NO NEED TO SIT AROUND THE BARGAINING TABLE: FLORIDA SUPREME COURT APPROVES SUSPICION-BASED DRUG TESTING OF POLICE OFFICERS

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1 NO NEED TO SIT AROUND THE BARGAINING TABLE: FLORIDA SUPREME COURT APPROVES SUSPICION-BASED DRUG TESTING OF POLICE OFFICERS Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So. 2d 31 (Fla. 1992). In June 1985, Sergeant Reynolds of Internal Security, a special unit of the Miami Police Department, received a report that an employee at Monty Trainer's, a restaurant and lounge in Coconut Grove, Florida, had positively identified a police officer as a man he had seen earlier snorting cocaine in the restroom. 1 As a result, the Miami Police Department ordered the officer to submit to urinalysis. 2 The officer refused to take the test and was relieved of duty. 3 During the same month, an anonymous tip implicated two other police officers in drug purchases and resulted in the officers' submissions to drug tests. 4 Before ordering the drug tests, Sergeant Reynolds verified the eyewitness' story with corroborating evidence. 5 His investigation revealed that the police vehicle reportedly seen by the caller was issued to the two officers who regularly patrolled the area where the incident occurred. 6 Further, the two officers met the 1. These facts are taken from the court's opinion and the briefs submitted by the parties. Fraternal Order of Police, Miami Lodge 20 v. City of Miami (FOP), 571 So. 2d 1309, 1311 (Fla. 3d DCA 1989); Answer Brief of Appellee at 2, Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So. 2d 31 (Fla. 1992) (No ). 2. FOP, 571 So. 2d at Id. The officer later submitted to a test administered by his personal physician. Answer Brief of Appellee at 2, FOP (No ); FOP, 609 So. 2d 31, 32 (Fla. 1992). The City of Miami did not accept the drug test administered by the physician. FOP, 609 So. 2d at Answer Brief of Appellee at 2, FOP (No ). A telephone call from an anonymous caller accusing the two officers of buying drugs precipitated the testing orders. According to the eyewitness, a uniformed black male police officer with a curly perm haircut left police car 188 and approached a black male sitting on a porch. The two men shook hands, and the officer gave money to the other man. In return, the officer received several small envelopes, the type in which marijuana is commonly placed. The officer then returned to his vehicle where his partner, a uniformed white male officer, was waiting. Answer Brief of Appellee at 3, FOP (No ); FOP, 571 So. 2d at Answer Brief of Appellee at 3-4, FOP (No ). 6. Id. at 3.

2 238 Stetson Law Review [Vol. XXIII eyewitness' physical descriptions. 7 Upon the union's advice, the two officers submitted to the drug tests under protest. 8 The tests indicated the officers had not used drugs, and therefore, the police department did not discipline the officers. 9 The union representing the officers, the Fraternal Order of Police, Miami Lodge 20, filed unfair labor practice charges against the City of Miami (City) in a complaint to the Public Employees Relations Commission (PERC). 10 The union sought injunctive relief, claiming that the City had failed to bargain for compulsory drug testing and had interfered with the employees' rights. 11 The PERC hearing officer noted that compulsory drug testing, as a condition of the officers' continued employment, requires mandatory collective bargaining pursuant to Florida Statutes, section (1). 12 However, the hearing officer concluded that the City had not committed an unfair labor practice since the union had waived its right to bargain over drug testing. 13 The hearing officer reasoned that when the union agreed that the City would have the right to establish, implement and maintain an effective internal security program, the union waived its right to bargain over drug testing. 14 On appeal, PERC issued a majority opinion which, contrary to the hearing officer's ruling, stated that the union had not clearly waived its right to collectively bargain over drug testing and found that the City had committed an unfair labor practice. 15 PERC 7. Id. The officers' worksheets for the day placed them in the area of the drug buy at the appropriate time. The area of the city where the alleged drug incident occurred is known for its heavy drug use. Id. 8. FOP, 571 So. 2d at FOP, 609 So. 2d at FOP, 571 So. 2d at The PERC is composed of a chairman and two fulltime members appointed by the Governor and confirmed by the Senate. The PERC is empowered to resolve questions and controversies concerning claims for recognition as the bargaining agent for a bargaining unit, determine or approve units appropriate for purposes of collective bargaining, [and] expeditiously process charges of unfair labor practices.... FLA. STAT (1) (1991). 11. FOP, 571 So. 2d at Id. See infra note 30 and text accompanying notes FOP, 571 So. 2d at Id. at The hearing officer noted that this was not a customary or usual provision in the standard management clause. FOP, 609 So. 2d at FOP, 571 So. 2d at The dissenting commissioner found the urinalysis ordered under these facts to be a managerial prerogative since the City of Miami has an overwhelming interest in the integrity of its law enforcement personnel. FOP, 609 So. 2d at 33 (citing Fraternal Order of Police, Miami Lodge 20 v. City of Miami, No. CA

