Skip to content

Legal Report May 2009


DRUG TESTING. A federal district court has ruled that a school board’s random drug testing policy is unconstitutional. The court found that the school board’s rationalization—that employees held safety-sensitive jobs and that drug use among workers was increasing—was insufficient to justify the policy.

In 2007, the Kanawha County Board of Education adopted a drug prevention policy for its employees. Under the policy, workers would be tested in certain situations: before employment, for cause or reasonable suspicion, due to missing substances, to assess fitness for duty, before promotion or transfer, and before a return to duty.

About a year later, the school board revised its policy to include random drug testing of employees in safety-sensitive positions. This category included 47 positions in such diverse jobs as administrative assistant, coach, handyman, plumber, teacher, and superintendent. The school board defended the change based on the fact that over the course of the previous year, nine employees had tested positive for drugs. The job functions were chosen, said the board, because they directly related to public health and safety and the protection of life and property.

The American Federation of Teachers filed a lawsuit on behalf of four Kanawha County teachers. The lawsuit claimed that the random drug testing provision violated their right to be free from unreasonable search and seizure under the Fourth Amendment to the U.S. Constitution.

The U.S. District Court for the Southern District of West Virginia found in favor of the teachers, ruling that, as an arm of the federal government, the school board was violating the Fourth Amendment via its random drug testing policy.

The court noted that the violation could be justified if the school board could prove that it faced a concrete danger that could be overcome by the drug testing policy. The school board failed to do this, according to the court. In the written opinion of the case, the judge noted, “To justify such a suspicionless search, I must not engage in a speculative exercise to find remote risks of horrible disasters. Rather, I should examine the normal course of a particular employee’s duties.”

The court also rejected the school board’s argument that the employees should be randomly tested because they served in safety-sensitive positions. The court compared the positions with those deemed safety-sensitive in other legal decisions, such as correctional officers, airline personnel, police officers, and those working in a military weapons plant. In comparison, the court determined that there was no evidence that any of the school employees held “positions permeated with great and concrete safety risks.” (American Federation of Teachers v. Kanawha County Board of Education, U.S. District Court for the Southern District of West Virginia, No. 2:08-cv-01406, 2009)

MALICIOUS PROSECUTION. An employee who erased computer data and was later arrested for the crime cannot pursue his claim of malicious prosecution against his former employers. A federal appeals court ruled that the employee could not prove that the company acted without probable cause in turning the case over to the police.

In 2001, Yuming Deng worked for Sears, Roebuck, and Company as a statistical modeler. His job was to design software that could be used to determine how much credit to give individual customers. In February of that year, Deng took issue with his performance review. Deng argued with his supervisor, then shortly after the incident, he claimed to be disabled and stopped working.

While he was out on leave, Deng repeatedly came into the office. He was escorted out of the building each time due to a company policy that prohibited those on leave from entering the office. On one of these occasions, Deng threatened a supervisor. Another time, he deleted a large amount of information on one of his data modeling projects.

When Deng’s supervisor discovered that the information had been erased, he had it restored at a cost of approximately $40,000. The lost data also delayed several projects that depended on the information.

Managers believed that Deng had erased the information in retaliation for the bad review. They asked the company’s manager of corporate investigations to look into the incident. The investigators concluded that Deng had maliciously destroyed valuable data. The company reported the issue to the local police in Illinois where Deng’s office was located.

The police determined that Deng had violated state law, which prohibits tampering with computer files without the owner’s permission. Formal charges were filed, but before Deng could be arrested, he fled. Eighteen months later, he was found in Massachusetts, arrested, and taken back to Illinois to stand trial.

The charge was ultimately dismissed after a witness failed to appear and the state’s district attorney decided not to pursue the matter. Deng then sued Sears for malicious prosecution.

To prevail on his claim, Deng needed to show that the criminal case ended in his favor, the charge was not supported by probable cause, and the accuser made the charge with malice.

The U.S. Court of Appeals for the Seventh Circuit found in favor of Sears. The court noted that while Deng could argue that the criminal case ended in his favor, he could not prove that there was a lack of probable cause.

The court noted that the company had probable cause to believe that Deng was a disgruntled employee who erased valuable company data. The measures taken by the company proved that it had suffered harm due to Deng’s actions. In the written opinion of the case, the court noted: “Nothing in the record would permit a jury to find that Deng’s supervisors at Sears believed that all of the information he erased was no longer useful; if they believed that, why spend $40,000 or more to restore it?” (Deng v. Sears, Roebuck, and Company, U.S. Court of Appeals for the Seventh Circuit, No. 07-3331, 2009)


STATE SECRETS. A bill (S. 417) introduced by Sen. Patrick Leahy (D-VT) would alter the use of state secrets privilege by the Executive Branch. Under the privilege, the government can keep information from becoming public if it believes that the data will harm national security.

The measure would require that the Executive Branch obtain court approval from a federal court each time it invokes the state secrets privilege in a civil action as a way to prevent information from being released. Under the bill, the Executive Branch would also be required to provide a report to Congress on each item within 30 days of invoking the privilege.

An identical bill was approved by the Senate Judiciary Committee in the last Congress but was not brought to a vote before the Senate. The current bill might have more momentum because the Democrats now control the Senate and Sen. Leahy, who introduced the bill, also chairs the Senate Judiciary Committee, to which the bill has been referred.

COPPER THEFT. A bill (S. 418) introduced by Sen. Amy Klobuchar (D-MN) would require that sellers and buyers of scrap metal meet certain requirements. The bill is designed to prevent the theft and sale of metal, such as copper or aluminum, from utility, infrastructure, and telecommunication facilities.

Under the bill, a buyer could not purchase metal that was marked with the name, logo, or initials of a utility, telephone company, or public institution without written approval from the owner.

Also, recycling agents would be required to maintain a written or electronic record of each purchase, including names, addresses, ID information, and vehicle data of the parties as well as the description of the metal purchased. Under the measure, these records would be kept for a minimum of two years, and the recycling agent would be required to take reasonable precautions to protect the security of the data and prevent unauthorized disclosure of that information.

S. 418 has one cosponsor and has been referred to the Senate Commerce, Science, and Transportation Committee.

FOOD SAFETY. A bill (S. 429) introduced by Sen. Robert Casey (D-PA) would implement safeguards to ensure the safety of imported food. Under the bill, the government would establish food safety and agroterrorism training programs for border patrol agents and other federal employees overseeing the importation of food. It would also set up an education and outreach program on foodborne illnesses.

S. 429 would require that the Secretary of Health and Human Services notify the Department of Homeland Security about any food products smuggled into the country. The measure would require that food safety labs be independently certified. The bill sets out civil penalties for companies that fail to present imported meat and poultry products for inspection.

The measure has one cosponsor and has been referred to the Senate Agriculture, Nutrition, and Forestry Committee.



RFID. A bill (S.B. 125) under consideration in the Nevada Senate would make it a felony to possess, read, or capture another person’s information via RFID. The bill provides an exception for law enforcement officers investigating a crime. However, researchers are concerned that the bill could prevent penetration testing to uncover weaknesses in an RFID system.

New Jersey

SECURITY OFFICERS. A bill (S.B. 2477) introduced in the New Jersey Senate would ensure that in-house security officers meet the same training and registration requirements as contract officers.

Under the measure, in-house security officers would be required to be at least 18 years old. Officers would have to be free of certain criminal convictions, including those involving the unlawful use, possession, or sale of a controlled dangerous substance.

This column should not be construed as legal or legislative advice.