Drug Testing Act

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Drug Testing Act

Post  THE BUSINESS OF LAW on Fri Sep 12, 2008 4:41 am

Especially in the field of labor law. At-will employees in particular need a few good lawyers on their side.

An opinion and question. Through, Reagan's Omnibus Drug Testing Act, government agencies began conducting mandated drug and alcohol testing of federal employees. The mandate spread and now covers employees, whether or not they work for the government, who perform safety-sensitive work, like pilots and truckers. The FMCSA, FAA, USCG and other agencies established specific, mandatory regulations that "must" be followed. In fact, the S.C. decided that drug testing, without reasonable suspicion, en masse, constituted a search. Ruling in favor of such searches to protect the public, adherence to the regulations is critical in sustaining the constitutionality of these tests.

Therein lays the rub. Employers have an incredible advantage as the testers. They can claim an employee failed a test, fire him, and through this false allegation, disqualify him for benefits. try as he may to prove he's clean, he must rely upon the tester and the testers' "business" chums. Several regs promise protection from abusive testing, but no one in the government has come to the aid of a falsely accused "druggie" and no one is prepared to believe an employer would frame an innocent worker. We are at war with drugs, remember? It is patriotic to dispose of these sleaze balls.

Now the icing. The filthy Nuevo rich entrepreneurs of the testing industry have to a large degree taken-over the entire show. Driven by greed and accountable to no one, they call the shots and lure the regulators away from their posts to the playgrounds of the wealthy, all in the name of their mission to make America safer.

Where are the champions of the causes for the weak and oppressed?

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Re: Drug Testing Act

Post  JoeC (McGruff) on Fri Sep 12, 2008 4:49 am

Are you a student THE BUSINESS OF LAW?
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Student

Post  THE BUSINESS OF LAW on Fri Sep 12, 2008 8:03 am

absolutely. University of Books. lol. On my own. eager learner. I have come to believe that the "judicial system" is a term used to describe a business venture. Justice is defined by the profitability of one's trek through the courts' doors. There are several ways to achieve success in this market. Knowing the right people, capacity to apply "law" in creative ways, lying, cheating and tricking others are the essentials. Being truthful, upright, fair, decent, honest and trustworthy will decrease your chances of obtaining justice.

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Re: Drug Testing Act

Post  JoeC (McGruff) on Fri Sep 12, 2008 11:48 am

Well I am glad you are taking the time to study these things. However the current issues section is the proper forum for posting these comments. It's not a big deal I am working the bugs out of the board.
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Re: Drug Testing Act

Post  THE BUSINESS OF LAW on Sat Sep 13, 2008 1:22 am

Sorry JoeC. When I received your invite, I was commenting on these things and didn't realize I was in the wrong place to do so here. I am new to this stuff.
In reality, I wish I could find a law student willing to tutor/coach me in the Law.

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Re: Drug Testing Act

Post  JoeC (McGruff) on Sat Sep 13, 2008 1:29 am

Well you in the right place, don't feel bad I am in the same pickle as you administrating this board. The road may get bumpy but the ride is free. Basketball
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Re: Drug Testing Act

Post  Eric on Sat Sep 13, 2008 1:53 am

THE BUSINESS OF LAW wrote:Sorry JoeC. When I received your invite, I was commenting on these things and didn't realize I was in the wrong place to do so here. I am new to this stuff.
In reality, I wish I could find a law student willing to tutor/coach me in the Law.

On the issue of drug testing in the workplace....

An employer is somewhat constrained by the Americans with Disabilities act when it comes to summarily dismissing an employee who comes up positive for a drug test. If the employer is required to administer mandatory drug screening, ala the DOT, then there is ground for summary economic execution of the employee.

Otherwise, unless agreed to in a collective bargaining agreement, an employer is wise to have a drug testing policy that includes a second chance for the employee. IF they don't the employer leaves themselves open for ligitation.

Feel free to ask me whatever you like about labor law. My undergrad degree was earned from the partnership program between Cornel's ILR School and the National Labor College.

Iím not an expert, but I pretty much know what Iím talking about.

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Re: Drug Testing Act

Post  THE BUSINESS OF LAW on Sat Sep 13, 2008 10:23 am

even when the testing is performed under the mandate of federal and state authority, there is no enforcement per-se. the accused is guilty until proven innocent. the accused loses his job, if he is at-will, without recourse because the employer does not need a reason to fire him in the first place. the employee can demand access to all the protections the regulations promise, but it is meaningless. the employer says, in effect, screw you pal. just try to get your testing documentation from me and my mro.
without the threat of enforceable penalties, all the regulations in the world don't mean anything.
Without a contract, the at-will employee is powerless. But, according to the definition of a contract, I contend that mandated testing is, in reality, contractual.
in federal court, how does a litigant apply specific regulations to his circumstances? for example, one rule/reg states that upon written request, the employee is entitled to receive all the testing information about his test from the employer, the mro, the collection site, etc. when they fail to produce those records, he can issue a subpoena, right? if they still refuse, and the judge takes no action, what then? can the litigant file an interlocutory appeal?