3 1993] Drug Testing 239 ordered the City to cease and desist from unilaterally requiring police officers to submit to drug testing and directed the reinstatement of the three officers. 16 The Florida Third District Court of Appeal, in a panel decision, upheld PERC's order. 17 However, the court later accepted the cause for en banc consideration and entered a majority opinion vacating their original decision. 18 The en banc court held that drug testing in these circumstances falls within the City's managerial prerogative, 19 and thus, such testing is not a subject of mandatory collective bargaining. 20 Noting that compulsory drug testing of police officers raises difficult questions and citing a lack of Florida Supreme Court precedent on the issue, the en banc court certified the following question to the Florida Supreme Court as a matter of great public importance: AS PRESENTED BY THE FACTS IN THIS CASE, IS THE COMPULSORY DRUG TESTING OF POLICE OFFICERS A MANDATORY SUBJECT OF COLLECTIVE BARGAINING OR, IN THE ALTERNATIVE, MAY A GOVERNMENTAL ENTITY REQUIRE ITS POLICE OFFICERS TO SUBMIT TO DRUG TESTING WITHOUT HAVING FIRST ENTERED INTO COLLECTIVE BARGAINING REGARDING THE SUBJECT? 21 The Fraternal Order of Police, Miami Lodge 20 v. City of Miami (FOP) case presented the Florida Supreme Court with the opportunity to decide, for the first time, whether a public employer can unilaterally require employees to submit to drug tests when there is suspicion that the employees used drugs. HELD: Drug testing in the circumstances presented in FOP is not a subject of mandatory collective bargaining because such testing falls within (Pub. Empls. Rels. Comm'n Dec. 11, 1985) (Order No. 85U-287, at 18)). A managerial prerogative is an item over which management may unilaterally implement policy, even though the item may have an impact on employees. See Amalgamated Transit Union Int'l, AFL-CIO v. Donovan, 767 F.2d 939, 953 (D.C. Cir. 1985). 16. FOP, 609 So. 2d at Id. 18. Id. 19. See infra text accompanying notes for a discussion of public employers' decisionmaking powers. 20. FOP, 571 So. 2d at The en banc court found that the interests of the City and the public in ensuring the right to a drug-free police force outweigh the interests of the FOP in negotiation.... Id. 21. Id. at 1333.

4 240 Stetson Law Review [Vol. XXIII the managerial prerogative of the City of Miami. 22 The FOP decision is significant because the Florida Supreme Court recognized that, in some circumstances, public employers may require employees to submit to drug tests without collective bargaining. In FOP, the Florida Supreme Court adopted a balancing test, weighing the employees' privacy interests against the employer's interest in providing public safety, to determine whether collective bargaining over drug testing is required. 23 More specifically, the FOP decision demonstrates that when drug testing is based on reasonable suspicion of drug use, employers may constitutionally order employees to undergo drug tests without first conducting a collective bargaining session with the employees. Thus, this decision opens the door for public employers to implement drug testing programs that withstand scrutiny under the United States and Florida Constitutions. However, in FOP, the Florida Supreme Court failed to emphasize that drug testing programs must be based on individual suspicion of drug use and must promote a governmental interest of the highest order to withstand scrutiny under the Fourth Amendment of the United States Constitution. 24 The FOP decision is also significant because it may break ground for future courts to uphold unconstitutional drug testing programs that are not based on individual suspicion of drug use and do not promote a compelling government interest. First, this Note briefly explains how subjects are deemed managerial prerogatives over which employers may unilaterally dictate to employees without collective bargaining. The discussion then turns to a summary of the relevant statutory and constitutional provisions regulating collective bargaining and searches and seizures. The Note introduces the balancing test applied by the United States Supreme Court to determine whether a public employer's interest in achieving its goals outweighs the employees' privacy interests. A summary and critical analysis of the Florida Supreme Court's decision in FOP shows that the court correctly weighed an individual police officer's right to be free from drug testing against management's right to ensure public safety in 22. FOP, 609 So. 2d 31, 35 (Fla. 1992). 23. See infra text accompanying notes See infra notes and accompanying text.

5 1993] Drug Testing 241 The National Labor Relations Act aimed to achieve industrial peace by alleviating work-related strife by providing for collective organization of employees. The NLRA's statement of purpose includes a specific commitment to enhancing the bargaining power of workers, allowing workers to improve their purchasing power and working conditions. Specifically, the NLRA chose the vehicle of collective bargaining to enhance worker satisfaction because it promotes democracy by way of participatory management; promotes worker self-actualization by affording workers control over their work environment; and promotes efficiency and productivity by preventing feelings of alienation among workholding that mandatory drug testing is constitutional when there is reasonable suspicion that an officer has used drugs. However, this Note concludes that the FOP court's decision did not address all relevant constitutional limitations on drug testing of public employees. This Note explains that because drug testing implicates constitutional protection under the Fourth Amendment, Florida courts must ensure that government drug tests promote a compelling interest before allowing the government to infringe on employees' fundamental privacy rights. Finally, in recognizing the Fourth Amendment limitations, this Note emphasizes that Florida courts must refrain from expanding the Florida Supreme Court's narrow holding in FOP by approving drug tests that infringe on public employees' privacy rights absent a compelling government interest. I. HISTORICAL OVERVIEW A. Public Sector Labor Law Public sector labor law in Florida is modeled after private sector labor law and public sector labor law of other jurisdictions. Florida's Public Employees Relations Act (FPERA) 25 shares with the private sector's National Labor Relations Act (NLRA) 26 a goal to promote harmonious and cooperative relationships between government and its employees, both collectively and individually In both pri- 25. Florida's labor statute, FPERA, is codified at FLA. STAT (1979). 26. [T]he National Labor Relations Act declares the policy of the United States to protect commerce `by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment....' Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 163 (1971) (quoting 49 Stat. 449, as amended, 29 U.S.C. 151 (1982)). 27. Palm Beach Junior College Bd. of Trustees v. United Faculty of Palm Beach Junior College, 475 So. 2d 1221, 1227 (Fla. 1985) (quoting FLA. STAT (1979)).

