Employee Privacy in the Public Sector

1. Employee Privacy in the Public Sector IMLA Employment Law Program November 9-11, 2008 Dallas, Texas Melinda H. Barlow Assistant City Attorney Arlington, Texas

2. Drug Testing of Public Employees

3. Fourth Amendment of the U.S. Constitution: Unreasonable Search and Seizure?

4. Permissible Drug Testing of Public Employees • Required by Federal Law • Reasonable Suspicion Testing • Physical Exam (as required by job) • Special Needs Doctrine

5. Special Needs Doctrine: “Where the Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)

6. Supreme Court Cases: Nat’l Treasure Employee’s Union v. Von Raab, 489 U.S. 656 (1989) Skinner v. Ry. Labor Executive’s Ass’n, 489 U.S. 602 (1989) Chandler v. Miller, 520 U.S. 305 (1997) Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)

7. Factors Considered by the Supreme Court: Safety Sensitive • Highly regulated industry • Discharge of duties fraught with risks of injury to others such that even a momentary lapse of attention can have disastrous consequences Expectation of Privacy Particular problems of drug use within the employee group Deterring drug use of children

8. Other Courts’ Decisions finding a Position is subject to drug testing: Teachers and administrators seeking transfer or promotion Operator of large trucks and equipment Airline Industry Access to NCIC police database EPA workers who handle hazardous property Janitors handling dangerous chemicals Persons with access to classified information Engineers in Nuclear Power Plant

9. Other Cases Wherein Drug Testing Struck Down: Purely administrative positions in jail Elevator operators, masons, carpenters, plumbers, sign painters Post-injury testing of all school employees Random drug testing of all students

10. Drug Testing Applicants v. Employees Willner v. Thornburgh, 928 F. 2d 1185 (D.C. Cir. 1991): Attorney applicant for DOJ Lanier v. City of Woodburn, 518 F. 3d 1147 (9th Cir. 2008): Library page

11. Factors to consider when contemplating whether drug testing of a particular position would pass constitutional muster: • Are the discharge of duties fraught with risks of injury to others such that even a momentary lapse of attention can have disastrous consequences? • Does the position involve the safety of children entrusted in care of the employee? • Does the employee have influence over children as a societal role model and contact with children as part of their regular duties? • Is the employee’s profession highly regulated? • Is there evidence of any particular problems with use of drugs with a particular group of employees?

12. Don’t Forget Individual Liability Well-settled law? Retaliatory Motive?

13. Conviction and Arrest Records

14. Convictions The employer should consider the following three factors in determining whether business necessity justifies rejection of the candidate: • The nature and gravity of the offense or offenses; • The time that has passed since the conviction and/or completion of the sentence; and • The nature of the job held or sought.

15. Arrest RecordsAn arrest without a conviction does not establish that a person actually engaged in misconduct. The arrest records must not only be related to the job at issue, but the employer must also evaluate whether the applicant/employee actually engaged in the misconduct. An employer can do this by giving the person the opportunity to explain and by making follow-up inquiries necessary to evaluate his/her credibility.

16. State Anti-discrimination Statutes: • Conn. Gen. Stat. § 46a-80 (2001) • Haw. Rev. Stat. § 378.2.5 (1993 & Supp. 2000) • Wis. Stat. Ann. § 111.321 (West 1997 & Supp. 2001) • Cal. Lab. Code § 432.7 (West 1989 & Supp. 2002) • 775 Ill. Comp. Stat. Ann. § 5/2-103 (West 2001) • Mass. Gen. Laws Ann. ch. 151B, § 4(9) (West 1996 & Supp. 2002) • Mich. Comp. Laws § 37.2205a (2001) • R.I. Gen. Laws § 28-5-7(7) (2000) • Colo. Rev. Stat. § 24-5-101 (2001) • N.J. Stat. Ann. § 2A:168A-1 (West 1985 & Supp. 2001) • N.Y. Correct. Law §§ 752-54 (McKinney 1987 & Supp. 2001-2002) • N.Y. Crim. Proc. Law § 160.60 (McKinney 1992 & Supp. 2001-2002) • N.Y. Exec. Law §§ 296(15)-(16) (McKinney 2001) • R.I. Gen. Laws § 28-5-7(7) (2000)

17. Credit History Fair Credit Reporting Act (FRCA)

18. The FCRA determines the circumstances under which employers may request consumer reports for prospective or active employees. 15 USC § 1681, et. seq. Potential for Disparate Impact Claims Unbiased criterion as to which groups will have pre- or post-employment credit checks

19. An employer may take action, up to and including termination, when a credit check reveals what may be considered “actionable information” if the employer has taken the necessary steps required by the FCRA. The steps required by the FCRA include: • Employer must notify the employee about the negative information and being reported prior to taking action against the employee. • The employee has an opportunity to dispute this information with the company providing the report.

20. Questions for management: • What negative credit information will be considered “actionable information” and will this change on a case by case basis? • Is there a reasonable link between the actionable information and the employee’s continued fitness for their current position? • What if the employee’s performance evaluations reveal that they are effective or highly effective? • How will you address long-term employees and others in protected classes who may be disproportionately impacted by your decision to act on negative credit information? • What level of discipline is appropriate? • Will you give the employee an opportunity to cure? • Is negative credit “just cause” for disciplinary action?