Federal Court: Governor Scott’s Employee Drug Testing Mandate is Unconstitutional

ACLU and State Employee Union AFSCME Succeed in Protecting Privacy Rights of Tens of Thousands of State Workers

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CONTACT: (212) 549-2666; media@aclu.org

MIAMI – As a result of a federal legal challenge brought by the ACLU (ACLUFL) and the American Federation of State, County and Municipal Employees (AFSMCE), federal judge Ursula Ungaro signed an order yesterday blocking Governor Rick Scott’s executive order requiring random, suspicionless drug testing of state employees.

“The Governor can’t order the state to search people’s bodily fluids for no reason – the Constitution prohibits that sort of government intrusion,” said Howard Simon, Executive Director of the ACLUFL. “And the Governor can’t demand that people surrender their constitutional rights for the privilege of working for the state or receiving some other government benefit.”

The ACLUFL and AFCME challenged Scott’s March, 2011 Executive Order because it violated the Fourth Amendment which protects against unreasonable searches and seizures. Today’s ruling found that, consistent with other established court decisions, requiring drug testing of employees without individual suspicion of drug use or a demonstrated public safety need violates the Constitution.

“With her order today, Judge Ungaro has protected the privacy and personal dignity of tens of thousands of Florida’s best and brightest – our state workforce,” said Alma Gonzalez, Special Counsel of AFSCME Council 79, which brought the suit. “There never was any evidence that state employees used drugs more than any other group so this was a case of using hard working state employees to score political points.”

Governor Scott signed the testing order (No. 11-58) on March 22, 2011 and the ACLUFL and AFSCME filed the legal challenge just five weeks later on May 31, 2011. Just a few days later, on June 10, 2011 – just days after the suit was filed – Governor Scott retreated on his Order and issued a Memo suspending implementation of drug testing. The Governor’s June Memo did continue to authorize testing of employees in the Florida Department of Corrections.

“Today’s ruling is important because it reinforces the bright line which government may not cross,” said ACLU cooperating attorney Peter Walsh. “If the state is going to require a drug test as a condition of keeping your job, it needs to have a reason and simply being against drugs isn’t enough.”

In 2011, the Florida Legislature passed and Governor Scott signed a law requiring mandatory drug testing for applicants for temporary cash assistance. Like the Governor’s Executive Order, the law required testing of everyone regardless of suspicion. The ACLUFL challenged the law in 2011 and a federal court in Orlando blocked implementation of that law in September, 2011.

In 2004, the ACLUFL handled another case that struck down a similar, suspicionless drug testing scheme for employees at the Department of Juvenile Justice. And in a 2000 ACLUFL case, a Federal District Court struck down a suspicionless drug screening program imposed by the City of Hollywood on all applicants for employment.

While the ruling in this case declared drug testing of current employees unconstitutional, it did not address the issue of requiring drug testing for applicants for state employment. The ruling does, however, extend to current employees who are being promoted or changing jobs – a process during which they are considered the same as new applicants.

“If the state moves ahead with drug testing applicants for state employment in what is clearly an unconstitutional policy, they will just be inviting another costly, taxpayer financed legal challenge,” Simon said. “Florida leaders appear to have a hard time understanding that the government can’t search people just because a politician thinks it will be popular.”

ACLUFL staff attorney, Shalini Goel Agarwal, argued the case in front of Judge Ungaro on February 22, 2011.

A copy of the ruling is here: http://www.aclufl.org/pdfs/2012-04-26-ACLU-AFSCMEvScott.pdf