By Erica Shelley Nelson and Brennen Johnson
In Allen v. Schiff, a U.S. Court of Appeals determined that a random drug testing procedure did not violate a New York correctional officer’s Fourth Amendment rights. The former correctional officer sued Sullivan County, New York, claiming that the County violated her privacy rights when it required her to perform a random, intrusive urine test for drugs. The Court found that the random testing did not violate the officer’s Constitutional rights because the corrections officer had a substantially diminished expectation of privacy, the drug test “was intrusive but not inappropriately so,” and the County had a compelling interest in effecting the test.
Lillian Allen was a corrections officer employed at Sullivan County Jail. Her duties included interdicting contraband, including illegal drugs, and at times she carried a firearm. In June of 2007, the County administered a random drug test, and Allen tested positive. She subsequently admitted to smoking marijuana the night prior to the test and at other times. Although she grieved the administration of the test, after grievance proceedings, an arbitration, and state court litigation, the County terminated her employment.
Although Allen sued the County claiming that the test violated her right of privacy, the trial court disagreed and ruled in favor of the County. The County had argued that the test was appropriate because Allen was working under a substantially diminished expectation of privacy as a corrections officer; the test was not inappropriately intrusive; and the County had a compelling interest in performing the test.
The Court explained that it assesses the constitutionality of such claims by examining three factors: (1) the nature of the privacy interest, (2) the character and degree of the intrusion, and (3) the nature and immediacy of the government’s needs. The Court then explained how those factors applied to Allen’s case:
Allen’s privacy interests were… substantially diminished because she was tasked with interdicting drugs and carrying firearms and was on notice that she could be tested at any time. The test collector, in obtaining Allen’s urine sample, took substantial measures to minimize the intrusion of privacy by conducting the test at a secluded location, closing all adjacent doors, blocking the windows, leaving the bathroom door open only 6-12 inches, standing outside the bathroom stall, and focusing her attention on Allen’s hand and cup to avoid viewing her genitalia. Finally, the Government had a compelling interest in insuring that corrections officers charged with interdicting drugs and carrying firearms were not using drugs, and in insuring the test’s accuracy by observing the test collection.
The Court determined that these factors supported the conclusion that Allen’s right to privacy was outweighed by the County’s interest in screening its correctional officers and its proportional reasonableness in conducting the test. Ultimately, the Court held that the test did not violate Allen’s constitutional rights.
This decision is not necessarily out of step with other federal court cases that have considered random drug testing and privacy claims. Interestingly, courts have upheld random drug testing of corrections employees, while requiring individualized reasonable suspicion for police officers (except for those police employees directly involved in narcotics investigations). It should be noted that for purposes of collective bargaining, drug testing may be a mandatory subject of bargaining (and certainly is in Washington State). Therefore, to the extent it is a mandatory subject of bargaining, both management and labor have an interest in working together to negotiate testing policies with robust procedural protections. Numerous courts have rejected drug-testing programs that lack necessary safeguards.
