California’s Employment and Urine Privacy

privacy

The growing acceptance of medical (and, to a lesser extent, of recreational) marijuana use state by state has added a few extra degrees to the temperature of the stove beneath a long-simmering issue in U.S. employer-employee relations: the conflict between employer-mandated drug tests on the one hand and the privacy interests of employees on the other.

As the website of the U.S. Department of Labor puts it, “most private employers have the right to test for a wide variety of substances.”

One much-publicized case litigated in California in the 1980s and well into the 1990s seemed promising for those who might want to change that, but 20 years after its resolution observers have to concede that its promise was never quite realized.

 

Athletes and Performance Enhancers

The case, known early on as LeVant v. Stanford arose not among employees but among student-athletes at Stanford University, athletes who objected to the tests they were required to take in order to compete in NCAA events. California’s constitution specifically protects a right to privacy, and the lower courts that first heard this case thought that this protection justifies injunctive orders against mandatory drug testing.

When the state Supreme Court finally heard the case (which by 1994 went by the name Hill v. NCAA), the NCAA argued that the privacy right in the state constitution did not apply because it was only intended to limit government actions, not to limit those of private-sector institutions. The Supreme Court rejected that argument unequivocally.

The court said that “common experience makes it only too evident that personal privacy is threatened by the information-gathering capabilities and activities not just of government, but of private business as well,” and that whatever may be the case of the “right to privacy” discussed in federal courts, in those of the state of California, “the power of both public and private institutions to collect and preserve data about individual citizens must be subject to constitutional control.”

So: the student-athletes (and by reasonable extension, employees in much the same situation) won … right?

Not so fast. The court also found that the privacy right constrains drug testing by private institutions, but it found that the right only requires that they be reasonable. Whether the NCAA and Stanford can take a particular action depends on how “objectively reasonable” is the expectation of privacy in the first place, how important are the interests that the defendants seek to protect by the testing in the second place, and whether there are other, less invasive, means for protecting those interests in the third place. After a discussion covered all of that, the court decided that the requirement that athletes urinate into a cup, and await chemical testing thereof, was reasonable and so could not be enjoined. The NCAA won.

Even so, one might ask: couldn’t athletes, and for that matter private-sector employees, still take something of value from this? Presumably in at least some cases they can argue that their urine’s chemistry is sufficiently private, and other interests are insufficiently urgent, so that the balance comes out the other way.

 

Since Legalizing Medicinal Marijuana

That seems an especially good question since, only two years after that Supreme Court decision, California legalized medicinal marijuana. Wouldn’t this strengthen the hand of an employee who may have marijuana in his system for a lawful reason, and who wants to argue that the balance of which the court in Hill wrote comes down on his side, against the side of the employer/tester?

Apparently not. Daniel Abrahamson, the Director of Legal Affairs of the Drug Policy Alliance, has devoted his professional life to rolling back the “war on drugs” on many fronts. I tried to test out a working hypothesis on him about how litigators might use the Hill decision in the new somewhat-legalized-marijuana context in California. He would have none of it.

The medical marijuana law in California “does not provide employees with any specific protections” against employer drug testing, he said.  And although employees have often sought to use other provisions of California’s law to shield themselves from such tests “by and large they have been unsuccessful.”

“But what about public employment?” I asked. Suppose a bureaucrat at the California Department of Motor Vehicles decides to test the clerical staff for marijuana use.

Abrahamson said that yes, public employees often have stronger protections than private sector employees, “if you’re a public employee, then infractions and discipline are likely covered by detailed regulations, and there will be a union willing to go to bat for you.”

Despite those general considerations, here too the medical marijuana law has not changed the situation with regard to drug testing.

I asked if legislative limits to drug testing might not be a logical next issue for activists to address. He said “absolutely this is a next issue to address,” but he seemed noticeably unenthusiastic about a legislative response.

He hopes and expects that over time potential employees will take note of the drug testing policies of potential employers, in making their own decisions as to where to apply for work. The competition for talents in many posts may then lead to “sensible policies being adopted on an employer by employer basis.”

This sounds like a counsel of patience. But then, all positive developments in the war against the war on drugs have been painstakingly slow.

Christopher C. Faille, a Jamesian pragmatist, was one of the first reporters taking the hedge fund industry as a full-time beat, at the turn of the millennium, with HedgeWorld. His latest book, Gambling with Borrowed Chips, treats of common misunderstandings of the crisis of 2007-08.

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