The American Civil Liberties Union of Florida (ACLUFL) [advocacy website] filed a lawsuit [complaint, PDF; press release] Tuesday challenging an executive order that mandates state government agencies provide pre-employment drug screening for all prospective employees and provide for random drug testing of all current agency employees regardless of classification. Governor Rick Scott [official website] issued Executive Order 11-58 [text, PDF] in March and directed the drug testing policy to go into effect by May 21, 2011. The complaint was filed in the US District Court for the Southern District of Florida [official website] on behalf of the American Federation of State, County and Municipal Employees Council 79 (AFSCME) [official website], a union representing 50,000 public workers affected by the order. In the complaint, the ACLUFL argues that the order violates the Fourth Amendment's prohibition of unreasonable governmental searches and case law stating that drug-testing without suspicion is unreasonable except under certain circumstances, such as when employees are involved in "safety-sensitive" positions. The ACLUFL points out that the governor's reasoning behind the order was not to promote safety, but to exert control over employees in order to maintain discipline and lessen absenteeism. The ACLUFL further argues that the order would not only violate employees' constitutional rights, but would also cause the AFSCME to waste personnel and monetary resources since the drug testing policy would be subject to collective bargaining. Special counsel for the AFSCME argued that the order unfairly singles out public workers:
Government employees go to work, do their jobs, pay their bills and contribute to their communities just like anyone else. There is no suggestion that government workers use drugs more than the public at large so to single them out for government searches is unnecessary, expensive and offensive.The complaint asks the court to quash the order as violative of the Fourth Amendment and direct all agencies to cease drug testing that was implemented as a result of the order. The complaint also requests that the court enjoin all agencies affected by the order from implementing the drug-testing policy until final judgment is entered.
The US Supreme Court [official website] handed down a decision in January regarding background checks into federal contract employees' possible past drug use and their impact on Fifth Amendment rights. In NASA v. Nelson [Cornell LII backgrounder; JURIST report], the court upheld that NASA's background investigation into whether a federal contract employee has received counseling or treatment for illegal drug use did not violate the employee's constitutional right to informational privacy under the Fifth Amendment. The Ninth Circuit held that the background checks did violate this right, but the Supreme Court reversed [JURIST report], stating that the government has an interest in conducting basic employment background checks to ensure "the security of its facilities and in employing a competent, reliable work-force."