BY TOMMY EDEN, CONSTANGY, BROOKS, SMITH & PROPHETE, LLP
After studying hundreds of drug testing cases, you begin to look at every case as a learning event. Out of each learning event, or litigation landmine, common sense counsel can be gleaned with the objective of helping readers recognize their fact situation as a potential landmine and then teaching how to avoid or defuse it. Here are five stories all involving a public employer where things went wrong, and common sense counsel that could well have changed the end of the story.
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classification/duties involved, or distinguishing between jobs that are safety- sensitive versus those that are not. Without identifying a connection between the jobs and the need for testing, the city cannot meet its burden of showing a “"special need” nor prove governmental interests sufficient to justify drug testing of all of its prospective employees.” Tis case is Baron v. City of Hollywood.
LANDMINE #1: Steps to Avoid or Defuse: • Define safety sensitive in policy • Evaluate job classifications based on the safety-sensitive definition
• List covered job classifications in policy • Notify employees by inclusion of “safety sensitive” in job descriptions
LANDMINE #2: Drug Test Refusal Done Wrong Te Facts: Jwaun Ward, a black male employee of Decatur Utilities, was randomly selected, along with five other employees, to take a drug test. On the morning of his selection, Ward was instructed by his supervisor, in the presence of other employees, to drive to the front office and to "go pee in a cup in front of the work group." Ward testified that he felt "humiliated, embarrassed, and belitled," according to his lawsuit. Ward also gave deposition testimony that the same supervisor had said that he was going to make Ward take "four or five" more drug tests before the end of the year in an effort to "kill him with the drug test." Rather than oblige his supervisor, Ward
went to the superintendent’s office and said that he was going home, explaining that he was "not going to entertain his supervisor's request because of the way he asked." Ward offered to take a drug test at that time to which the human resources director did not respond. He then leſt the premises. Ward was later informed, via telephone, that he would be required to complete a drug
awareness program in order to retain his employment, to which he refused. Five days later, Ward’s employment with the company was terminated. Te HR manager later gave deposition testimony that if Ward had taken a later drug test and met with a substance abuse counselor, he would not have been fired. On December 15, 2014, a federal
district judge in Alabama granted summary judgment to the Utility on Ward’s race discrimination claim but found creditable evidence that Ward may have been retaliated against since he offered to take a later drug test but was not allowed to do so. Te case is Ward v. Municipal Utilities Board of Decatur, AL.
LANDMINE #2: Steps to Avoid or Defuse: • Consistently following a well-draſted DOT compliant public entity drug testing policy is absolutely critical.
• A “refusal” under DOT regulations cannot be remedied by a later offer to be tested by the employee, but make sure you have documentation to prove a refusal.
• Seeking wise counsel when faced with a difficult dilemma is good risk reduction.
LANDMINE #3:
When Suspicions Are Not Reasonable Te Facts: Micheal Hudson, a multimedia specialist for the City of Riviera Beach, FL, was ordered by Doretha Perry (the human resources director), to take a reasonable suspicion drug test. When Hudson later revoked the city's access to his drug test results, he was fired for a refusal. Hudson then filed a lawsuit in federal court
alleging that Perry violated his rights under the 4th Amendment to the U.S. Constitution by ordering him to submit to the drug tests or risk termination because of alleged bad blood between Hudson and Perry's son Troy, who also worked for the City. Hudson's direct supervisor did not request that Hudson be tested or suspect Hudson of drug use.
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