A. Court Cases Affecting Privacy of Employees and Drug Testing in the Workplace
1. Supreme Court cases affirming drug testing
a. Skinner v. Railway Labor Executives Association 109 S.Ct
b. National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384 (1989)
2. Other lower court and State court rulings
a. Kraslawsky v. Upper Deck 56 Cal.App.4th 179, 66 Cal Rptr.2d.297(CA 4, 1997)
b. Pettus v. DuPont, 49 Cal.App.4th402, 57 Cal.Rptr.2d 46 (1997)
3. Supreme Court cases dealing with Privacy in general
a. Griswold v. Connecticut381 U.S. 479, dealing with individual rights to privacy
B. How Do You Define Drugs?
1. Just Illegal Drugs on the Street?
2. Alcohol can be abused to?
C. What is Reasonable Suspicion?
1. Who should be the one to decide this?
a. What should the criteria be?
2. Should we only test the most critical jobs that are for the safety of the public good?
D. Lab Testing
1. Is it accurate and can the employer rely on the outcome?
2. How much do you spend to make sure you get the right answers
E. Positive Test
1. How should the information be handled?
2. What should be done with the employee?
3. What about rehabilitation?
F. Who's Rights are We Infringing On
Privacy and drug testing have gone hand in hand since President George Bush instituted the Drug-Free Workplace Act in 1988. This act only affected federal workers and was only to be used in certain circumstances, so as to not impact the privacy of the federal employees, but to make sure that the federal workplace was a safe place to work in. This was actually the start of pre-employment drug testing and the on going testing of those who had returned from a rehabilitation programs for drug and alcohol abuse previously. All federal agencies instituted drug-testing programs at this time to protect the safety and security of government employees and the public.
The act provided that programs had to be legal and be communicated to the employee. Discipline was left up to the employer's discretion. If the employee was found guilty of criminal sanctions, the employer must administer some type of employment sanctions towards the individual also. Most of the programs were and are focused on rehabilitation and recycling of the employee back into the work environment. Privacy was extremely important with this act. It was important that the employer only used drug testing for pre-employment and not as an on going harassment of the employees if they were not found to be abusers.
A number of legal definitions of privacy really have come about due to the 1890 Harvard Law Review article "Right to Privacy", written by Samuel Warren and Louis Brandeis. They felt that it is the right of the individual was "to be let alone" and that the press or anyone else should not infringe upon his/her privacy. In conjunction with the Law Review, the case of Griswold v. Connecticut (381 U.S. 479) also addressed privacy. Justice...