Pubdate: Sat, 17 May 2014
Source: Opelika-Auburn News (AL)
Copyright: 2014 Media General, Inc.
Author: Tommy Eden
Bookmark: (Drug Testing)


Micheal Hudson, a multi-media specialist for the city of Riviera 
Beach, Fla., was ordered by Human Resources Director Doretha Perry to 
take a reasonable suspicion drug test. When Hudson later revoked the 
city's access to the results of his hair sample drug test, he was 
fired for refusal to take the test.

Hudson then filed a lawsuit in Federal Court alleging that Perry 
violated his rights under the 4th Amendment to the U.S. Constitution 
by ordering him to submit to the drug tests or risk termination 
because of alleged bad blood between Hudson and Perry's son, Troy, 
who also worked for the city. Hudson's direct supervisor and his 
supervisor did not request that Hudson be tested or suspect Hudson of drug use.

Hudson had consistently received "excellent" evaluations and had 
never been reprimanded or disciplined in his four years of employment 
with the city, and Hudson did not work in a safety-sensitive position 
or perform safety-sensitive functions, according to the allegations 
of his complaint.

After reluctantly taking a Breathalyzer test (negative), a urine test 
(negative), and a hair-sample test, Hudson asked Perry what the 
reasonable suspicion was for the testing and requested that Perry 
provide him with any records supporting reasonable suspicion. 
According to Hudson's complaint, Perry became infuriated and 
retorted, "It does not work like that[.] [T]here are no records[.] I 
don't have to give you copies of anything."

When Hudson responded by showing Perry the Florida Drug Free Work 
Place Act, Perry allegedly taunted him, asking what he was going to do.

Perry later provided Hudson with a one-paragraph explanation for why 
she ordered the drug testing stating that she had "received several 
complaints from employees alleging [Hudson's] eyes were glassy and he 
smelled like marijuana," according to allegations in the complaint. 
It did not identify which employees had allegedly complained about 
Hudson, and Perry later stated that she could not recall who had 
complained and could not even remember the gender of the allegedly 
complaining person or persons.

Perry never informed Hudson's immediate supervisor that she had 
received complaints about Hudson and during a later unemployment 
hearing Perry contradicted herself saying that she had tested Hudson 
"on a whim[,] a mere hunch," and that she had been determining who to 
drug test in that manner "for years."

Last week Judge Rosenbaum of the U.S. District Court for the Southern 
District of Florida ruled that Perry's drug test directive wasn't 
supported by individualized suspicion under the Fourth Amendment to 
the U.S. Constitution. Judge Rosenbaum held that, "With respect to 
drug-testing of public employees, the Supreme Court has authorized 
random, suspicionless searches only where the nature of the 
individual's employment implicated public safety," The judge 
continued that this was not the case in regards to Hudson.

"This is in no way related to any public-safety measure or other 
recognized government interest supporting a suspicionless search ... 
In the absence of any suspicion at all, such a personal and abusive 
use of the government's power to conduct drug testing so obviously 
violates Fourth Amendment rights that no case law stating this 
proposition was necessary." The case is Hudson v. City to Riviera, Fla.

Common Sense Counsel: Opportunities to learn from other's mistakes is 
always the best way to read these cases. Public employee drug and 
alcohol testing is walking the 4th Amendment tightrope of a legally 
permissible search balanced again public and employee safety and 
other safety sensitive issues. Using these five counterweights will 
help keep you balanced:

- - Have your policy and essential forms updated to meet 4th Amendment 
standards as federal regulations, best practices, state laws and 
cases are constantly changing;

- - Make sure all supervisors have been trained on reasonable suspicion 
within the last 12 months with a test and sign off;

- - Conduct employee awareness training on your updated policy;

- - Adopt a pre-duty impairing effects disclosure safety policy; and

- - Know who you are going to call when you start to lose your balance 
so you will not be the next lesson I write about.
- ---
MAP posted-by: Jay Bergstrom