CPOA Magazine Article- Drug Testing of All Applicants for Municipal Employment is Unconstitutional

“Drug Testing of All Applicants for Municipal Employment is Unconstitutional”

May, 2008

By Martin J. Mayer, Esq.
Christopher F. Neumeyer

As a result of a United States Court of Appeals decision, Lanier v. City of Woodburn (2008) 518 F. 3d 1147, cities and counties may no longer require all new candidates for employment to submit to drug testing, as part of a conditional offer of employment.  The current policy of many California cities and counties, to drug test all applicants, regardless of the position being sought, has been declared unconstitutional by the Ninth Circuit U.S. Court of Appeals.  The Court ruled that such a policy is unconstitutional “if uniformly applied to all such candidates.  Such a policy constitutes unwarranted suspicionless searches.”

This decision will potentially have a significant impact on public sector employers in California.  Pre-employment drug testing, which has been permitted under California law for all new public sector employees, must now be based on an individualized suspicion, or because the position being sought warrants generalized drug testing due to its being “safety sensitive,” or because of “special needs.”

In February of 2004, Lanier applied to be a page at Woodburn’s public library. Pages perform tasks such as retrieving books from the book drop and returning them to the shelves. Occasionally, they may staff the desk in the youth services area, where materials for children and teenagers are housed. Woodburn gave Lanier a conditional offer of employment, subject to successful completion of a background check and pre-employment drug and alcohol screening.
The policy was adopted, according to the City, “because some department heads, based on their experience with employees who had been under the influence at work, believed that the use of drugs or alcohol had a negative impact on job performance and thought that all prospective employees should be subject to screening to deter such use.  In addition, the Policy and Procedure’s Manual provides for an “extensive” pre-employment investigation of an applicant’s employment and criminal history for positions identified as “security sensitive,” which include “[a]ny position that is responsible for the supervision or control of juveniles (all positions in the Recreation and Parks Department Pool and Recreation Divisions and in the Library).”
Lanier wanted to accept the page position, but declined to be tested and Woodburn rescinded the offer. Lanier then brought this action, alleging violation of her rights under the Fourth Amendment to the United States Constitution and under Article I, Section 9 of the Oregon Constitution.


 Lanier Decision Impacts on the California Supreme Court’s 1997 Loder Decision

The Lanier decision, which is binding on our state courts, conflicts substantially with the California Supreme Court decision in Loder v. Glendale (1997), 14 Cal. 4th 846.  In Loder,the Court ruled that uniform pre-employment drug testing, conditional to a job offer, was constitutional.   Among other things, the Court stated that the prospective employer knows little of the applicant and has a right to maintain a drug free environment and, therefore, the pre-employment drug test was justified.

When a federal circuit court of appeals rules definitively on a federal issue, a state supreme court, which is within the federal court’s jurisdiction, is bound by the decision.  Although theLanier court did not explicitly overturn the Loder decision, if a litigant in California brings a lawsuit against a city citing the federal ruling in Lanier, our state courts will be bound by theLanier decision.

Basis of the Lanier Decision

The Lanier court stated that, “(t)here is no question that Woodburn’s drug screening policy effects a search within the meaning of the Fourth Amendment….  Accordingly, we must determine whether, as a matter of law, the policy ‘fit[s] within the closely guarded category of constitutionally permissible suspicionless searches’.”  As such, a city must now articulate why there is the need to drug test candidates for employment.

Lanier is based, to a large degree, on the 1997 United States Supreme Court decision,Chandler v. Miller, 520 U.S. 305 .  The Lanier court stated that, “Chandler makes clear that the need for suspicionless testing must be far more specific and substantial than the generalized existence of a societal problem of the sort that Woodburn has posited.  InChandler, the State of Georgia sought to subject candidates for public office to suspicionless testing to show its commitment to the war against drugs. Like Woodburn, Georgia asserted no evidence of a drug problem among the targeted population, and the officials who were required to pass a drug test were neither involved in interdiction, nor did they typically perform ‘high-risk, safety-sensitive tasks’.”

If the 9th Circuit is correct in its application of Chandler, then Lanier is unlikely to be overturned on appeal unless there is a break with the U.S. Supreme Court decision inChandler.

               Compliance with Lanier Means that Pre-employment
Drug Tests Must Be Justified

Prudent compliance with Lanier suggests an immediate cessation of drug testing for all positions, except for those which the courts have already declared to be safety sensitive or which have a special need for drug testing.   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 Raba, 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 liquefied 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.

The other justification for drug testing is the special needs of particular positions, which probably includes positions such as public school teachers or workers in a child care center. Woodburn argued that it had a substantial and important interest in screening library pages for three reasons: “drug abuse is one of the most serious problems confronting society today; drug use has an adverse impact on job performance; and children must be protected from those who use drugs or could influence children to use them.” The Court noted that there was “no doubt these problems are worthy of concern but there was scant, if any, indication that, on account of them, the City has “special needs” of sufficient weight to justify an exception to the Fourth Amendment’s requirement of individualized suspicion.”

The Ninth Circuit concluded, “Woodburn submits that all library positions are “safety sensitive” because Appendix B to its Policy and Procedures Manual says so. However, the Manual does not define “safety-sensitive,” nor is there any evidence that, regardless of how conceived, a page position is safety-sensitive. As we have explained, it does not appear to be in the same sense that, for instance, a teaching position was thought to be safety-sensitive in Knox County.” [See Knox County Educ. Ass’n v. Knox County Bd. of Educ., 158 F.3d 361(1998)]

For positions which do not fall into one of the already established categories above, a city or county realistically has two options: 1) put a moratorium on testing for those positions, or 2) update the relevant written manuals to explain why testing for such positions are justified in accordance with the Lanier decision. Whether or not a city chooses to articulate why drug testing is warranted for certain positions, drug testing for those positions which are clearly outside the boundaries of Lanier should cease.  As in all situations where legal issues arise, it is imperative that legal counsel be consulted before decisions regarding the Lanier case are implemented.

Martin J. Mayer, a name partner with the firm of Jones & Mayer, has served as General Counsel to California Peace Officers’ Association for approximately twenty-five (25) years.  Christopher F. Neumeyer is a law clerk with Jones & Mayer.  The firm is located in Fullerton, California and is a public sector law firm which focuses its attention on representing the interests of law enforcement in cities and counties throughout the State of California.