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Re: Drug Testing Act

Post  Eric on Sun Sep 14, 2008 2:38 am

THE BUSINESS OF LAW wrote:even when the testing is performed under the mandate of federal and state authority, there is no enforcement per-se. the accused is guilty until proven innocent. the accused loses his job, if he is at-will, without recourse because the employer does not need a reason to fire him in the first place. the employee can demand access to all the protections the regulations promise, but it is meaningless. the employer says, in effect, screw you pal. just try to get your testing documentation from me and my mro.
without the threat of enforceable penalties, all the regulations in the world don't mean anything.
Without a contract, the at-will employee is powerless. But, according to the definition of a contract, I contend that mandated testing is, in reality, contractual.
in federal court, how does a litigant apply specific regulations to his circumstances? for example, one rule/reg states that upon written request, the employee is entitled to receive all the testing information about his test from the employer, the mro, the collection site, etc. when they fail to produce those records, he can issue a subpoena, right? if they still refuse, and the judge takes no action, what then? can the litigant file an interlocutory appeal?

i have no problem with your analysis vis a vie the at will employment issue and the issue about employees being sumarily fired for failing a drug test.

Your analysis as to the contractual issue and its application in a federal court of law is another matter. Contract law is state law; there are only some statutes that apply to contracts between certain parties that are governed by federal law. The NLRA being the first that comes to mind and departmen of labor or transportation regulations another.

If an employee were to go to state court, or federal court if there is a federal question involved, he can use discovery tools in order to gain access to the testing results and procedures used by his employer and the lab. I can't think of any reason for the lab to withhold the results and procedures used during the testing procedure. There is a section in the federal rules of civil procedure that deals specifically with medical evidentary procedures and the discovery thereof. I dont have my FRCP book in front of me, so I can't quote you the section, but it is in there.

An interlocutory appeal pertains to an appeal to a higher court on a motion brought before a final ruling has come from the lower court. If the trial court throws out the employees claim on summary judgment the employee would be free to appeal up the ladder, so there really would be no reason to file interlocutoraly < I'm not sure that is a word, but you know what I mean>.

I guess we can both agree that employees in the good ole US of A need, and deserve, better legal protections when it comes to their rights in regard to employment relationships. The employer employee relationship has evolved around private property rights and the right to contract in America. This has had the result of rendering the employee's rights in contract law nil.

So, at the very end of the day, we agree that employees are behind the eight ball. This situation is not only applicable to the drug testing area, but runs the whole gamut in the employment relationship.

Canada is always an option, but from what I understand things are going south there too.

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I appreciate the information you offered

Post  THE BUSINESS OF LAW on Mon Sep 15, 2008 3:08 am

Drug testing is not considered a medical procedure. Would FRCP still address discovery? I will look.
The Department Of Transportation is the governing federal agency. The regs, as codified in Title 49 Parts 40 and 382, describe in exquisite detail the rights of employees who are tested. But, they are a joke. Whether or not they form a contract, per se, they make promises to the participants under their mandate. Yet, there is no policing; none that benefits employees, anyway.
If a federal court decides not to decide on the applicability of these regulations, is this something that could appealed through an interlocutory? (I am not talking about a private cause of action.) To try a case before this particular question is addressed seems like a waste.
It seems to me that there is a question under the "color of law" as well. The feds and the state tell employers they must execute their drug testing policy as defined by them through Title 49 and corresponding state protocol. Employers assume state authority in this context, don't they?

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Re: Drug Testing Act

Post  JoeC (McGruff) on Mon Sep 15, 2008 3:52 am

The Ninth Circuit has handed down Lanier v. City of Woodburn, 06-35262 (9th Cir. Mar. 13, 2008), a case discussing the permissibility of drug testing public employees.Lanier sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests violated her privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. The trial court granted summary judgment in Lanier's favor, finding that the policy was facially unconstitutional. The 9th Circuit affirmed in part and reversed in part - concluding that the policy was unconstitutional as applied to Lanier (who had applied for a job as a library page) but not facially invalid. http://caselaw.lp.findlaw.com/data2/circs/9th/0635262p.pdf
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4th amendment

Post  Eric on Mon Sep 15, 2008 11:22 pm

JoeC (McGruff) wrote:The Ninth Circuit has handed down Lanier v. City of Woodburn, 06-35262 (9th Cir. Mar. 13, 2008), a case discussing the permissibility of drug testing public employees.Lanier sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests violated her privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. The trial court granted summary judgment in Lanier's favor, finding that the policy was facially unconstitutional. The 9th Circuit affirmed in part and reversed in part - concluding that the policy was unconstitutional as applied to Lanier (who had applied for a job as a library page) but not facially invalid. http://caselaw.lp.findlaw.com/data2/circs/9th/0635262p.pdf
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Unfortunately the 4th amendment does not apply to private employers. It only applies in the public sector.

