“In the absence of any suspicion at all, such a personal and abusive use of the government’s power to conduct drug- testing so obviously violates Fourth Amendment...”
admission that she frequently ordered drug tests based only on “a hunch.” Te federal court found that the plain-
tiff’s allegation provided a sufficient factual basis to support a Fourth Amendment claim for damages against the director. In rejecting the director’s qualified immunity defense, the court stated:
In the absence of any suspicion at all, such a personal and abusive use of the govern- ment’s power to conduct drug-testing so obviously violates Fourth Amendment rights that no case law stating this proposi- tion was necessary to have put [the direc- tor] on notice of its unconstitutionality.
An arbitrator’s decision in U.S. Enrichment
Corp., 123 L.A. 44 (Arb. Cohen, 2006) con- cerned testing prompted by the discovery of a case containing methamphetamine and re- lated paraphernalia at an enriched uranium facility. In response, the employer initiated testing of all 23 employees who had been in the vicinity over a 14-hour period, while exempting contractors from the testing requirement. Te grievant’s urine specimen tested positive for methamphetamine. Notwithstanding the grievant’s posi-
tive test result, the arbitrator reinstated the grievant with full back pay and seniority on the grounds that the employer did not have reasonable cause to subject the grievant to a test. Te arbitrator found that the employer’s “dragnet” approach effectively constituted an unauthorized random testing process and that, therefore, the results were “inadmissible.” A similar result obtained in Caesar’s Palace,
130 L.A. 373 (Arb. Staudohar, 2011), where the grievant was reinstated with full back pay notwithstanding alcohol breath and blood tests confirming that she was in violation of the em-
ployer’s substance abuse policy. Te arbitrator found that reinstatement was warranted due to the absence of the “reasonable cause” necessary to justify the initiation of the test. DOT agency requirements specifically
mandate that transportation industry employers provide supervisors who are au- thorized to initiate reasonable cause testing with documented training with respect to the detection of behavioral cues indicating substance abuse. We recommend that even unregulated employers implement such training in order to reduce their exposure to claims of abusive testing. ❚
Endnote 1
Caution: a unionized employer may still have an obligation to negotiate over related issues such as discipline, the availability of rehabilitation, or pay for time spent in the testing process. Moreover, to the extent that an employer exceeds the requirements of DOT-mandated testing—for example, by testing for additional drugs— such additional testing may be deemed a mandatory subject of bargaining by the NLRB.
Lee Seham is the President and General Counsel of American Maritime Safety, Inc. and partner in the law firm of Seham, Seham, Meltz & Petersen, LLP. Mr. Seham
graduated Magna Cum Laude and Phi Beta Kappa from Amherst College and received his law degree from New York University School of Law, where he served on the NYU Law Review. In addition to his work for AMS, Inc., Mr. Seham has negotiated drug and alcohol related agreements and protocols for a wide range of clients engaged in the airline, maritime and sports industries, including: Norwegian Cruise Lines, Air Portugal, the Al- lied Pilots Association, the Aircraft Mechan- ics Fraternal Association and both the NBA and MLS Referees.
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datia focus
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