The Search

Americans throughout history have been opposed to searches being conducted on innocent people. This tradition began in early colonial times when the forces of King George used searching tactics to find the identity of people who had committed an offence against the crown. The indiscriminate searches conducted at this time were despised. Following the American revolution, the unfairness of these searches held a strong place in the psyche of the people, and this resulted in the passing of the Fourth Amendment. This regulation mans that authorities are permitted from searching everyone (both the innocent and guilty parties) in order to find out who is guilty. There has to be reasonable grounds to suspect that a persona may be guilty before he or she is subjected to the humiliation and degradation of being searched.

The arguments commonly made about privacy are typically related to how certain key points are interpreted and applied. Some of the terms that cause the most problems include: "reasonableness", "search", "seizure", "compelling interest", "probable cause", and "particularized suspicion".

The Office of the Attorney General in Maryland makes the following statement:

"The fundamental legal question is whether drug testing in the workplace is compatible with the protection of personal privacy embodied in the Fourth Amendment's prohibition of unreasonable searches and seizures. Indiscriminate drug testing threatens traditional fourth Amendment values. Perhaps more than any other provision of the Bill of Rights, the Fourth Amendment expresses an essential quality of democracy - the defense of personal dignity against violation by the State. We ought not experiment with these rights. They are fragile. Once damaged they are not easily repaired. Once lost they are not easily recovered.

Adherence to tested Fourth Amendment principles is particularly important when, as now, there is widespread clamor for a simple solution to a serious social problem. The saddest episodes in American Constitutional history have been those occasions, such as the internment of Americans of Japanese descent during World War II, when we have bent our principles to the zealotry of the moment. What is expedient is not necessarily fair, or Constitutional. A was on drugs is a good idea, but not if its first casualty is the Bill of Rights."

Can Urine Testing be considered a "Search"?

The first issue to consider is whether or not collecting and testing a urine sample for drugs comes under the definitions of "search" or "seizure" according to the interpretation of the Fourth Amendment. In this context, a "search" involves the infringement of the level of privacy that society generally considers to be reasonable. "Seizure" involves a meaningful interference with the possessory interests that an individual has in relation to a particular item of property.

A decisive case on this issue was that of National Treasury Employees Union v United States Customs Service. In this case, the Supreme Court found that taking a urine sample to be drug tested was considered a "search" in the context of the Fourth Amendment. Even though it could be defined in this way, this action does not necessarily mean that the Amendment has been violated as this would require the search to be "unreasonable". If the intrusion into individual privacy is highly demeaning, then it must have grater justification. When an individual has a reasonable expectation that their privacy will be expected, they will also have the right "to be free from unreasonable governmental intrusion". In terms of the Fourth Amendment, an individual's privacy expectation is legitimate if society in general would be prepared to recognize that the expectation is reasonable. The Attorney General of Maryland was quoted as saying "in our view, State employees as a group have an actual, subjective expectation that their bodily functions will not be subject to government intrusion. Nothing about State employment gives employees reason to suppose that their urination is subject to supervisory inspection and probing. It states the obvious to say that State employees, like everybody else, expect to dispose of their wastes in private."

Search and Seizure

Drug tests in the workplace can be considered to be search and seizure. This means that before your employer can "search" your urine, they must be able to show that this is reasonable. This is particularly true when you run the risk of an adverse consequence to the test, which may in fact be the seizure of your employment. Generally speaking, the drug testing program will be announced to employees well ahead of time or be a matter of published company policy. They should never just announce that they'll be testing immediately. This is usually viewed as being unreasonable because employees need to give their "consent" before the search is conducted. The actual collection of the sample should always take place in a way that respects the dignity of the subject. It should never involve any element of humiliation. Unless it has been previously advertised, the legal reasonableness of your employer searching your bag, locker, purse or briefcase is questionable. There are many sensitive legal issues surrounding the concepts of searches in the workplace. If your employer wants to conduct a search then you should firmly object. Whether or not you refuse the search is a serious issue that you need to give careful consideration. Refusing a search may mean that the suspicion against you is increased. Whatever your approach is to this situation, it is very important that you stay cool and don't give your employer any further reasons to suspect you. You should also make a written record of everything that takes place.

The majority of employers these days recognize that the need to exercise a certain degree of caution before they take possession of one of their employee's property. Instead of doing it themselves, they will call the police and get them to do the searches. If you find yourself in the situation where your employer has taken the evidence directly and the evidence is subsequently mishandled, then you may have reason to bring criminal action.

Searches must be reasonable

The legitimacy of a workplace drug testing program is more likely to be confirmed if there is a reason to suspect that an employee has recently been intoxicated as a result of drug or alcohol abuse. Rules about when it's OK to violate privacy rights are usually related to the existence of "probably cause" or "reasonable suspicion".

