Third Circuit Upholds Random Drug Testing for Public Employees in “Safety -Sensitive” Positions

Mollo v. Passaic Valley Sewerage Comm’rs, 2011 WL 167266 (3d Cir., January 20, 2011) – The plaintiff, a landscaper at the defendant’s New Jersey facility, was terminated after he failed a random drug test administered to all employees in safety-sensitive positions. The plaintiff sued his employer claiming that the random testing policy violated the New Jersey Constitution’s prohibition against unreasonable search and seizure. The Third Circuit held summary judgment for the employer was appropriate, noting that the New Jersey Supreme Court permits suspicionless drug testing of public employees when there is: 1) a diminished expectation of privacy; 2) adequate limitations on the testing’s intrusiveness; and 3) a compelling government interest in the employee’s safe conduct. The court emphasized that a lack of regulation to which an employer may be subject does not in itself determine the employee’s expectation of privacy. The safety concerns associated with a particular type of employment must be considered, as they also diminish the expectation of privacy, especially where the employee is well aware of the risks. Although the plaintiff was a landscaper, he was required to use vehicles and motorized equipment with dexterity and good judgment, and failure to do so could have resulted in significant property damage, injury or death.