There are three different tiers of legal analysis used in evaluating whether a public safety employer can require that its employees be randomly drug tested: Federal constitutional law, state constitutional law, and collective bargaining obligations.

As to federal constitutional law, it is now well settled that nothing in the federal Constitution bars a law enforcement employer from insisting on random testing for its employees. Courts have routinely rejected both “search and seizure” and right to privacy challenges to random testing. While the law is less uniform for firefighters, the majority rule clearly is that there is no federal constitutional bar to random drug testing.

Simply because the federal Constitution permits an employer to do something does not mean that action is still legal. Many state constitutions have greater grants of rights to citizens than the federal Constitution. It is possible that even though the federal Constitution permits random drug testing, such testing would violate principles of state constitutional law and could not be implemented. For example, in recent years the Supreme Courts in Arizona and Alaska have held that without regard to what an employer can do under the federal Constitution, random testing of police officers and firefighters would still violate state constitutional privacy guarantees in the absence of a showing of a demonstrable drug problem. Petersen v. City of Mesa, 83 P.3d 35 (Ariz. 2004) and Anchorage Police Department Employee’s Association v. Municipality of Anchorage, 24 P.3d 537 (Alaska 2001).

And then there is the matter of collective bargaining. Simply because an employer may be constitutionally allowed to do something does not mean that it is free to act in the area. A state or local collective bargaining law might limit the employer’s ability to act in the area. For example, an employer is constitutionally free to pay different wage levels and have different work schedules, but could not implement changes in these areas without likely violating the collective bargaining rights of labor organizations.

There is widespread agreement that random drug testing is a mandatory subject for collective bargaining. The first public safety case in the country came out of Florida in 1989, F.O.P. v. City of Miami, 571 So.2d 1309 (Fla. 1989), and numerous states have followed suit since. If drug testing is mandatory for bargaining, that means it has to go through whatever the normal impasse-resolution process is in a particular state. In some states – California, for example – most employers have the right to unilaterally implement their last best offer at the conclusion of bargaining. In most states with collective bargaining, the last step in the bargaining process is binding interest arbitration. To the best of our knowledge, the question of whether there should be random drug testing in a public safety agency has gone to interest arbitration in five different cities, including Oakland, California and Milwaukee, Wisconsin. In all five cases, the arbitrators ruled against random testing.

This article appears in the November 2007 issue