The Reasonableness of Drug tests

  • The following factors determine whether or not a drug test can be considered to be reasonable:
  • Accuracy of testing methods
  • A secure custody chain
  • The reasons behind the testing
  • If the previous drug test have been well documented
  • If the same goals could have been achieved using less intrusive methods
  • If the company attempted to reduce the intrusive nature of collecting samples
  • If the company has procedures in place to protect the confidentiality of the results
  • The option for employees to enter rehabilitation before harsher disciplinary action
  • Whether the company clearly made employees aware of the program and disciplinary consequences
  • If the company is taking steps to reduce the consequences of errors in the results, for example allowing employees to defend themselves and retesting samples that may have returned false positives.
  • Providing an additional reason before conducting a random test, such as a concern for safety or security

Determining what is Reasonable

There are two elements to consider when determining whether a drug test is reasonable: 1) how intrusive the search and seizure is, and 2) the public interests that the test is designed to protect. A search of an airline pilot that is being conducted for public safety reasons will generally be thought to be more reasonable than randomly searching a locker in an office.

It is also more reasonable to allow employees to provide their samples without being observed. This is a less intrusive method, but it is also viewed as being less effective. Greater accuracy could be obtained if the collection of the urine sample was observed as this would prevent the sample from being tampered with. However, because this is more intrusive it is also considered less reasonable. Of course, the standards of reasonableness shift when there is a stronger suspicion of actual drug use.

Standards of Reasonable Suspicion

Your employer may have a reasonable suspicion that you have been taking drugs based on several factors including frequent absences from work, lateness, slurred speech, accidents and leaving early. Forming a reasonable suspicion about drug use always involves some degree of personal judgment, so it's impossible to list each situation where reasonable suspicion may arise.

Reduction in Privacy Expectations

Whether or not a search is considered to be reasonable will depend largely on the particular context. Part of what makes up the context is what is required in performing a job, and whether intoxication could pose a danger to public safety.

The privacy expectations of some types of State employees have been lowered due to the particular characteristics of their employment. For example, when a person gets a job as a firefighter or police officer there is a certain expectation that the officers responsible for enforcing laws have an increased obligation to obey it. This may mean that police officers have less Constitutional rights when compared to other workers. However, even given the reduced protection afforded to these special classes of employees, the standard of reasonable suspicion must still be satisfied before they can be tested. This was confirmed in the case of McDonnell v Hunter. In this case, inferences based on observable facts created a reasonable suspicion that a certain employee was taking drugs regularly. This then meant that it was permissible for the cars of certain guards to be searched.

In Capua v Plainfield official were informed that several of the police and firefighters employed by the city of Plainfield were taking illegal drugs. This triggered an investigation and a surprise drug test for each of the 244 employees of both the fire and police departments. Of these tests, there were 20 positive results for either marijuana or cocaine. These employees were presented with the choice of either suspension or resignation. Sixteen of the affected firefighters appealed to the Federal Court. The District Court Judge H. Lee Sarokin stated that the mass urine testing was a violation of the Constitutional requirement that search and seizure be reasonable. Judge Sarokin said: "The threat posed by widespread use is real. The need to combat it is manifest. But it is important not to permit fear and panic to overcome our fundamental principles and protections."

The Plainfield case also held that the suspected employees could have been tested using an "individualized reasonable suspicion" and this would have been valid according to the Fourth Amendment. This basically means that the main problem in this case was the fact that Plainfield city conducting a surprise mass screening not directed towards the suspected individuals.

In the case of Amalgamated Transit Employee v Suscy an employee of the Transit Authority was suspected to be under the influence of drugs by two of his supervisors. As a result of this suspicion, he had to undergo a drug test. The Court held that conducting blood and urine drug tests on this employee (a bus driver) was allowed according to the Fourth Amendment because of the public protection element. This confirmed the notion that employees can be drug tested by their employers if there is an issue of public safety involved.

Two other cases involved arguing that having "particularized suspicion" was required in order for an employee to be drug tested. These cases were Skinner v Railway Labor Executives Association and National Treasury Employees Union v United States Customs Service. In these cases, the Supreme Court disagreed with this argument and held that drug testing was permissible even if there is no particularized suspicion about a specific employee's drug use.

In Skinner v Railway Labor Executives Association which took place in 1989, Supreme Court Justice Anthony Kennedy wrote the majority judgment. In this he said that, although drug tests were considered to be "searches" under the terms of the Fourth Amendment, conducting such as search is reasonable when there is a "compelling" public safety interest. In these situations it is acceptable that the privacy interests of the employees (in this case, railway workers) are "diminished". Justice Kennedy said: "The expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to insure safety." The following case of National Treasury Employees Union v United States Customs Service expanded on this judgment by holding that Customs employees carrying firearms and a connection to drugs are also subject to a "diminished expectation of privacy".

