Steve G.

Ninth Circuit finds pre-employment drug testing unconstitutional

In Activism, Civil Liberties, Constitutional Rights, Courts and Justice System, Drug War, Law, Libertarian, Protest on March 22, 2008 at 3:39 am

ConstitutionPre-employment drug testing has become commonplace. As a result, many job seekers are forced to undergo pre-employment drug testing for even the most mundane and poorly paid positions, such as service positions in grocery stores, convenience store, and the like. Yet, there can be no valid concern that an inebriated store clerk or bag boy poses a real danger to the public safety

However, increasingly, the appellate courts are determining that drug testing as a condition of employment violates the Fourth Amendment right to be free from unreasonable search and seizure, except under certain circumstances. The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The most recent case involves a job seeker who was offered a job as a library page, but refused to submit to the pre-employment drug test and as a result of that refusal, the offer was withdrawn. The court in that case, Lanier v Woodburn (9th Circuit) found that the requirement violated the job seeker’s Fourth Amendment rights, since it cannot reasonably be argued that the position is safety sensitive, and noted:

Jobs are considered safety-sensitive if they involve work that may pose a great danger to the public, such as the operation of railway cars, Ry. Labor, 489 U.S. at 628-29; the armed interdiction of illegal drugs, Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 677-78 (1989); work in a nuclear power facility, IBEW, Local 1245 v. United States NRC, 966 F.2d 521, 525-26 (9th Cir. 1992); work involving matters of national security, AFGE Local 1533 v. Cheney, 944 F.2d 503, 506 (9th Cir. 1991); work involving the operation of natural gas and liquified natural gas pipelines, IBEW, Local 1245 v. Skinner, 913 F.2d 1454, 1461-63 (9th Cir. 1990); work in the aviation industry, Bluestein v. Skinner, 908 F.2d 451, 456 (9th Cir.1990); and work involving the operation of dangerous instrumentalities, such as trucks that weigh more than 26,000 pounds, that are used to transport hazardous materials, or that carry more than fourteen passengers at a time, Int’l Bhd. of Teamsters, 932 F.2d at 1295.

Other positions for which the court cited drug testing as reasonable included teachers, and similar positions wherein the employee would work with children in a capacity which would require they act in loco parentis. In general, the courts have determined that suspicionless drug testing can only be done in light of a special need, and not simply by virtue of drug abuse being a general societal problem, which is the reason given by most employers.

The tide of the court decisions regarding pre-employment drug testing appears to be turning toward protecting the applicant from an invasive search, except when the employer can show a special need for such testing.

While it is not yet generally accepted that pre-employment drug testing is, in and of itself, a violation of the right against unreasonable search and seizure, the courts are increasingly determining much of the pre-employment drug testing we see today to be unconstitutional. Unfortunately, as with most challenges of a constitutional nature, the change will not take place overnight, but rather one case at a time, until either laws are passed against the practice, or until employers realize that a challenge to that practice would prove far too costly to render unnecessary drug testing practicable in the long run.

Hopefully there will soon be a more complete understanding that, minus the ability to demonstrate a legitimate need, pre-employment drug testing is a clear violation of the Fourth Amendment, and thus unconstitutional in most cases.

A libertarian, unless they are in a position where public safety is a concern, should always refuse to undergo pre-employment drug testing, even when they are not drug users and thus sure to pass. It is only when employers begin to realize that the most valuable potential employees are refusing to undergo such testing upon constitutional grounds, will they begin to rethink whether it is profitable to their bottom line to continue this ludicrous practice.

  1. pass my drug test…

    That\’s a really interesting article….

  2. In this country we are supposed to be innocent until proven guilty. Pre-employment drug testing makes us guilty until proven innocent.

  3. I agree that pre-employment drug testing is, in most cases, a “ludicrous practice.” Nevertheless, it seems to me that the consistently libertarian position on the subject is:

    (A) Private employers may test their employees and wannabe employees if they so choose, and may fire said employees for whatever ludicrous reasons they so choose, and

    (B) Governments may not enforce any drug laws whatsoever.

    I cannot believe for a second that private pre-employment drug testing in any way violates the fourth amendment—that is, unless the would-be employer is actively invading your property without your express consent.

    Alex Peak

  4. I am surprised that a lot of companies I have worked for never drug tested any employees. One company I still currently work for has random drug testing for current employees. A computer randomly selects a few employees a day to do drug testing but there is no pre-employment drug tests. I think for some positions in companies it is necessary to have pre-employment drug testing. I think it is a good investment to use a PEO. They take care of all employee testing and the company just waits for the results and makes further decisions on hiring. It would be easier to use the outside company, especially for drug testing because if the job seeker fails, the company will receive those results before even making a further step.

  5. Screening is a violation of my privacy – no if’s and’s or but’s! I have a medical condition which could easily show up in a random screen. My medical history is my business and not any one else’s.
    I am unemployed after 13 yrs with the same job. That alone should tell anyone thinking of hiring me that I am reliable and not someone to worry about. I have refused 2 tests and have been turned down as a result. Guess what? I don’t care. I am tired of this Countries politicians monitoring me. Yes, this is a way of monitoring people.
    They don’t want to hire me, then that’s how it shall be. Why don’t they screen for alcohol? I can’t stand drunks, but it is their right to drink as long as they’re of legal age.


  6. drug tests use body fluids to force a person to testify against themselves. even in a murder case, a defendant CANNOT be forced to testify against themselves

  7. The absurd situation has turned


  9. tested today. If you read the release forms refusing your test automaticly disqualifies you and yes they can give that information to its affiliates that definately makes me feel like my privacy is. Violated. Why go back 6 months or longer into my past. Accusations of drug use with absolutely no evidence and I’m made to provide burden of proof that I’m innocent. That is the definition of unconstitutional as I understand the law.. something has to change!!! This country has cancer!!!

  10. This is one of the most stupid articles on the subject I have ever read. Businesses who drug test potential employees for even non critical safety positions do so not as a way to invade anyone’s privacy. They could care less what you do on your own time. Businesses perform pre-employment drug testing for one reason–Worker’s Comp Insurance. I am on the Worker’s Comp committee at the company at which I work. We recently had to renew our Worker’s Comp policy. ON the application, the first question is always the same: Do you have a pre-employment drug testing program in place and do you perform post accident drug tests?

    If you check ‘NO’ the premium automatically increase 4-6 fold, if the insurer will still offer you a policy. Our current yearly premium for our roughly 220 employees? About 1.2 million for the year. IF we didn’t have a drug test policy in place: about $6 million per year in annual premiums. A price tag like that would kill us.

  11. I would think that the libertarian position would be that such a test is not a nice thing to do, but that an employer doesn’t have to hire anyone who will not agree to its demands, however unreasonable.

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