PUBLIC EMPLOYERS

Public employer drug-testing program invalidated

We often are asked whether there are any differences between public- and private-sector employment. The North Carolina Court of Appeals recently heard a case addressing a public employer's right to conduct random drug and alcohol tests on its employees. The court's decision provides some interesting insight and a good discussion of the unique differences between the rights and responsibilities of employers and employees in public and private employment settings.

Background

In 2006, the Graham County Board of Education employed approximately 250 teachers, staff, and administrators to serve roughly 1,300 students in three public schools. Employees were subject to the board's alcohol/drug-free workplace policy that required all job applicants to pass "an alcohol or drug test" as a condition of employment. It also required employees to submit to a drug test when a supervisor had reasonable cause to believe a worker was using alcohol or illegal drugs or abusing prescription drugs in the workplace. Further, employees who drove school system vehicles were required to submit to random drug tests.

On December 5, 2006, the board enacted a new testing policy requiring all employees to submit to drug or alcohol testing, including random suspicionless testing. On April 20, 2007, Susan Jones, a teacher at the county's high school and a member of the North Carolina Association of Educators, filed a lawsuit seeking to have the new drug-testing policy declared a violation of the North Carolina Constitution.

Article 1, Section 20, of the North Carolina Constitution provides: "General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted."

In essence, the provision is similar to the U.S. Constitution's prohibition against unreasonable searches and seizures. Since a drug test by a public employer is a governmental search, drug-testing policies are subject to the requirements of both the state and federal constitutions.

The reasonableness of a governmental search is generally determined by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests. Typically, some degree of individualized suspicion is required under a constitutional search and seizure. However, a suspicionless search, such as a random drug test, may be reasonable under the constitution when special needs justify it. In determining whether a suspicionless drug test is permitted, courts balance the intrusiveness of the proposed testing procedure, the expectation of privacy that the employee has, and the governmental interest at stake.

Court of appeals weighs in

In this case, the North Carolina Court of Appeals found that the policy was extremely intrusive because it wasn't specifically limited to urine testing. Instead, it could conceivably include blood, breath, saliva, hair, tissue, and other specimens of the human body for the purpose of detecting drugs or alcohol.

The court also found that public employees may have reduced expectations of privacy if their employment carries safety concerns for which the employees are heavily regulated. For example, chemical weapons plant employees are heavily regulated for safety and have a lower expectation of privacy when it comes to drug testing. However, the court found no evidence that any board employees were regulated for safety.

Finally, there was no evidence that the policy was needed to achieve the board's goal of maintaining a drug-free workplace. The board was forced to acknowledge that there was no evidence of any drug problem among its employees, nor was there evidence that any student or worker had ever been harmed because of an employee working under the influence of drugs or alcohol.

While the court stated that the board didn't have to wait for a student or employee to be harmed, there had to be a concrete problem that the policy was designed to prevent. The need to promote an antidrug message is merely "symbolic" and not concrete enough. After balancing all the circumstances, the court concluded that the employees' privacy interests outweighed the board's interest in conducting random suspicionless testing and that the policy violated the North Carolina Constitution.

What this means for you

If you're a private-sector employer, this decision doesn't apply to you. However, if you're a public-sector employer that conducts drug testing, you should carefully review this decision and the reasons the board's policy was invalidated. To have an enforceable drug-testing policy, you must balance the employees' privacy interests with the interests of the government in conducting drug testing. Random intrusive testing can be unconstitutional unless a compelling governmental need is shown. In this case, the board was unable to produce evidence that an intrusive testing policy was necessary.

Copyright 2009 M. Lee Smith Publishers LLC

NORTH CAROLINA EMPLOYMENT LAW LETTER is intended as a report on topics of interest in labor and employment law. It is not intended as legal advice. Readers with legal questions or problems should consult legal counsel and should not rely upon this publication without advice of counsel.