6 242 Stetson Law Review [Vol. XXIII vate and public sector labor law, employers strive to achieve workplace satisfaction for management and employees. Largely, this is accomplished through collective bargaining. 28 However, since 1935, employers have sought to limit the field of subjects over which they must collectively bargain with employees under the Florida Statutes. 29 B. Florida Statutes Require Collective Bargaining Florida recognizes that public employers are required to bargain over wages, hours, and terms and conditions of employment with employees. 30 Unless there is an impasse action, 31 a waiver, or an ers and thus, preventing inefficiency in the workplace. Marion Crain, Expanded Employee Drug-Detection Programs and the Public Good: Big Brother at the Bargaining Table, 64 N.Y.U. L. REV. 1286, (1989) (citing NLRA, 29 U.S.C. 151 (1982)). 28. Collective bargaining occurs when the employer and employee representatives engage in negotiations over relevant employment issues. [T]he purpose of collective bargaining is to produce an agreement and not merely to engage in talk for the sake of going through the motions.... `The requirement to bargain collectively is not satisfied by mere discussion of grievances with employees' representatives. It contemplates the making of agreements between employer and employee which will serve as a working basis for the carrying on of the relationship.' Westinghouse Elec. Corp. v. NLRB, 387 F.2d 542, 550 (4th Cir. 1967) (quoting NLRB v. Highland Park Mfg. Co., 110 F.2d 632, 637 (4th Cir. 1940)). 29. Crain, supra note 27, at FLA. STAT (1) (1991). This section provides in part: [T]he bargaining agent for the organization and the chief executive officer of the appropriate public employer or employers, jointly, shall bargain collectively in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit. The chief executive officer or his representative and the bargaining agent or its representative shall meet at reasonable times and bargain in good faith. No definition of the phrase wages, hours, and terms and conditions of employment is provided to determine what constitutes a mandatory bargaining item. City of Orlando v. Public Employees Relations Comm'n, 435 So. 2d 275, 278 (Fla. 5th DCA 1983), review denied, Orange County Police Benevolent Ass'n v. City of Orlando, 443 So. 2d 980 (Fla. 1983). This section is interpreted to require a relatively broad scope of negotiations since there is no statutory procedure afforded to the public employee to bring pressure upon an employer to make concessions in collective bargaining. Thus, this section provides a means of allaying... [the] imbalance of bargaining power in favor of the employer. Palm Beach Junior College Bd. of Trustees v. United Faculty of Palm Beach Junior College, 425 So. 2d 133, 140 (Fla. 1st DCA 1983), modified, 475 So. 2d 1221 (Fla. 1985). 31. Impasse procedures, as described by one Florida court, are as follows: If a dispute exists, either party may declare an impasse. The parties may then agree to hire a mediator. If no mediator is appointed, either party may request PERC to appoint a special master, who makes findings of fact and renders a decision on disputed issues. If either party rejects any part of the special master's recommendation, the chief executive officer of the

7 1993] Drug Testing 243 emergency, a public employer may not unilaterally alter a subject of mandatory collective bargaining. 32 If an employer unilaterally alters a term or condition of employment, the employer commits an unfair labor practice. 33 If the altered term or condition is not specifically contained in the collective bargaining agreement, but is impliedly part of the status quo of the employment relationship, the employer should not unilaterally alter it. 34 The first inquiry in determining whether the employer may alter the status quo is whether the subject impacts or affects the employees' wages, hours, or terms and conditions of employment. 35 Florida courts have not developed a precise test for determining which subjects are considered wages, hours, and terms and conditions of employment under the Florida statute. 36 However, other state and federal courts have enunciated various tests. 37 In construing the relevant language of section 8(d) of the NLRA, 38 which is public employer and the union each submit recommendations regarding the dispute to the legislative body governing the public employer. After a public hearing, `the legislative body shall take such action as it deems to be in the public interest, including the interest of the public employees involved, to resolve all disputed impasse issues.' (4)(d). A contract is prepared, signed by the chief executive officer, and presented to the union for a ratification vote. Palm Beach Junior College, 475 So. 2d at 1223 n.2 (discussing FLA. STAT (Supp. 1980)). 32. City of New Port Richey v. Hillsborough County Police Benevolent Ass'n, 505 So. 2d 1096, 1097 (Fla. 2d DCA 1987), review denied, Hillsborough County Police Benevolent Ass'n v. City of New Port Richey, 518 So. 2d 1275 (Fla. 1987). 33. Id. at 1097 (citing FLA. STAT (1)(a) and (c) (1983)). See also Central Fla. Prof. Fire Fighters, Local 2057 v. Board of County Comm'rs of Orange County, 9 FPERA 14372, Nov. 14, New Port Richey, 505 So. 2d at 1097 (citing School Bd. of Orange County v. Palowitch, 367 So. 2d 730, 732 (Fla. 4th DCA 1979)). 35. Id. at In New Port Richey, the court held that since the subject, reducing employees' contributions to the employee retirement plan, did not impact or change employees' rights or obligations under the plan, the public employer was not required to bargain. Id. It is well established that public employers are not only required to bargain over wages, hours, and terms and conditions of employment, but also over any other issues that have an impact on wages, hours, or terms and conditions of employment. Hillsborough Classroom Teachers Ass'n v. School Bd. of Hillsborough County, 423 So. 2d 969, 970 (Fla. 1st DCA 1982). 36. City of Orlando v. Public Employees Relations Comm'n, 435 So. 2d 275, 278 (Fla. 5th DCA 1983), petition denied, Orange County Police Benevolent Ass'n v. City of Orlando, 443 So. 2d 980 (Fla. 1983). 37. See infra text accompanying notes Section 8(d) of the NLRA imposes on the employer and the representative of the employees the duty to bargain in good faith with respect to wages, hours, and other terms and conditions of employment.... (codified at 29 U.S.C.A. 158(d)). See supra

