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Thursday, May 15, 2014

Public Employee Drug Testing Lessons

Micheal Hudson, a multi-media specialist for the City of Riviera Beach, FL was ordered by Human Resources Director Doretha Perry to take a reasonable suspicion drug test. When Hudson later revoked the city's access to the results of his hair sample drug test, he was fired for refusal to take the test.  

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 and his supervisor did not request that Hudson be tested or suspect Hudson of drug use. Hudson had consistently received "excellent" evaluations and had never been reprimanded or disciplined in his four years of employment with the City, and Hudson did not work in a safety-sensitive position or perform safety-sensitive functions, according to the allegations of his complaint  

After reluctantly taking a Breathalyzer test (negative), a urine test (negative), and a hair-sample test, Hudson asked Perry what the reasonable suspicion was for the testing and requested that Perry provide him with any records supporting reasonable suspicion. According to Hudson’s complaint, Perry became infuriated and retorted, "It does not work like that[.] [T]here are no records[.] I don't have to give you copies of anything." When Hudson responded by showing Perry the Florida Drug Free Work Place Act, Perry allegedly taunted him, asking what he was going to do.  

Perry later provided Hudson with a one-paragraph explanation for why she ordered the drug testing stating that she had "received several complaints from employees alleging [Hudson's] eyes were glassy and he smelled like marijuana,according to allegations in the complaint. It did not identify which employees had allegedly complained about Hudson, and Perry later stated that she could not recall who had complained and could not even remember the gender of the allegedly complaining person or persons. Perry never informed Hudson's immediate supervisor that she had received complaints about Hudson and during a later unemployment hearing Perry contradicted herself saying that she had tested Hudson "on a whim[,] a mere hunch," and that she had been determining who to drug test in that manner "for years."  

Last week Judge Rosenbaum of the U.S. District Court for the Southern District of Florida ruled that Perry's drug test directive wasn't supported by individualized suspicion under the Fourth Amendment to the U.S. Constitution. Judge Rosenbaum held that “With respect to drug-testing of public employees, the Supreme Court has authorized random, suspicionless searches only where the nature of the individual's employment implicated public safety,” The judge continued that this was not the case in regards to Hudson. “This is in no way related to any public-safety measure or other recognized government interest supporting a suspicionless search … 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 rights that no case law stating this proposition was necessary.” Case is Hudson v. City of Riviera, FL Click here for full text of opinion.
Common Sense Counsel: Opportunities to learn from other's mistakes is always the best way to read these cases. Public employee drug and alcohol testing is walking the 4th Amendment tightrope of a legally permissible search balanced again public and employee safety and other safety sensitive issues. Using these 5 counterweights will help keep you balanced: 1) have your policy and essential forms updated to meet 4th Amendment standards as federal regulations, best practices, state laws and cases are constantly changing; 2) make sure all supervisors have been trained on reasonable suspicion within the last 12 months with a test and sign off; 3conduct employee awareness training on your updated policy; 4) adopt a pre-duty impairing effects disclosure safety policy; and 5) know who you are going to call when you start to lose your balance so you will not be the next lesson I write about.  

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901.