A “reasonable suspicion” drug test triggered by an employer’s discovery of apparent drug paraphernalia did not violate a public employee’s Fourth Amendment rights to be free from unreasonable searches and seizures, a court in Arkansas has held. Brotherton v. Hill, No. 4:12-cv-534 (E.D Ark. Sept. 4, 2014).
Brotherton worked as a boiler operator at the Arkansas Health Center, a nursing facility of the Arkansas Department of Human Services. The parties did not dispute that his job duties were dangerous. Under the Center’s drug and alcohol testing policy, boiler operators were subject to random testing and reasonable suspicion testing. Reasonable suspicion testing typically is conducted when there is reason to believe that an employee is or may be using drugs or alcohol, based on observations of the employee’s appearance, behavior, speech and breath or body odors.
In November 2011, a supervisor found a cigarette lighter next to an aluminum pie pan in the men’s restroom used by Brotherton and other employees. Burnt brown residue was in the pie pan. The supervisor notified the safety officer — a former narcotics officer with many years’ experience in law enforcement. The safety officer suspected drug use. Brotherton, and all other maintenance employees on duty at the time, immediately were subjected to drug testing, even though there was no individualized suspicion as to any one of them.
Although Brotherton apparently tested negative and was not subjected to any adverse employment action, he objected to the testing on the grounds that it violated his Fourth Amendment rights prohibiting unreasonable searches and seizures. The Court disagreed and dismissed his claim, holding that the Center had a compelling interest in ensuring that Brotherton performed his safety-sensitive duties “with a clear mind” and that the intrusion into his legitimate expectation of privacy was minimal. More specifically, the Court rejected Brotherton’s complaint that he was detained after work for an hour in order to take the drug test, causing him to miss an appointment, and also rejected his complaint that the safety officer yelled at him when he asked to leave to go to his appointment. The Court stated that these complaints did not make the drug test unreasonable. Additionally, the facts that other employees used the men’s room and that the brown material in the pie pan tested negative for drugs did not diminish the reasonableness of the employer’s suspicions.