Substance abuse is an incredibly sensitive topic because alcohol addiction and drug addiction are diseases that many people struggle to overcome. Addiction is dangerous, deadly, painful, embarrassing, and hurts loved ones. For this reason, many people go to great lengths to keep this struggle private. When it comes to employment laws, drug testing really tests the balance of a person’s right to privacy versus an employer’s right to employ people who can fulfill their job duties.
U.S. Constitution and Californians’ Right to Privacy
The United States Constitution, Fourth Amendment, states that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Further, the California Constitution states that:
“All people are by nature free and independent, and have certain inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
Drug Testing of Job Applicants or Recently Employed Individuals
If you are applying for a job, employers are permitted to ask for “suspicionless” drug testing. Suspicionless means that an employer cannot discriminate in who it ask for a drug test, or single out any applicant or group of applicants based upon a characteristic such as race or nationality. Instead, everybody applying for that position has to be drug tested. Further, submitting to this drug test can be a condition of employment before the applicant is hired.
Drug Testing of Employees
Employers are much more limited when it comes to asking drug tests of employees. When a person is employed in California, the rules favor employees and make it incredibly difficult for employers to legitimately seek drug tests. If you recall above, the Constitution protects people against “unreasonable searches and seizures” absent “probable cause.” This fundamental principle has been employed to drug testing of employees.
For example, random drug testing of employees is generally impermissible, but may be allowable for hazardous work. Further, there is a carved out exception of “reasonable suspicion” testing, which must be based on “objective facts” and “rational inferences”. So an employer must have reasonable suspicion to ask for a drug test.
You Need a Lawyer
If your right to privacy has been violated by your employer, you need an attorney. California law and the U.S. Constitution provide strong protections to California employees. At Moss Bollinger, we strive to stand up against employers and defend the legal rights of employees. Contact us and we can help determine whether you have a claim. We work on a contingency basis, so you pay nothing up front. Call us today at (866) 535-2994for a free consultation or contact us online.