Court Upholds Random Drug Test of County Correction Officer Which Led to Officer’s Termination

Friday, October 24, 2014

On October 9, 2014, the United States Court of Appeals for the Second Circuit issued a non-precedential summary order in Allen v. Sullivan County Sheriff sustaining the district court’s judgment below which held after a bench trial that defendants County of Sullivan, New York and the Sullivan County Sheriff did not violate the plaintiff correction officer’s right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution by subjecting her to a random drug test which eventually led to a termination of her employment with the Sullivan County Jail.

Allen was a female corrections officer employed at the Sullivan County Jail. She was responsible for interdicting contraband, including illegal drugs, and was required at times to carry a firearm. The County administered a random urine drug test in 2007, and she tested positive. She subsequently admitted to smoking marijuana the day before the drug test and on other occasions. After union grievance proceedings challenging the testing, a labor arbitration hearing, and state court litigation, the County terminated her employment.

Both the district court and the Second Circuit concluded that: (1) Allen had a substantially diminished expectation of personal privacy by virtue of her aforementioned job duties as a corrections officer and also because she was on notice, pursuant to the union contract covering her employment, that she was subject to random drug tests; (2) the drug testing procedures were not inappropriately intrusive; and (3) the County had a compelling interest in effecting the search so as to insure that its corrections officers charged with interdicting drugs and carrying firearms were not using drugs.

With regard to the drug testing procedures, the test collector, in obtaining Allen’s urine sample, took measures to minimize the intrusion on privacy by conducting the test at a secluded location, closing all adjacent doors, blocking the windows, leaving the bathroom door open only 6-12 inches, standing outside the bathroom stall, and taking other action so as to avoid viewing Allen’s genitalia while the sample was being taken.

After balancing the plaintiff’s reduced expectation of privacy, the test’s mitigated intrusion upon her expectation of privacy, and the County’s compelling interest in conducting the test and insuring its integrity, the Second Circuit held that “the district court properly found that the special needs of employing drug-free correctional officers was reasonable under the Fourth Amendment.”

The takeaway for public sector employers in New York State is that random drug testing of certain types of employees may pass constitutional muster based on their unique job duties. However, each situation should be evaluated on its own facts and advice of counsel should be sought to insure the legality of any such testing. Furthermore, there may well be collective bargaining implications if the employee is a member of a collective bargaining unit.

This information was originally sent out as a Hancock Estabrook Labor & Employment Law Alert.

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