Employee
Privacy
in the Public
Sector
IMLA Employment Law Program
November 9-11, 2008
Dallas, Texas
Melinda H. Barlow
Assistant City Attorney
Arlington, Texas
Drug Testing of Public Employees
Fourth Amendment
of the U.S.
Constitution:
Unreasonable
Search and
Seizure?
Permissible Drug Testing of Public Employees
• Required by Federal Law
• Reasonable Suspicion
Testing
• Physical Exam
(as required by job)
• Special Needs Doctrine
Special Needs Doctrine:
“Where the Fourth Amendment intrusion serves
special governmental needs, beyond the normal
need for law enforcement, it is necessary to
balance the individual’s privacy expectations
against the government’s interests to determine
whether it is impractical to require a warrant or
some level of individualized suspicion in the
particular context.”
Nat’l Treasury Employees Union v. Von Raab,
489 U.S. 656 (1989)
Supreme Court Cases:
Nat’l Treasure Employee’s Union v. Von Raab,
489 U.S. 656 (1989)
Skinner v. Ry. Labor Executive’s Ass’n,
489 U.S. 602 (1989)
Chandler v. Miller,
520 U.S. 305 (1997)
Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646 (1995)
Factors Considered by the Supreme Court:
Safety Sensitive
• Highly regulated industry
• Discharge of duties fraught with risks of injury
to others such that even a momentary lapse
of attention can have disastrous
consequences
Expectation of Privacy
Particular problems of drug use within the
employee group
Deterring drug use of children
Other Courts’ Decisions finding a Position is
subject to drug testing:
Teachers and administrators seeking transfer or promotion
Operator of large trucks and equipment
Airline Industry
Access to NCIC police database
EPA workers who handle hazardous property
Janitors handling dangerous chemicals
Persons with access to classified information
Engineers in Nuclear Power Plant
Other Cases Wherein Drug Testing Struck
Down:
Purely administrative positions in jail
Elevator operators, masons, carpenters, plumbers,
sign painters
Post-injury testing of all
school employees
Random drug testing
of all students
Drug Testing Applicants v. Employees
Willner v. Thornburgh,
928 F. 2d 1185 (D.C. Cir. 1991):
Attorney applicant for DOJ
Lanier v. City of Woodburn,
518 F. 3d 1147 (9th Cir. 2008):
Library page
Factors to consider when contemplating whether drug
testing of a particular position would pass constitutional
muster:
•
Are the discharge of duties fraught with risks of injury to
others such that even a momentary lapse of attention
can have disastrous consequences?
•
Does the position involve the safety of children
entrusted in care of the employee?
•
Does the employee have influence over children as a
societal role model and contact with children as part of
their regular duties?
•
Is the employee’s profession highly regulated?
•
Is there evidence of any particular problems with use of
drugs with a particular group of employees?
Don’t Forget Individual Liability
Well-settled law?
Retaliatory Motive?
Conviction
and Arrest
Records
Convictions
The employer should consider the following three
factors in determining whether business necessity
justifies rejection of the candidate:
• The nature and gravity of the offense or
offenses;
• The time that has passed since the conviction
and/or completion of the sentence; and
• The nature of the job held or sought.
Arrest Records
An arrest without a conviction does not establish
that a person actually engaged in misconduct.
The arrest records must not only be related to the
job at issue, but the employer must also evaluate
whether the applicant/employee actually engaged
in the misconduct.
An employer can do this by giving the person the
opportunity to explain and by making follow-up
inquiries necessary to evaluate his/her credibility.
State Anti-discrimination Statutes:
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Conn. Gen. Stat. § 46a-80 (2001)
Haw. Rev. Stat. § 378.2.5 (1993 & Supp. 2000)
Wis. Stat. Ann. § 111.321 (West 1997 & Supp. 2001)
Cal. Lab. Code § 432.7 (West 1989 & Supp. 2002)
775 Ill. Comp. Stat. Ann. § 5/2-103 (West 2001)
Mass. Gen. Laws Ann. ch. 151B, § 4(9) (West 1996 & Supp. 2002)
Mich. Comp. Laws § 37.2205a (2001)
R.I. Gen. Laws § 28-5-7(7) (2000)
Colo. Rev. Stat. § 24-5-101 (2001)
N.J. Stat. Ann. § 2A:168A-1 (West 1985 & Supp. 2001)
N.Y. Correct. Law §§ 752-54 (McKinney 1987 & Supp. 2001-2002)
N.Y. Crim. Proc. Law § 160.60 (McKinney 1992 & Supp. 2001-2002)
N.Y. Exec. Law §§ 296(15)-(16) (McKinney 2001)
R.I. Gen. Laws § 28-5-7(7) (2000)
Credit History
Fair Credit Reporting Act (FRCA)
The FCRA determines the circumstances
under which employers may request
consumer reports for prospective or active
employees. 15 USC § 1681, et. seq.
Potential for Disparate Impact Claims
Unbiased criterion as to which groups will
have pre- or post-employment credit checks
An employer may take action, up to and including
termination, when a credit check reveals what may
be considered “actionable information” if the
employer has taken the necessary steps required
by the FCRA. The steps required by the FCRA
include:
•
Employer must notify the employee about the
negative information and being reported prior
to taking action against the employee.
•
The employee has an opportunity to dispute
this information with the company providing the
report.
Questions for management:
• What negative credit information will be considered “actionable
information” and will this change on a case by case basis?
• Is there a reasonable link between the actionable information and
the employee’s continued fitness for their current position?
• What if the employee’s performance evaluations reveal that they are
effective or highly effective?
• How will you address long-term employees and others in protected
classes who may be disproportionately impacted by your decision to
act on negative credit information?
• What level of discipline is appropriate?
• Will you give the employee an opportunity to cure?
• Is negative credit “just cause” for disciplinary action?