Pre-employment drug testing has become commonplace. As a result, many job seekers are forced to undergo pre-employment drug testing for even the most mundane and poorly paid positions, such as service positions in grocery stores, convenience store, and the like. Yet, there can be no valid concern that an inebriated store clerk or bag boy poses a real danger to the public safety

However, increasingly, the appellate courts are determining that drug testing as a condition of employment violates the Fourth Amendment right to be free from unreasonable search and seizure, except under certain circumstances. The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The most recent case involves a job seeker who was offered a job as a library page, but refused to submit to the pre-employment drug test and as a result of that refusal, the offer was withdrawn. The court in that case, Lanier v Woodburn (9th Circuit) found that the requirement violated the job seeker’s Fourth Amendment rights, since it cannot reasonably be argued that the position is safety sensitive, and noted:

Jobs are considered safety-sensitive if they involve work that may pose a great danger to the public, such as the operation of railway cars, Ry. Labor, 489 U.S. at 628-29; the armed interdiction of illegal drugs, Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 677-78 (1989); work in a nuclear power facility, IBEW, Local 1245 v. United States NRC, 966 F.2d 521, 525-26 (9th Cir. 1992); work involving matters of national security, AFGE Local 1533 v. Cheney, 944 F.2d 503, 506 (9th Cir. 1991); work involving the operation of natural gas and liquified natural gas pipelines, IBEW, Local 1245 v. Skinner, 913 F.2d 1454, 1461-63 (9th Cir. 1990); work in the aviation industry, Bluestein v. Skinner, 908 F.2d 451, 456 (9th Cir.1990); and work involving the operation of dangerous instrumentalities, such as trucks that weigh more than 26,000 pounds, that are used to transport hazardous materials, or that carry more than fourteen passengers at a time, Int’l Bhd. of Teamsters, 932 F.2d at 1295.

Other positions for which the court cited drug testing as reasonable included teachers, and similar positions wherein the employee would work with children in a capacity which would require they act in loco parentis. In general, the courts have determined that suspicionless drug testing can only be done in light of a special need, and not simply by virtue of drug abuse being a general societal problem, which is the reason given by most employers.

The tide of the court decisions regarding pre-employment drug testing appears to be turning toward protecting the applicant from an invasive search, except when the employer can show a special need for such testing.

While it is not yet generally accepted that pre-employment drug testing is, in and of itself, a violation of the right against unreasonable search and seizure, the courts are increasingly determining much of the pre-employment drug testing we see today to be unconstitutional. Unfortunately, as with most challenges of a constitutional nature, the change will not take place overnight, but rather one case at a time, until either laws are passed against the practice, or until employers realize that a challenge to that practice would prove far too costly to render unnecessary drug testing practicable in the long run.

Hopefully there will soon be a more complete understanding that, minus the ability to demonstrate a legitimate need, pre-employment drug testing is a clear violation of the Fourth Amendment, and thus unconstitutional in most cases.

A libertarian, unless they are in a position where public safety is a concern, should always refuse to undergo pre-employment drug testing, even when they are not drug users and thus sure to pass. It is only when employers begin to realize that the most valuable potential employees are refusing to undergo such testing upon constitutional grounds, will they begin to rethink whether it is profitable to their bottom line to continue this ludicrous practice.