8 244 Stetson Law Review [Vol. XXIII identical to the questioned language quoted above from the Florida statute, 39 the United States Supreme Court declared that an issue is the subject of mandatory bargaining if it settle[s] an aspect of the relationship between the employer and employees. 40 Similarly, the United States Court of Appeals for the Fourth Circuit stated that in determining whether a given matter should be deemed a mandatory bargaining subject... [we recognize] a legal distinction between those subjects which have a material or significant impact upon wages, hours, or other conditions of employment, and those which are only indirectly, incidentally, or remotely related to those subjects. 41 More recently, the United States Court of Appeals for the District of Columbia determined that since the phrase terms and conditions of employment 42 does not outline a specific list of mandatorily bargained subjects, courts must use a case-by-case approach to determine when bargaining is mandatory. 43 Courts recognize that some subjects may impact or affect employees' wages, hours, or terms and conditions of employment and still fall outside the group of mandatory subjects for collective note 26 for a brief description of the NLRA. 39. See supra note 30 for the text of the relevant Florida statute. 40. Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate & Glass Co., 404 U.S. 157, 178 (1971). The Court said that retirees' benefits are not a subject of mandatory bargaining because the collective bargaining obligation extends only to the terms and conditions of employment of the employer's employees. Id. at 179. The Court further stated that retirees are not employees within the meaning of 8(d) of the NLRA. Id. at Westinghouse Elec. Corp. v. NLRB, 387 F.2d 542, 547 (4th Cir. 1967). The court concluded that it was not the intent of Congress in enacting the National Labor Relations Act to sweep every act by every employer within the ambit of `conditions of employment.' Thus, the court held that Westinghouse was not required to hold a collective bargaining session with the employees about prices charged by an independent caterer because [w]e find in this case no condition of employment which is a subject of mandatory bargaining. Id. at In this case, the D.C. Circuit Court of Appeals was construing 8(d) of the National Labor Relations Act, 29 U.S.C. 158(d). 43. International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. NLRB, 470 F.2d 422, 425 (D.C. Cir. 1972) (holding that the decision made by the manufacturer to convert a self-owned and operated retail outlet into an independently owned and operated franchise dealership is not a subject for mandatory bargaining because such a decision is fundamental to the basic direction of a corporate enterprise ). See also Detroit Police Officers Ass'n v. City of Detroit, Police Dep't, 233 N.W.2d 49, 54 (Mich. Ct. App. 1975) (stating that [t]here is no doubt that promotional standards and criteria `vitally affect' the terms and conditions of employment for [the Detroit Police Officers Association] members ).

9 1993] Drug Testing 245 bargaining. 44 An employer may argue that an item is not an appropriate subject for collective bargaining because the item is a managerial prerogative. 45 In Fibreboard Paper Products Corp. v. NLRB, 46 the Supreme Court noted that employers have certain rights to make decisions which are consistent with the employers' roles such as directing employees, taking disciplinary action for proper cause, and relieving employees from duty for legitimate reasons. 47 Similarly, in construing Florida Statutes, section (1), the Florida First District Court of Appeal acknowledged that management must exclusively retain certain decisions, either because they are fundamental to the basic direction of a corporate enterprise or because they impinge indirectly on employment security. 48 Usually, however, a disputed item is not clearly or entirely a managerial prerogative excluded from collective bargaining. Instead, most disputed subjects simultaneously affect a term and condition of employment over which employees want to collectively bargain and constitute managerial prerogatives over which employers want to unilaterally implement policy. When a disputed item both affects the wages, hours, or terms and conditions of an employee's contract and is a management prerogative, courts apply a balancing test to determine whether the item is subject to mandatory collective bargaining under Florida statutory law. 49 Although jurisdictions 44. See Pennsylvania Labor Relations Bd. v. State College Area School Dist., 337 A.2d 262, 268 (Pa. 1975). [W]e hold that where an item of dispute is a matter of fundamental concern to the employe[e]s' interest in wages, hours and other terms and conditions of employment, it is not removed [from mandatory collective bargaining] simply because it may touch upon basic policy. It is the duty of the Board in the first instance and the courts thereafter to determine whether the impact of the issue on the interest of the employe[e] in wages, hours and terms and conditions of employment outweighs its probable effect on the basic policy of the system as a whole. Id. 45. See Crain, supra note 27, at U.S. 203 (1964). 47. Id. at Palm Beach Junior College Bd. of Trustees v. United Faculty of Palm Beach Junior College, 425 So. 2d 133, (Fla. 1st DCA 1983), modified, 475 So. 2d 1221 (Fla. 1985) (affirming the result) (quoting Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 223 (1964)). The district court enforced PERC's determination that, while a public employer is free to alter the semester system, it was obliged under Florida's Public Employees Relations Act (PERA)... to negotiate with the union about the resulting effect on `wages, hours, and terms and conditions of employment.' 475 So. 2d at See First Nat'l Maintenance Corp. v. NLRB, 452 U.S. 666 (1981) (applying a balancing test to determine whether collective bargaining was mandatory). [I]n view of

