Random Follow-Up Drug Testing During Off-Duty Hours May Infringe on  Employee's Constitutional Right to Privacy

By Doug Larsen

In Edgar v. State Personnel Board, The First Appellate District of the California Court of Appeal held that off-duty drug testing violates an employees constitutional right to privacy.

In October 1995, Perrin Edgerton, an equipment operator for CalTrans, failed a random drug test by testing positive for marijuana. CalTrans issued a notice of adverse action and dismissed Edgerton. CalTrans and Edgerton thereafter agreed to reduce Edgertonís dismissal to a suspension of 20 working days and Edgerton agreed to remain drug and alcohol free and to submit to random follow-up drug testing.

In January 1996, Edgerton failed a follow-up drug test by testing positive for methamphetamines. Again, CalTrans issued a notice of adverse action and dismissed Edgerton. Edgerton appealed the dismissal to the State Personnel Board. The Board sustained the dismissal.

On December 13, 1996, Edgerton and his union, the IUOE, filed a combined petition for writ of administrative mandamus and a complaint. The complaint sought declaratory and injunctive relief against CalTrans on the ground that off-duty drug  testing infringed on an employees right to privacy.

The trial court granted the unions motion for summary adjudication and issued a permanent injunction prohibiting CalTrans from conducting off-duty drug testing. The court found that off-duty drug testing intruded upon an employee is constitutionally protected right to privacy. In determining whether a particular drug  testing program is constitutional, the intrusion on an individual's privacy interests must be balanced against the legitimacy and strength of the employers interest in conducting the testing.