"I hate him" is not reasonable cause for a drug test

ROBIN'S NOTE: I am happy to have Tommy Eden back again for a guest post. Tommy is from Constangy’s offices in Opelika, Alabama, and West Point, Georgia. He drafts DOT and state-specific drug testing policies for clients nationwide, and he serves on the Board of the Substance Abuse Program Administrators Association.

Employers often want to know how much “smoke” there has to be before they can require an employee to take a “reasonable suspicion” drug test.

A recent case from Florida illustrates what is not reasonable suspicion: If you’re sending the employee for a test only because you can’t stand him, you don’t have reasonable suspicion.

(Please note that the court was deciding at a very early stage in the lawsuit only whether the plaintiff’s allegations, if true, would state a legal claim. The court did not find that any of the following actually happened.)

Michael Hudson, a multi-media specialist for government-access channel for the City of Riviera Beach, claimed that he had a good employment history, having received “excellent” performance appraisals and no discipline. In his capacity as a multi-media specialist, he was not in a safety-sensitive position, either.

However, he alleged, he had an ongoing dispute with the son of the City’s Human Resources Director. The son was the City’s fire chief, but Mr. Hudson’s troubles allegedly began after the son was promoted to Assistant City Manager.

According to Mr. Hudson’s lawsuit, the HR Director, acting in collusion with her son, told Mr. Hudson that he was required to have a “reasonable suspicion” drug test, as authorized by a collective bargaining agreement. Mr. Hudson reluctantly agreed to take a breathalyzer, which was negative. He also took a urine test, which was negative. He also took a hair test. When Mr. Hudson asked about the basis for the HR Director’s “reasonable suspicion” that he was using illegal drugs, he said that she angrily retorted, “It doesn’t work like that. I don’t have to give you copies of anything.” He showed her a copy of the Florida Drug-Free Workplace Act, and claimed that she sarcastically asked him what he was going to do about it.

"Do NOT make me send you for a drug test!"

Eventually, she provided him with a one-paragraph written explanation, saying that other employees had told her that he looked like he was smoking marijuana and that his eyes were glassy.

Mr. Hudson withheld the HR Director’s access to his hair test results, and he was terminated as a result. He alleged that at his unemployment hearing, the HR Director testified that she had selected him “on a whim[,] a mere hunch” and said she had been selecting employees for testing that way for years. She also allegedly testified under oath that she couldn’t identify the employees who had supposedly raised the concerns about Mr. Hudson’s drug use, and said she couldn’t even remember whether they were male or female.

Mr. Hudson sued the City, the HR Director, and another employee for violation of his rights under a variety of laws and constitutional provisions. A federal judge in Florida found that he had stated a valid claim under the Fourth Amendment to the U.S. Constitution against the HR Director. The judge’s finding means that the claim will not be dismissed in the initial stages, and that discovery will proceed, followed by the possibility of a trial. As stated above, the judge did not decide that Mr. Hudson’s allegations were true.

Although the case involves a public-sector employer, and although the case is far from over, it contains some good lessons for all employers.

*Make sure that your supervisors and managers are trained on the currently accepted signs of drug use so that they can make sound “reasonable cause” determinations.

*Periodically review your drug policies with your employees.

*Adopt a policy requiring employees to let you know before they start work if they are consuming any substances, legal or illegal, that might impair their work performance or safety on the job. (And make sure you don’t use the information in a manner that might violate the Americans with Disabilities Act.)

*If you want to “get even” with an employee in the way that the HR Director allegedly did, be sure you get counsel from cooler heads before doing something that you’ll regret.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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