10 246 Stetson Law Review [Vol. XXIII differ in their exact treatment, courts weigh the employee's interest in bargaining over the wages, hours, or terms and conditions of employment against the employer's interest in implementing policy unilaterally. 50 C. Florida Constitution Mandates Collective Bargaining As declared in the Florida Constitution, the right to bargain collectively is a fundamental right. 51 Thus, a public employee's right an employer's need for unencumbered decisionmaking, bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business. Id. at See generally NLRB v. Plymouth Stamping Div., Eltec Corp., 870 F.2d 1112, 1115 (6th Cir. 1989), cert. denied, 493 U.S. 891 (1989) (quoting First Nat'l, 452 U.S. at 679 (1981)) ( [I]n view of an employer's need for unencumbered decisionmaking, bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business. ); Georgetown-Ridge Farm Community Unit Sch. Dist. No. 4, Vermillion County v. Illinois Educ. Labor Relations Bd., 606 N.E.2d 667, 684 (Ill. App. Ct. 1992) (quoting LeRoy Community Unit Sch. Dist. No. 2 v. Illinois Educ. Labor Relations Bd., 556 N.E.2d 857, 866 (Ill. App. Ct. 1990)) ( If the management policy has a direct effect on the work force, the agency must balance the interests of management with the interests of the work force. ); Local 346, Int'l Bhd. of Police Officers v. Labor Relations Comm'n, 462 N.E.2d 96, 102 (Mass. 1984) (quoting City of Boston, 5 M.L.C. 1723, 1726 (1979)) ( Only if [a subject's] impact on terms and conditions of employment outweighs its impingement on core managerial prerogatives or concerns will the [subject] be deemed mandatorily bargainable. ); Tualatin Valley Bargaining Council v. Tigard Sch. Dist. 23J, 840 P.2d 657, 660 n.4 (Or. 1992) (citing Sutherlin Educ. Ass'n v. Sutherlin Sch. Dist., 548 P.2d 204 (Or. Ct. App. 1976)) (Mandatory bargaining is determined by weighing the element of inherent management right involved concerning the subject against the effect that the subject has on a worker's employment. Where a subject has a greater effect on management's rights, that subject is not a condition of employment and is not a mandatory subject for collective bargaining.). 51. Hillsborough County Gov't Employees Ass'n v. Hillsborough County Aviation Auth., 522 So. 2d 358, 362 (Fla. 1988). The Florida Constitution's Right to Work provision provides: The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike. FLA. CONST. art. I, 6. In Dade County Classroom Teachers' Ass'n, Inc. v. Ryan, the Florida Supreme Court explained that, with the exception of the right to strike, public employees have the same rights of collective bargaining as are granted to private employees.... Ryan, 225 So. 2d 903, 905 (Fla. 1969) (construing article I, 6 of the Florida Constitution). See also Dade County Classroom Teachers Ass'n v. Legislature, 269 So. 2d 684, 687 (Fla. 1972)

11 1993] Drug Testing 247 to bargain may not be abridged except upon the showing of a compelling state interest. 52 This strict scrutiny standard is especially difficult to meet. 53 Before unilaterally implementing workplace policies, the government must always strive to find less intrusive alternatives for accomplishing its goals without infringing on the employee's right to bargain over workplace policies. An employer may abridge the employee's collective bargaining rights only if there are no less restrictive means available. 54 D. Fourth Amendment Proscribes Unreasonable Searches The Fourth Amendment to the United States Constitution guarantees to all persons the right to be free from unreasonable searches and seizures. 55 In Skinner v. Railway Labor Executives' Ass'n, 56 the United States Supreme Court stated that a governmentally compelled urine test is a search and seizure for constitutional purposes. 57 In drug testing cases, courts must determine the issue of (reaffirming Ryan). Following Ryan, however, Florida courts have recognized on more than one occasion that the public sector collective bargaining process need not be identical to that of the private sector. City of Tallahassee v. Public Employees Relations Comm'n, 410 So. 2d 487, (Fla. 1981); Pinellas County Police Benevolent Ass'n v. Hillsborough County Aviation Auth., 347 So. 2d 801, 803 (Fla. 2d DCA 1977). 52. Hillsborough, 522 So. 2d at See, e.g., Hillsborough, 522 So. 2d at 363 (holding that in the absence of a compelling state interest an impediment upon a fundamental right cannot be sustained ). 54. Hillsborough, 522 So. 2d at The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV U.S. 602 (1989). In Skinner, the Court upheld Federal Railroad Administration regulations that required post-accident drug testing of railroad employees and permitted testing after rules violations, minor accidents, or upon suspicion of on-duty impairment. Id. at Id. at 617. The court stated: There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom. Id. (quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987), aff'd in part, vacated in part, 489 U.S. 656 (1989)). See also City of Palm Bay v. Bauman, 475 So. 2d 1322, 1324 (Fla. 5th DCA 1985) (recognizing that a compelled urine test is a search and seizure).

