United States Court of Appeals Extends Constitutional Drug Testing Protection to Public Sector Job Applicants

In 1997 the California Supreme Court, in what was then a landmark decision, held that when it came to drug and alcohol testing, employees of public entities had privacy rights which were protected by the United States and the California Constitutions, but that such rights did not apply to applicants for employment. That decision is now in doubt as the result of the decision of The United States Court of Appeals for the Ninth Circuit. On March 13, 2008, in a case arising out of Oregon, Lanier v. City of Woodburn, the Ninth Circuit held that an applicant for the job of library page in the city’s public library was protected by the Fourth Amendment of the United States Constitution. The job of a library page consisted mainly of re-shelving books. Screening for drugs constitutes a search within the meaning of the Fourth Amendment, and if there was no basis for suspicion, there was no overwhelming interest in the public library to screen a prospective library page, since the job was not “safety sensitive” as is the job of a heavy equipment operator. Although this case arose in the State of Oregon, it applies to public employers in California and all of the other states in the Ninth Circuit’s jurisdiction.