Privacy for Giving Samples

The suggestion has been made that the process of drug testing is not as intrusive provided that the subject is able to give the sample in private as this doesn't involve observation of the subject urinating. However, if the urination is unsupervised it increases the possibility that the sample could be tampered with or a substitution could be made for a "clean" sample from someone else.

There are other ways that the integrity of the sample can be assured that don't involve supervision. According to the terms of the Federal testing program, the urination can be supervised if "the agency has reason to believe that [you] may alter or substitute the specimen to be provided". When it comes to the Fourth Amendment, having a program with low standards of intrusiveness and effectiveness causes as many problems as programs that are more intrusive and effective.

In the case of US v Davies the court stated: "If a blanket search program has little or no effectiveness, it is in substance merely a kind of harassment, a show of power, or a �fishing expedition', and therefore, per se, unreasonable under the Fourth Amendment".

For cause

The reasonableness of conducting a drug test in the workplace is increased if the employer can show that it is being done "for cause". This means that the testing is the result of a reasonable suspicion that a particular employee is taking drugs. The reasonable suspicion is based on observable facts and inferences that have been drawn from the situation which point to drug use. The reliability of the decision that reasonable suspicion does exist will depend greatly on whether or not staff members have been trained to recognize signs that indicate a person is abusing drugs or alcohol. If staff have been trained in this way, their opinion is more likely to be accepted by a Court arbitrator.

Formulating an abstract definition of "reasonable suspicion" or "probably cause" is impossible. Probable cause has a higher standard than reasonable suspicion. However, reasonable suspicion must also be based upon real facts and inferences that have been rationally drawn from experiences. They cannot be derived from mere suspicions. They must also relate to a specific person in order for the tests to be valid.

When a company has a "for cause" testing policy, it means that they are entitled to request a urine sample if they have a reasonable suspicion that a specific employee is taking drugs. Reasonable suspicion requires real facts and rational inferences based on experiences at work that indicate the employee is using drugs. Such facts and inferences could include an accident, lateness, absences from work, slurred speech or leaving work early. Because forming a reasonable suspicion involves making a judgment call, there is a wide variety of situations in which this may arise.

The concept of probable cause has arisen in several notable Court cases. One of these is McDonnell v Hunter which was heard before the 8th Circuit Court. The court held that it was unconstitutional for the Iowa Department of Corrections to routinely search the bodies and vehicles of prison guards according to the Fourth Amendment. The Court ruled that the department change their search procedures to take account of probable cause.

Compelling Interest

  • Whether or not a search (which includes a drug test) will be considered reasonable depends upon the balance between the subject's right to privacy and the reason why the government wants to conduct the search. In the case of National Treasury Employees Union v United States Customs Service the court outlined possible government interests that could justify a search. These were:
  • "ensuring that front line drug interdiction personnel are physically fit, and have unimpeachable integrity and judgment"
  • that there are "effective measures to prevent the promotion of drug users to positions that require the incumbent to carry a firearm"
  • "protecting truly sensitive information from those who, under compulsion of circumstances or for other reasons, might compromise information".

In making this judgment, the court balanced these governmental interests against the intrusion into individual privacy that occurs in urine drug testing. They found that, while requesting a urine sample may interfere with the right to privacy, in certain situations (such as when employees were involved in drug interdiction or required to carry weapons) this was justified.

In the case of Skinner v Railway Labor Executives Associations the Court held that the government had an interest in protecting the safety of the railroads and this was "compelling" enough to justify drug testing of employees. Drug testing in this situation was "not an undue infringement on the justifiable expectations of privacy of covered employees." The decision of the Supreme Court in National Treasury Employees Union v United States Customs Service is slightly ambiguous, but it does suggest quite firmly that protecting "sensitive information" on matters of drug enforcement and national security would also be considered compelling interests. This has fuelled speculation that the concept of compelling interests may be extended to also cover information that is commercially sensitive. If this is confirmed in future cases, then it will obviously have the effect of widening the ambit of employees that are subject to drug testing.

Protections in the Federal Constitution

Protections contained in the Federal Constitution will generally only be applied if the action that is being challenged has been taken by a government official. It would not apply, for example, to the actions of private individuals, companies or organizations. In reality, employers regularly use the requirement that action be taken in the State realm as a defense when their drug testing policies are challenged on Constitutional grounds. A Constitutional challenge is valid if the employer uses a government official, such as the police, in conducting the search and the subject argues that the employer was acting in the capacity as the States "agent".