12 248 Stetson Law Review [Vol. XXIII whether the search and seizure was reasonable. Reasonableness depends on all circumstances surrounding the search and seizure. 58 Courts balance the intrusion of the individual's Fourth Amendment interests against the promotion of the government's interests when determining whether a warrantless search and seizure is permissible. 59 In Skinner, the Court recognized that reasonableness usually requires a warrant based upon probable cause. 60 In light of that finding, the Court also noted that exceptions are allowable when special needs render the normal process impracticable. 61 The Court recognized that the government's interest in regulating the conduct of railroad employees to ensure public safety presents a special need that justif[ies] departures from the usual warrant and probable cause requirements. 62 However, the Court noted the question that remained was whether the government's need to monitor the employees for drug use justifies the privacy intrusion absent a warrant. 63 The Skinner Court concluded that imposing a warrant requirement adds little to assure a drug-free work force and significantly hinders the government's ability to obtain its goals Skinner, 489 U.S. at 619 (citing United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)). 59. Id. (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)). In Bell v. Wolfish, 441 U.S. 520, 559 (1979), Justice Rehnquist said: [T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. See Laura A. Lundquist, Weighing the Factors of Drug Testing for Fourth Amendment Balancing, 60 GEO. WASH. L. REV (1992) (discussing inconsistent applications of the balancing test). 60. Skinner, 489 U.S. at Id. at 619. The Court said that the special need must be unrelated to a criminal prosecution. Id. 62. Id. at 620. The prescribed drug tests prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs. Id. at (quoting 49 C.F.R (a) (1987)). The Court explained that the government's interest in ensuring safety justifies prohibiting employees from using drugs on duty or while subject to being called for duty. Id. 63. Id. at 621. The Government's interest in dispensing with the warrant requirement is at its strongest when, as here, `the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.' Id. at 623 (quoting Camara v. Municipal Court of San Francisco, 387 U.S. 523, 533 (1967)). 64. Id. at 624. See supra text accompanying note 62.

13 1993] Drug Testing 249 The Court stated that employers must have probable cause to justify testing a particular person, even when the drug tests serve special government needs justifying searches without warrants. 65 According to Skinner, probable cause usually requires some quantum of individualized suspicion [of drug use] before concluding that a search is reasonable. 66 Moreover, drug testing based on individualized suspicion is reasonable according to the decisions of courts throughout the country in a variety of recent cases. 67 These cases note that a public employer has an interest in assuring that its employees abstain from drug use since drug use impairs job performance and puts the public at risk. 68 For example, in American Federation of Government Employees, AFL-CIO, Local 2391 v. Martin, Skinner, 489 U.S. at Id. (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976)). 67. See generally Division 241, Amalgamated Transit Union v. Suscy, 538 F.2d 1264 (7th Cir. 1976) (holding that municipal bus drivers have no reasonable expectation of privacy with regard to submitting to drug tests), cert. denied, 429 U.S (1976); Everett v. Napier, 632 F. Supp (N.D. Ga. 1986) (holding that drug use among firefighters could affect their fitness and performance and threaten the public's safety and welfare), aff'd in part, rev'd in part, 833 F.2d 1507 (11th Cir. 1987); Allen v. City of Marietta, 601 F. Supp. 482 (N.D. Ga. 1985) (stating that drug use by municipal utility employees whose work is extremely hazardous in nature threatens safety); Turner v. Fraternal Order of Police, 500 A.2d 1005 (D.C. 1985) (stating that the police department has a paramount interest in protecting the public by ensuring that its employees are fit to perform their jobs); King v. McMickens, 501 N.Y.S.2d 679 (N.Y. App. Div. 1986) (holding that corrections officers who are reasonably suspected of using drugs may be dismissed from employment for refusing to undergo drug testing), aff'd, Perez v. Ward, 507 N.E.2d 296, 514 N.Y.S.2d 703 (N.Y. 1987). 68. See generally Everett v. Napier, 833 F.2d 1507, 1511 (11th Cir. 1987) (holding that the city has a compelling interest in having its firefighters free from drugs because the firefighters must be prepared to react and make decisions quickly in order to insure public safety); Amalgamated Transit Union, Local 993 v. City of Oklahoma City, 710 F. Supp. 1321, 1330 (W.D. Okl. 1988) (holding that there is no known safe level of drug metabolites in the urine and there is some relationship between a positive drug urinalysis test and impairment on the job); Penny v. Kennedy, 648 F. Supp. 815, 817 (E.D. Tenn. 1986) (holding that Chattanooga has a compelling interest in ensuring that the duties of firefighters and police officers are performed free of any risk of impairment by the use of illegal drugs), vacated, 915 F.2d 1065, 1067 (6th Cir. 1990); Turner v. Fraternal Order of Police, 500 A.2d 1005, 1008 (D.C. 1985) (holding that there must be a reasonable, objective basis to suspect that a urinalysis will produce evidence of an illegal drug use for the intrusion to be constitutionally acceptable); City of Palm Bay v. Bauman, 475 So. 2d 1322, 1326 (Fla. 5th DCA 1985) (holding that the City has a legitimate concern that police officers and firefighters not use drugs because their duties involve potential danger); Caruso v. Ward, 530 N.E.2d 850, 855 (N.Y. 1988) (holding that department has established a justifiable interest in the testing of special officers constituting its main line defense in the war against drug trafficking) F.2d 788 (9th Cir. 1992).

