• Random Drug Testing of Forest Service Job Corps Staff Rejected by Federal Appeals Court
  • July 5, 2012 | Authors: Matthew F. Nieman; Mark A. de Bernardo
  • Law Firm: Jackson Lewis LLP - Reston Office
  • A program requiring universal random drug testing for employees at 28 schools ran by the U.S. Forest Service is potentially unconstitutional, the U.S. Circuit Court of Appeals for the District of Columbia has held in a two-to-one decision. National Fed’n of Federal Employees v. Vilsack, No. 11-5135 (D.C. Cir. June 8, 2012).  The split decision has potentially wide-ranging implications for the federal workforce.

    Background
    The U.S. Forest Service operates 28 residential Job Corps Civilian Conservation Centers for at-risk youths and young adults aged 16-to-24. The centers serve clients from troubled environments, many with a history of drug abuse.  Most of the centers are in remote locations.  They provide vocational training, education and counseling, and work-based programs that teach conservation and management of natural resources and public recreational areas.

    Upon admission, students are advised of the U.S. Forest Service’s zero-tolerance policy for drug use and are subject to an initial drug test. In addition to suspicion-based drug testing, the staff periodically searches students’ residential areas for drugs and alcohol.  The students’ luggage is searched upon return from winter and summer breaks.

    During collective bargaining negotiations in May 2010, the U.S. Forest Service informed the National Federation of Federal Employees (“the Union”), which represents the Forest Services’ workers, that all Job Corps staff would be subject to random drug testing. Previously, the centers only tested nurses and center employees who were required to hold a commercial driver’s license.

    In October 2010, the union sued the Secretary of Agriculture and the Chief of the Forest Service, asking the court to declare the random-testing policy unconstitutional and requesting a preliminary and permanent injunction preventing implementation of the policy. The district court not only denied the Union’s request for an injunction, but also granted summary judgment to the U.S. Forest Service. It concluded the government’s interest in preventing illegal drug use at the Job Corps Centers justified the intrusion on “employees’ privacy interests and Fourth Amendment rights.” The Union appealed.

    Search
    Random drug testing by the federal government of its employees is a “search” subject to the Fourth Amendment’s reasonableness requirement. The Fourth Amendment to the U.S. Constitution protects the rights of people to be secure in their persons and property from “unreasonable searches and seizures” by the government. Generally, warrantless searches are per se unreasonable. To conduct warrantless searches, the government must establish that “special needs” (based on “some quantum of individualized suspicion”) make the warrant and probable-cause requirements impracticable.

    It is unquestioned that a drug test constitutes a “search” within the meaning of the Fourth Amendment. However, heretofore, courts have upheld random testing in the public sector, despite the application of the Fourth Amendment’s prohibition, because the federal government demonstrated a compelling need (e.g., regarding transportation workers and federal agents carrying firearms).

    Too Broad
    In response to the Union’s appeal, the Forest Service argued that the “operational realities” of maintaining the zero-tolerance policy and ensuring the safety of at-risk youths in a remote residential setting required random drug testing of all Job Corps employees.

    The Union claimed that a multi-year records review revealed few reported incidents of staff drug use. It also argued that many categories of administrative employees who would be subject to suspicionless testing under the government’s policy had little or no student contact and were not responsible for student transportation or safety. The Union contended the government could not establish a serious problem requiring expansion of the drug-testing policy.

    Writing for herself and Senior Judge Douglas H. Ginsberg, Judge Judith W. Rogers reversed and remanded the lower court’s grant of summary judgment to the defendants.  She held that there were disputed issues of fact over the existence of a staff drug-use problem. In overturning the lower court’s ruling, the Court relied upon the union’s proffered evidence regarding categories of workers with little or no student contact, no responsibility for student safety, or no involvement in implementing the zero-tolerance policy. It held the absence of an immediate crisis or threat to student safety provided no basis to negate the Fourth Amendment’s individual-suspicion requirement. The Court concluded the designation of all U.S. Forest Service Job Corps Center employees for random drug testing does not fit within the “closely guarded category of constitutionally permissible suspicionless searches.”

    Dissent
    In dissent, Judge Brett Kavanaugh said that because these residential schools provided many students who previously used drugs with a last chance to “straighten out their lives,” it was sensible to implement a narrowly targeted drug-testing program for all the schools’ employees. Judge Kavanaugh maintained, “In these limited circumstances, it is reasonable to test; indeed, it would seem negligent not to test.”

    Implications for Employers
    The Fourth Amendment applies to the public sector only. For the private sector, this case suggests the care employers should take in crafting a random-drug-testing program for employees in states or cities that restrict random testing to safety-sensitive positions or otherwise recognize heightened employee privacy rights. While the vast majority of states (39) have no legal restrictions on random drug testing of employees, and in several other states (e.g., Montana and New Jersey), the restrictions are relatively minor or procedural, there are potential risks for an employer who attempts to implement testing that is too inclusive (not considering carefully the various duties of employees) or one that does not take into account the operational realities, costs and administrative burdens of such programs.