of debate as people are compelled to question whether the given consent can be considered voluntary if there is an assumption that they'll be fired if they refuse consent.

The existence of probably cause or reasonable suspicion doesn't mean that employer are justified in attempting to get a sample from you by force. Using force may in fact be considered to be battery. One case where this occurred involved a UPS nurse who requested that a blood and urine sample be provided by an employee as soon as he returned to work after a vacation. This employee was a previous drug user who had undergone a treatment program for drug abuse. He initially refused to provide the samples. The nurse disregarded his refusal and "plunged a needle into his arm and extracted blood". The force used in this scenario was a blatant violation of the concepts of consent and privacy. Samples for drug testing purposes should always be given with voluntary consent.

Prior Information

Employees should always be informed in advance of the drug testing program. This information may be contained in your employee handbook or posted on company bulletin boards. The information included should include how the program works and the sanctions involved in the case of a positive result. Providing this information generally enables companies to comply with consent requirements and to demonstrate that they treat employees fairly.

Consent and Notification

According to the Department of Justice, the fact that a public employee knows that they will be drug tested as part of their employment and this awareness doesn't lead them to quit their job means that they have consented to be tested. This is an interesting application of logic. The notion that voluntarily consenting to a search is consistent with Fourth Amendment requirements has been confirmed by the Courts.

The Office of the Attorney General of Maryland says: "A valid consent to a search must in fact be voluntarily given, and not be the result of duress or coercion, expressed or implied. It flies in the face of economic reality to suppose that an employee voluntarily consents to a drug test when the alternative is losing his or her job, or, for that matter, that an applicant voluntarily consents when the alternative is being denied the job. Agreement to a search motivated by fear that refusal will lead to loss of one's livelihood is not voluntary consent."

If you know that a particular job involves drug testing as a condition of employment and you accept the position with that knowledge, it does not necessarily mean that you have voluntarily consented to be tested. Two cases, Security and Law Enforcement Employees v Carey and McDonnell v Hunter, have involved the testing of prison employees. These employees were informed when they accepted their jobs that searches would be required. In McDonnell v Hunter, the employees had even signed a form saying that they agreed to have their urine or blood tested when asked by the employer. In Security and Law Enforcement Employees v Carey the employees were each given a manual that contained information about the search requirements of the employment. Regardless of this information, in both cases, the Court found that voluntary consent was absent. This was because of the element of coercion. If the employees declined the search they would face serious negative consequences and this means that submission cannot be considered voluntary consent.

The true existence of "consent" cannot be inferred simply due to the fact that the employee: (i) knew that the employer could intrude into their privacy as the result of certain actions, and (ii) the employee goes ahead with those actions regardless. If this was not true, the police would be able to rely upon the concept of implied consent to justify searching everyone out in public after 11pm simply by advertising that this would take place in the press.

There are two views to this element of drug testing. The first is that made by Stephen trot from the Justice Department. He says: "We're convinced that under the circumstances, this test will be proved to be Constitutional. We're in a situation� where the county has a real serious problem on its hands. And I think, under the circumstances, a drug testing program is appropriate. Let me try to draw a parallel. A number of years ago, we used to be able to get on airplanes and fly from city to city without going through magnetometers and having our baggage searched at the gate. We developed a serious problem. We couldn't take an airplane flight without ending up in Cuba. We had to put in a fairly comprehensive program in our airports to stop this from happening, and the Courts, when weighing the problem against the intrusion in one's personal life, decided this was Constitutional".

The second point of view was expressed in the case of US v Albarado. It is as follows: "If the government were to announce that all telephones would be hereafter tapped, perhaps to counter an outbreak of political kidnappings, it would not justify, even after public knowledge of the wiretapping plan, the proposition that anyone using a telephone consented to being tapped. It would not matter that other means of communication exist� it is often a necessity of modern living to use a telephone. So also it is often a necessity to fly on a commercial airliner, and to force one to choose between that necessity and the exercise of a Constitutional right is coercion in the Constitutional sense."

The issue surrounding the voluntariness of drug testing is extremely important due to the fact that when valid consent exists, there is no need for probable cause or a warrant in order to conduct the test. In a private company, the company posting a policy in a public area will generally be taken as an indication that employees have given their consent to be tested. This approach however, may not be valid according to law. The case of Luck v Southern Pacific involved a pregnant woman called Barbara Luck. She worked as a computer programmer for a company in California for 6 years. The company announced a drug test would be administered to all employees in Barbara's department. She refused to take the test and was subsequently fired as a result. Barbara then filed a lawsuit for wrongful termination. The court told the jury that the company needed to demonstrate that drug testing Luck was required "in order to achieve the public interest of safety in the operation and maintenance of the railroad". The company failed to satisfy this proof and Luck was awarded $485,000.

The company, Southern Pacific, brought an appeal against this verdict. The Court of Appeal upheld the initial decision in 1990. In making this decision they ruled that a company is required to show a "compelling interest" in order to justify drug testing employees whose positions are not safety-sensitive. This judgment applies to all employers in California, in both the private and public sphere. This decision however, doesn't impact whether or not job applicants can be drug tested. The degree of the "compelling interest" is higher when relating to existing employees than for job applicants. When it comes to job applicants, their right to privacy is balanced against the company's right to know. This was summarized by Luck's attorney as follows: "By this decision, employers (in California) must exercise extreme caution before they require any employee to submit to any test as a condition of employment."