14 250 Stetson Law Review [Vol. XXIII the United States Court of Appeals for the Ninth Circuit ruled that because evidence of drug use implicated the employees who were ordered to submit to drug tests, the government's interest in ensuring safety outweighed the employees' privacy interests. 70 In applying this balancing test, courts try to accommodate the employees' privacy interests without unduly restricting the public employer's opportunity to monitor and control employee drug use. 71 In limited circumstances, if the privacy implications of the search are minimal, and requiring individualized suspicion would jeopardize the government's interests furthered by the search, a search may be reasonable even in the absence of suspicion. 72 In Skinner, the Court held that testing railroad workers absent individualized suspicion of drug use did not violate the Fourth Amendment because the government's compelling interest in public safety outweighed the minimal impairment of the workers' privacy interests. 73 The Court reasoned that the workers diminished their privacy interests by choosing to work in a field as closely regulated as the railroad industry. 74 In National Treasury Employees Union v. Von Raab, 75 the Court identified another instance of constitutionally sound testing absent individualized suspicion of drug use. The Court said that when the employees in question seek promotion to a position that makes them 70. Id. at 792. The [U.S. Department of Labor] plainly has an interest in preventing its public health and safety inspectors, nurses, drivers, and those in security sensitive positions from using illegal drugs on- or off-duty. Id. The court further held that this interest outweighs the employees' privacy interests infringed by the urinalysis testing. Id. at See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). The governmental interests in ensuring that frontline interdiction personnel are physically fit and have unimpeachable integrity and judgment, and in preventing the risk of life of the citizenry posed by the potential use of deadly force by persons suffering from impaired perception and judgment outweigh the privacy interests of those seeking promotion to such positions. Id. at Id. We think the Government's need to conduct the suspicionless searches required by the Customs program outweighs the privacy interests of employees engaged in drug interdiction, and of those who otherwise are requested to carry firearms. Id. 73. Skinner, 489 U.S. at 628. The Court reasoned that the government's interest in providing transportation safety to the public could not be adequately protected by testing based only on individualized suspicion. Id. 74. Id. at U.S. 656 (1989). In Von Raab, the Court upheld those parts of a Customs Service testing plan that mandated urinalysis of employees directly involved in drug interdiction and those required to carry firearms. Id. at 668.

15 1993] Drug Testing 251 likely to gain access to sensitive information, the government has a compelling interest in protecting the sensitive information and may drug test employees with access to this information even without individualized suspicion of drug use. 76 The Von Raab Court further indicated that the government's interest in maintaining the integrity of its work force justified testing of all Customs Service employees seeking transfers to positions involving interdiction of illegal drugs absent individualized suspicion. 77 As in Skinner, the Von Raab Court reasoned that individuals who accept jobs with the United States Customs Service subject themselves to close review of their personal lives and cannot legitimately claim to have a high expectation of job-related privacy. 78 In both cases, the Court held that the government's legitimate interest in ensuring public safety justified the suspicionless drug testing of certain employees Id. at However, the Court ultimately decided that the category of Customs employees, encompassing diverse positions such as accountants, baggage clerks, mail clerks, and messengers, was not narrowly tailored. The Court remanded this ambiguity to the United States Court of Appeals for the Fifth Circuit for clarification of the scope of employees subject to testing under this category. Id. at Id. at 672. See also American Fed'n of Gov't Employees Local 1533 v. Cheney, 944 F.2d 503 (9th Cir. 1991) (holding the Navy's random drug testing of civil employees constitutional because there was a compelling government interest in national security); Penny v. Kennedy, 648 F. Supp. 815, 817 (E.D. Tenn. 1986) (holding that police officers and firefighters have a decreased expectation of privacy), vacated, 915 F.2d 1065, 1067 (6th Cir. 1990); Turner v. Fraternal Order of Police, 500 A.2d 1005, 1008 (D.C. 1985) (holding that police officers have a decreased expectation of privacy). But cf. City of Palm Bay v. Bauman, 475 So. 2d 1322, 1325 (Fla. 5th DCA 1985) (holding that City's random drug testing of police officers and firefighters unconstitutional in the absence of reasonable suspicion of drug use); Caruso v. Ward, 506 N.Y.S.2d 789, (Sup. Ct. 1986) (holding that Patrolmen's Benevolent Association's drug testing program was not justified under the Fourth Amendment because it lacked individualized suspicion of drug use and no government compelling interest and reasoning that even though testing may deter drug use for the occasional abuser and may improve public confidence, testing not justified under these circumstances), rev'd, 530 N.E.2d 850 (N.Y. 1988). 78. Von Raab, 489 U.S. at Skinner, 489 U.S. at 624, 633; Von Raab, 489 U.S. at 677. In Von Raab, the Court emphasized that: Customs employees who may use deadly force plainly discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. We agree with the Government that the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force.... Because successful performance of their duties depends uniquely on their judgment and dexterity, those employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness. Von Raab, 489 U.S. at (quoting Caruso, 530 N.E.2d at ).

