When a friend of mine mentioned having to consent to a section of her hair being cut off to be drug-tested for a job she was applying for, I couldn’t believe employers were going so far! It’s one thing to give a little urine to be drug-tested for a job—even that is viewed as excessive by certain organizations—but it’s quite another to give your hair or blood!
This, however, turns out to be a common practice, particularly for pre-employment screening, though urine tests remain the most common form of drug-screening in the Bay Area. In fact, some of the most prominent corporations in Berkeley themselves—including Bayer, PowerBar, and Staples, to name a few—conduct pre-employment drug tests.
So why drug-test?
Some employers argue that periodical drug-screening is vital to ensure that employees are able to perform their jobs well and that they are not endangering their co-workers or customers.
Opinions diverge, however. One Berkeley student said: “I think as long as you are able to perform your job well, what you do on your own time shouldn’t be a problem.”
When asked about the legitimacy of drug-screening policy, Dr. Jennifer Cheng, the associate director of the Senior Patent Counsel at MAP Pharmaceuticals and a Cal alumna explained that it wasn’t such a simple issue:
“The question of whether or not employment drug screening is encroaching on individual privacy would depend on a balancing of individual privacy and the needs of the company. I think we must take into consideration the nature of the job the employee performs for the company.”
But how does that relate to what employees choose do before or after work? We asked Dr. Cheng.
“In general, I think an employee is entitled to do whatever he or she would like during off work hours,” Dr. Cheng responded, agreeing with the Berkeley student on this point in particular. “As long as he or she is able to perform his or her job well (off-work activities do not impact work performance), the company really does not have a legitimate interest as to what that employee does during off-work hours.”
That being said, Dr. Cheng recognized that certain occupations require this “necessary intrusion” as she called it, particularly “if the employee performs a function for the company that requires the company to insure (or otherwise have a legitimate need to know). In these cases, the company has a legitimate interest and that legitimate interest would outweigh personal privacy.”
Dr. Cheng cited jobs where employees operate heavy machinery like company cars as an example of a legitimate need to know.
This would explain why AC Transit drivers are required to undergo drug-screening under the OTETA and FTA regulations, for example, but what about companies like Staples? Or companies that require hair drug-testing, which is clearly not designed to test an employee’s current state of mind or agency but his or her history of drug use to obtain a record of any alcohol or drug use within the 90 days prior? Is this legitimate in Berkeley?
The answer is yes.
Though the city of Berkeley adopted a resolution in 1988 prohibiting drug-testing for employees with the exception of certain government jobs on the basis that “this mandatory testing presupposes an employee’s guilt until proven innocent, and violates an employee’s constitutionally guaranteed right to privacy,” this resolution has since been revoked. This means that employers have the right to drug-screens prior to employment or anytime during employment regardless of the nature of the job.
The issue remains highly controversial, however, and one way to get involved in the debate is by staying informed on new regulations and contacting your city council member to make your voice heard.
- Action Memo from AC Transit <http://www.actransit.org/wp-content/uploads/board_memos/864dfc.pdf>
- Companies That Drug Test from TestClear <http://www.testclear.com/dtcompanies/companyresults.aspx?StateName=CA>
- Reasonable Suspicion, Post Accident and Use of Force Drug and Alcohol Testing from City of Berkeley <http://www.ci.berkeley.ca.us/citycouncil/2007citycouncil/packet/062607/2007-06-26%20Item%2038…>
- Resolution NO. 54,533-N.S. from City of Berkeley <http://www.ci.berkeley.ca.us/uploadedFiles/Clerk/Level_3_-_General/54533%20-%20Labor%20Bill%20of…>
Article by Amy Mostafa
Feature Image Source: HempMeds