Public employees sue FL Gov. Rick Scott over order to drug test state workers listen06/01/11 Sean Kinane
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A public workers union and a state employee from St. Pete are suing Governor Rick Scott because of an executive order requiring random drug testing of all state workers. A lawyer from the ACLU of Florida is joining with Peter Walsh, a Miami trial lawyer, to represent the plaintiffs.
"Executive order 11-58 calls for random drug testing. It requires the state to set up a regime of random drug testing for all state employees, everybody. Presently, before the governor signed this order, there is a system already in place that deals with employees for whom there's a reasonable suspicion that they're abusing drugs. The state can deal with that. It can discipline the employee, it can drug test the employee. The state's been able to do that for 20 years. There's also a system in place for mandatory drug testing of employees in safety sensitive positions where there's a concrete danger of real harm. The state has had that ability to drug test for 20 years now, or more."
"What the governor's order does, believe it or not, is it makes mandatory drug testing for all state employees under the purview of the governor. That's the little old lady in the back file room at the Department of Citrus or the secretary at the Department of Health neither of whom have ever abused drugs, will never abuse drugs, and about whom there's never been a whiff of suspicion or probable cause that they abused drugs. So this governor says 'we want to test everybody regardless of whether there's reasonable suspicion or not."
"The AFSCME union that represents more than 50,000 people, state employees, who are subject to this executive order, are upset because this violates their worker's Fourth Amendment right to be free from unreasonable government searches. It's "Black Letter" law. Drug testing is a search under the Fourth Amendment and random drug testing which is, in other words, without any suspicion, without any probable cause whatsoever, of the grandmother file clerk in the Department of Citrus, under the Fourth Amendment that is blatantly unconstitutional. The government cannot invade someone's privacy to conduct a search when the government doesn't have a single particularable suspicion that the person is abusing drugs. And that, in a nutshell, is where we are."
One of the things that Governor Scott mentioned in his executive order is that he's doing this to protect public safety. What do you think about that argument?
"I'd like to hear more about that argument. I think, by the way, he sort of mentions public safety in passing. I think more prominent in the order are the other reasons that he has signed this order. Reasons of trying to impose control over state employees. He talks about 'it'll boost morale'. He talks about it'll lessen workplace absenteeism, he says it will increase productivity, well unfortunately none of those is legitimate ground under federal Constitutional law to violate the Fourth Amendment. Public safety, he throws in the public safety, he pays it lip service but, as I said, there's already a drug testing plan in place for employees in safety sensitive positions. Employees who work in places where there's a concrete risk of real harm. Those people are tested and have been tested for two decades."
Critics would say, 'what's the big deal?' of random drug testing if an employee doesn't use illegal drugs they won't be harmed, if an employee does maybe the state should know about it. How would you respond?
"I'd say, 'easy for you to say'. I don't know if you've ever been drug tested but let me read you what I think drug testing is. It'll take me just 20 seconds, bear with me."
" Employee drug testing by urinalysis is particularly destructive of privacy. It's offensive to personal dignity. It's demeaning. It's a needless indignity, it's an invasion of privacy, it's an affront to dignity."
" Those descriptions of employee drug testing aren't my words, they're not the ACLU's words, they're not AFSCME's words or Richard Flamm's words. Those are the words of Justice Anthony Scalia of the Supreme Court of the United States describing how profound an invasion of privacy urine testing is. It's not something that people, about whom we have no reasonable suspicion of drug abuse, it's not something that they ought to be subjected to under any circumstances."
"And you talk about a tremendous waste of money. I'm just looking at this from a Constitutional standpoint as a lawyer, I'm not looking at the money this is going to cost the state, but does it make sense when you've already got these safeguards in place to prevent drug abuse in the state, does it make sense to test a little old lady in the back stock room? It's staggering, it does not make sense. You're absolutely right, there are some employees who might say, 'look, I don't have anything, I don't mind it". But guess what? Try getting the call from your boss who says, 'Joe, have you had your coffee yet? Step into my office and step behind the curtain, I want to listen to you pee.' It sounds absurd but that's what urine testing, how it's done. And it's insulting, humiliating, and it's a tremendous waste when you've already got this system in place for dealing with this."
Finally, Peter Walsh, what do you think the chances are of winning this lawsuit, are there precedents that are on your side?
"That's going to be up to our judge. If you read the lawsuit it's clear that we are very confident that the law is on our side. Rarely do we lawyers have such clear, cut and dried, precedent right on point and in my lawsuit I actually cite to those cases. Cases like the Yvonne Robb case from 1989. Skinner, the companion case to the Yvonne Robb case and Chandler. All three talking about employee drug testing right on point. We think the law is on our side."
Listen here to the Last Call call-in show about this issue