16 252 Stetson Law Review [Vol. XXIII In deciding whether drug testing is constitutional, the courts differentiate suspicion-based drug testing from suspicionless drug testing. Although the Court has not yet ruled on the constitutionality of suspicion-based drug testing, lower courts consistently have held that drug testing based on reasonable suspicion is constitutional. In McDonell v. Hunter, 80 the United States Court of Appeals for the Eighth Circuit stated that the government may enforce drug testing only where employees are chosen on the basis of a reasonable suspicion. 81 In Ford v. Dowd, 82 the same court held that drug testing is not based on reasonable suspicion when the employer decides to drug test a police officer solely based on anonymous phone calls and tips that the officer was involved with a known drug dealer. 83 To base drug testing on reasonable suspicion of drug use, the employer must allege existence of a reasonable inference that the employee used drugs. 84 Suspicionless drug testing may also be constitutional if the employer tests routinely, minimizing the intrusiveness and guarding against the arbitrariness of the testing. 85 Drug testing an employee only after the employee is involved in a railway accident, as in Skinner, or drug testing an employee only when the employee seeks promotion to a position involving sensitive information, as in Von Raab, are examples of routine drug testing programs. 86 Since routine test F.2d 1302 (8th Cir. 1987). 81. Id. at See infra text accompanying note 152 for the McDonell court's definition of reasonable suspicion F.2d 1286 (8th Cir. 1991), later proceeding, 772 F. Supp. 451 (E.D. Mo. 1991). 83. Id. at McDonell, 809 F.2d at Routine drug testing means testing as part of a regular medical examination with minimal intrusion on the employees' privacy interests. In routine testing, employees have notice far in advance and everyone must submit to an examination. City of Annapolis v. United Food & Commercial Workers, Local 400, 565 A.2d 672, 678 (Md. 1989) (citing National Treasury Employees Union v. Von Raab, 816 F.2d 170, 179 (5th Cir. 1987)). 86. In Von Raab, the United States Customs Service performed drug tests on all existing employees who applied for a transfer or promotion to positions involving drug interdiction, requiring handling of firearms, or giving access to classified information. Von Raab, 489 U.S. at Similarly, in Skinner, the Railway Labor Executive Commission drug tested railway workers only after the occurrence of a railroad accident. Skinner, 489 U.S. at 609. See supra notes and accompanying text for a discussion of Skinner and Von Raab.

17 1993] Drug Testing 253 ing does not infringe on employee privacy interests as much as unexpected testing, courts are more likely to approve such programs over random drug testing programs. 87 Random drug testing may also be constitutional in some instances. 88 In summary, even though courts distinguish between suspicion-based and suspicionless testing, it is only one relevant consideration in determining whether drug testing is constitutional. 89 The Court also differentiates between off-duty drug use and onduty drug use in determining whether drug testing of public employees is a reasonable search and seizure under the Fourth Amendment. In O'Connor v. Ortega, 90 the Court suggested that warrantless searches of ordinary public employees are justified only when a nexus to work responsibilities is shown. 91 Similarly, in 87. Random drug testing is testing imposed without individualized suspicion that a particular individual is using illegal drugs. Random testing includes either uniform-unannounced testing of every employee occupying a testing designated position or a statistically random sampling of individuals occupying testing designated positions based on neutral criterion, such as social security numbers. American Fed'n of Gov't Employees, Local 1616 v. Thornburgh, 713 F. Supp. 359, 363 n.5 (N.D. Cal. 1989). 88. See International Bhd. of Teamsters v. Department of Transp., 932 F.2d 1292, 1303 (9th Cir. 1991) (holding that random testing of commercial truck drivers is constitutional); Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989) (holding that suspicionless random testing of Department of Justice employees holding top secret national security clearances is constitutional), cert. denied, Bell v. Thornburgh, 493 U.S (1990); Guiney v. Roache, 873 F.2d 1557 (1st Cir. 1989) (holding that suspicionless random drug testing of city police is constitutional), cert. denied, 493 U.S. 963 (1989), later proceeding, 582 N.E.2d 523 (Mass. 1991); Policeman's Benevolent Ass'n of N.J. v. Township of Wash., 850 F.2d 133 (3d Cir. 1988) (holding that suspicionless random drug testing of city police is constitutional), cert. denied, 490 U.S (1989). But see Ford v. Dowd, 931 F.2d 1286, 1292 (8th Cir. 1991); McDonell v. Hunter, 809 F.2d 1302, 1308 (8th Cir. 1987) (holding that in the absence of uniform or systematic random selection of employees subject to drug testing, the government may enforce drug testing where employees are chosen only on the basis of a reasonable suspicion ). 89. Harmon, 878 F.2d at 489. In Harmon, the D.C. Circuit Court said that the random nature of the drug testing plan does not require the court to undertake a different analysis than the balancing test applied by the Supreme Court in Skinner and Von Raab. Certainly the random nature of the... testing plan is a relevant consideration; and, in a particularly close case, it is possible that this factor would tip the scales. Id U.S. 709 (1987), remanded, Ortega v. O'Connor, 817 F.2d 1408 (9th Cir. 1987). 91. Id. at In O'Connor, the Court in a plurality opinion approved warrantless searches of a doctor's office by state hospital officials. The Court opined, [i]n the case of searches conducted by a public employer, we must balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace. Id. at