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Boss' Dilemma: Should a Drug Test Be Required?

November 15, 1998

Q. I own a small business and suspect that one of my employees might be using drugs. His behavior is erratic, he sweats a lot, and he seems to spend a lot of time in the bathroom.

How can I require an employee to be tested for drugs without being accused of discrimination and without exposing myself to future lawsuits? Is it legal to require all employees to submit to drug tests?

--J.J., Anaheim

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A. The lawfulness of drug testing remains a hotly debated issue.

Because it is designed to obtain information that otherwise would remain hidden inside a person, drug testing of California employees can be (and has been) challenged as an invasion of the right to privacy guaranteed by the California Constitution. If the employer is the state or federal government, drug testing also raises 4th Amendment "search and seizure" issues.

There are few published decisions about the lawfulness of drug testing by private employers in California. However, it is widely accepted that a private employer may adopt a policy requiring an employee to submit to a drug test whenever the employer has a "reasonable suspicion" that the employee is under the influence of drugs at work. Of course, a private employer whose employees are represented by a labor organization should bargain with that organization before adopting such a policy.

The policy should be carefully drafted (with the advice of legal counsel) and the employer should be careful to maintain the privacy of test results, as well as when selecting the laboratory that will do the testing.

Although it may not be legally required, the employer probably should (1) give advance notice to its employees that they will be required to submit to a drug test if the employer has a reasonable suspicion that they are under the influence of drugs at work, (2) give employees access to the results of their own drug tests and an opportunity to question, review and explain them, and (3) assure that those responsible for deciding if there is a "reasonable suspicion" that an employee is under the influence of drugs have the training and/or experience necessary to make such a determination.

An employer that adopts a "reasonable suspicion" drug-testing policy cannot legitimately be accused of discrimination if it gives the same drug test to all who are reasonably suspected of being under the influence of drugs at work. Discrimination laws should be a problem in this context only if the employer decides whom to test based on the employee's race, sex, age, etc.

--Deborah C. Saxe,

Management attorney

Heller Ehrman White & McAuliffe

Tips on Reentering the Work Force

Q. Due to a recent divorce, I am reentering the work force after nearly 10 years of raising children. In my last position, I was an office manager. But I am willing to take a lower clerical position.

I am afraid that my long hiatus will hurt my chances of getting hired, even though I kept up with my computer skills through extension courses and by volunteering to help run some charitable organizations.

Do you have any advice about how to compensate for being out of the work force for so long?

--K.D., Pasadena

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A. Definitely mention on your resume and/or in a cover letter the volunteer positions you held during the last 10 years and the duties you assumed. You should also mention that you have kept your computer skills current.

Many employers understand the need for workers to leave and reenter the paid work force. Your volunteer activities will demonstrate to potential employers that you have been motivated and willing to work.

My only other advice is that you don't sell yourself short. Chances are you will be able to resume your career in a position similar to the one you left.

--Ron Riggio

Director, Kravis Leadership Institute,

Claremont McKenna College

Salaried and Feeling Shortchanged

Q. I am a salaried employee who does not get paid overtime. My company also does not pay us for a legal holiday, forcing us instead to use vacation time if we want to get paid for the day off. Are companies allowed to do this?

--D.D., Los Angeles

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A. I assume from your question that you are an exempt employee who is not entitled to overtime pay. If so, the answer depends on whether you took the day off because you wanted it off, or because your employer shut down its operations and you were not permitted to work that day.

If the former, your employer's practice is legal. An employer may require an employee to use vacation pay or sick pay to get his or her full salary for a week in which he or she takes time off for personal reasons.

However, if your employer's facility was closed on the holiday and you could not work, the employer's practice was not legal.

An employer may not make deductions from the pay of a salaried exempt employee where the employee fails to work a full week because the employer did not provide him with a full week's work.

--Michael A. Hood

Employment-law attorney

Paul, Hastings, Janofsky & Walker

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