On February 6, 2017, the Tenth Circuit Court of Appeals ruled that Wyandotte County, Kansas, did not violate the U.S. Constitution by discharging an employee in a safety-sensitive position after he tested positive for cocaine in a random drug test. The court found that the random drug test was not an unreasonable search because the plaintiff’s interaction with children outweighed his individual privacy interest. It also found that the county’s drug testing and human resources policies did not create a protected property interest in continued employment or an implied contract. Washington v. Unified Government of Wyandotte County, Kansas, No. 15-3181.
Roberick Washington worked at the Wyandotte County Juvenile Detention Center as a lieutenant, a position that required some interaction with juvenile inmates and was classified as “safety sensitive.” In 2012, he tested positive for cocaine in a random urine test and was discharged.
The Unified Government of Wyandotte County, Kansas, employs random drug testing for those in safety-sensitive positions. The county’s policy states that “failure to pass a drug or alcohol test is just cause for discipline including discharge,” but it also states that discipline must be administered in compliance with the human resources (HR) guide. The HR guide recommends a suspension for first-time drug offenses, though it states that it “does not modify the status of employees as employees-at-will or in any way restrict the Unified Government’s right to bypass the disciplinary procedures suggested.”
Washington filed suit contending that the drug test was an unreasonable search under the Fourth Amendment of the U.S. Constitution, that he was unconstitutionally deprived of his property interest in continued employment, and that Wyandotte County had breached an implied contract created by the drug testing policy and HR guide, among other things. The district court granted summary judgment to Wyandotte County on every claim.
The Tenth Circuit’s Decision
The Tenth Circuit affirmed the district court’s grant of summary judgment. The court first determined that the county’s random drug testing was not an unreasonable search, finding that the nature of Washington’s safety-sensitive position outweighed his individual privacy interests. It noted, however, that the government’s interest might not be applicable to all employees in correctional facilities (such as those who do not interact with or have contact with inmates).
Next, the Tenth Circuit addressed the issue of whether Washington had a protected property interest in continued employment and had been deprived of this interest without due process by being discharged instead of suspended, as the HR guide recommended. The Tenth Circuit found that the Wyandotte drug testing policy and HR guide did not create such a property interest, pointing to the fact that the HR guide expressly stated both that it did not alter an employee’s at-will status and that other discipline could still be appropriate. In reaching this conclusion, the court relied on the fact that Kansas law requires strict standards to deviate from at-will employment and that “[p]ersonnel policies alone are insufficient to create an implied employment contract.”
Finally, the Tenth Circuit rejected Washington’s state law breach-of-contract claim. Washington had argued that the county had breached an implied contract created by the drug testing policy and HR guide. Because the guide expressly stated that discipline exceeding its recommendations did not violate the policy and due to the fact that personnel policies cannot alone create employment contracts under Kansas law, the court affirmed summary judgment on this claim.
The Washington case reaffirms the legitimacy of random drug testing by pubic employers for safety-sensitive positions. A note of caution is warranted, however, as the court appeared to invite a narrow definition of “safety-sensitive.” The case may also serve as an important reminder that drug-testing policies should be harmonized with employee handbooks and other policies to eliminate any ambiguity over the repercussions of failing a drug test.