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Know your state drug testing rules – California Governed by the State Constitution

Last updated on August 17th, 2020 at 10:54 am

There are many State laws on drug testing, learn about drug testing laws in California.

Article written by guest authors – By William J. Judge, JD. LL.M. & Nick Hartman, Co-Founders of Drug Screening Compliance Institute (DSCI)

“All people are, by nature, free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.[1]

Article I, Section I of the California Constitution provides that “all people” enjoy the right to privacy.  This is where all private employment drug testing considerations within California must begin.  No state statute in California limits private employer drug testing, but the state constitution does.

In 1994, the California Supreme Court recognized that the right to privacy established by a voter initiative in 1974 limited private entities.[2]  Why is this important to know?  Because, typically, state constitutions and the constitution of the United States protect us from actions by the government or those acting on behalf of the government.  Constitutional protections do not usually extend to private actions such as in the workplace [3] – except in California.

The California Supreme Court first determined that the California constitution protects individuals in a private setting.  In Hill v. NCAA, student-athletes challenged required drug testing imposed by the NCAA through Stanford University, one of its member institutions.[4]  The NCAA argued that as a private entity, it was not limited by the state constitution. The Court disagreed, concluding that a right of action against private as well as government entities was created by Article I, Section I of the California Constitution.

Courts have extended the Hill determination to private workplace drug testing.  How is this principle applied to drug testing? The right to privacy[5] , as recognized in Hill, protects us from unreasonable searches.  A drug test is considered to be a search.[6]  It has long been known that the act of urination is inherently private.[7] Therefore, to be constitutional, a drug test must be reasonable.

What is reasonable?  The legitimacy of each aspect of an employer’s drug testing program will be viewed in light of its reasonableness. Who will be tested? When do tests occur? How will tests be conducted? The reasonableness of each aspect of a testing program must be balanced against an applicant’s or employee’s expectation of privacy.

Consider the following examples:

  • 1997: California Supreme Court in Loder v. City of Glendale[8] , after balancing the City’s need to maintain safety against the individual’s privacy interest, approved all applicant testing but not testing of all those seeking promotion.
  • 1999: California Appellate Court upheld random testing in Smith v. Fresno Irrigation Dist.,[9] after balanced the safety-sensitive nature of the District’s positions against the employee’s privacy interest.
  • 2000: California Appellate Court in Edgerton v. State Personnel Board[10] affirmed a trial court’s determination that requiring an employee’s drug test during off-duty hours violated the employee’s expectation of privacy.
  • 2015: California Appellate court found that debt collectors working for a private employer could not be characterized as safety-sensitive, thereby justifying random testing.

Employers must analyze the reasonableness (employer interest v individual’s privacy) of every aspect of a drug testing program. In balance, are those to be tested necessary? Is the timing of the test (pre-employment, random, post-accident, etc.) appropriate? How will tests be conducted (hair, urine, blood, etc.)? Are the consequences imposed reasonable?

Employers conducting workplace drug testing in California must find the constitutional balance.

©2020 Drug Screening Compliance Institute (“DSCI”). All rights reserved. DSCI is NOT a law firm. The information contained herein is for general informational purposes only. DSCI does not practice law, is not licensed to practice law, and is not providing legal advice. Best efforts are made to present the most up-to-date information available; however, this material changes often. You should consult an attorney regarding the use of information before taking any action. DSCI must first approve redistribution of this content in any form.

[1] California Constitution, Art. I, Sec. 1 added Nov. 5, 1974, by Proposition 7. Resolution Chapter 90, 1974.

[2] Hill v. NCAA (1994) 7 Cal.4th 1, 20.

[3] Some states have extended statutory rights to privacy to the private workplace. See for example  Alaska: Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123; Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992); Twigg v Hercules Corp., 185 W. Va. 155 (1990).

[4] Hill v. NCAA, 7 Cal.4th 1, 23-24 (1994).  The Court pointed out that case law generally confirms that the NCAA is a private organization.

[5] Defined as “the right to be left alone.”  Warren and Brandeis, The Right to Privacy (1890) 4 Harv. L .Rev. 193; cited by the California Supreme Court in Hill v. NCAA, 7 Cal.4th 1, 23-24 (1994).

[6] Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602; cited by the California Supreme Court in Loder v. City of Glendale, 14 Cal.4th 846 (1997)

[7] Folmsbee v. Tech Tool Grinding Supply, Inc. 417 Mass. 388 (Mass. 1994).

[8]  14 Cal.4th 846 (1997).

[9]  72 Cal. App.4th  147 (1999),

[10]  83 Cal. App.4th 1350 (2000).