Title VII applies to private workplaces, and the drug free workplace act of 1999 gives employers essentially free rein to to test for illegal drugs for all job applicants. Individuals that are already employed that are subject to drug screening tests have a little more leeway as drug use is sometimes seen as a disability.

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fourth amendment

Post  THE BUSINESS OF LAW on Thu Sep 18, 2008 4:25 pm

If you are subject to mandated testing, even as a privately employed person, the 4th. amendment covers you, I believe. People who work in "safety-sensitive" jobs, truckers, pilots, etc., for the private sector, must submit to government mandated testing and are therefore protected by the Constitution, if I'm not mistaken.

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Re: Drug Testing Act

Post  Eric on Fri Sep 19, 2008 12:49 am

THE BUSINESS OF LAW wrote:If you are subject to mandated testing, even as a privately employed person, the 4th. amendment covers you, I believe. People who work in "safety-sensitive" jobs, truckers, pilots, etc., for the private sector, must submit to government mandated testing and are therefore protected by the Constitution, if I'm not mistaken.

Sorry to be the bearer of bad news, but when an employee works in a safety sensitive job where the Congress has enacted legislation under the commerce clause of the Constitution the only protections those employees are afforded are provided by the due process clause. Since the legislation mandates drug testing those employees that are subject to that mandate have no rights to resist the search and seizure of their bodily fluids.

As long as the law, and the employer performing thier obligation under the statute, conforms to the due process clause, both procedurally and substantively, the employee must submit and cannot resist the testing.

For better or for worse, (and you can make valid arguments both ways) welcome to America.

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the nitty gritty

Post  THE BUSINESS OF LAW on Sun Sep 21, 2008 12:38 am

"The proliferation of employee drug testing by federal and state governments and by private sector employers acting pursuant to governmental directives has led to a steadily growing number of lawsuits raising constitutional challenges to such testing. Most of these cases have been based on the Fourth Amendment's prohibition of unreasonable searches and seizures. In 1989, the Supreme Court addressed the constitutionality of employee drug tests for the first time in two cases,Skinner v. Railway Labor Executives' Ass'n and National Treasury Employees Union v. Von Raab. Recognizing that urinalysis drug testing constitutes a search for Fourth Amendment purposes, the Court determined the constitutionality of the drug tests by balancing the governmental interest in the testing against the privacy interest of the employees and, in both cases, upheld the drug testing at issue. The Skinner and Von Raab decisions provided guidelines for analyzing Fourth Amendment challenges to employee drug testing, and the lower courts are now in the process of applying and refining these guidelines.
Constitutional challenges to employee drug testing programs have also been based on the due process clause and the equal protection clause of the Fourteenth Amendment and on the First Amendment's guarantee of freedom of religion. Unlike Fourth Amendment claims, however, these claims have rarely been successful."
If the employee was selected, deliberately, instead of randomly chosen, this is a fundamental violation of one's right to be free of an unreasonable search, isn't it? If those in charge of testing under the due-process clause fail procedurally and substantively, how does the offended party find relief?
Have you found any law students interested in helping employees with their lawsuits?

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Re: Drug Testing Act

Post  JoeC (McGruff) on Mon Oct 13, 2008 2:50 am

OK I just learned a new feature I can remove a topic out of topic without deleting the post. Wish I new that before.
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Re: Drug Testing Act

Post  bears00 on Mon Oct 13, 2008 3:32 am

Okay, so riddle me this....

DID YOU FLUNK A PISS TEST???

Eric...you are DEAD WRONG about ADA protections for a positive pizz quiz. The ADA specifically excludes active drug users. Recovering addicts are protected.
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Re: Drug Testing Act

Post  JoeC (McGruff) on Mon Oct 13, 2008 3:37 am

Oh no bear winding up Sposito the radical law student! I am going to get the pop corn going and watch the Beltway boys on this thread. Oh boy!
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Re: Drug Testing Act

Post  bears00 on Mon Oct 13, 2008 4:31 am

JoeC (McGruff) wrote:Oh no bear winding up Sposito the radical law student! I am going to get the pop corn going and watch the Beltway boys on this thread. Oh boy!
While you are at it, you should grab your bullet proof body armor, remember....I PACK HEAT! lol!
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Re: Drug Testing Act

Post  JoeC (McGruff) on Mon Oct 13, 2008 4:34 am

I don't know what happened to Sposito he was here now hes gone. Its the eye of the storm.
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