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Legal Report June 2013


DRUG TESTING. A federal court has ruled that a company’s random drug and alcohol screening program is not discriminatory. Given the dangerous nature of the work involved, the court ruled that the program was necessary to maintain a safe work environment.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of employees at a U.S. Steel Corporation facility, located in Clairton, Pennsylvania. The EEOC argued that the company’s policy of conducting random drug and alcohol screening on probationary employees violates the Americans with Disabilities Act (ADA). The ADA, contended the EEOC, prohibits such tests unless they are job-related and consistent with business necessity.

U.S. Steel requested summary judgment—a hearing based on the facts of a case without a trial. The company defended its program by arguing that it was job-related and consistent with business necessity.

The company’s coke manufacturing facility is the largest in the United States. Entry-level employees are hired to work in the coke production department. These employees work near the coke batteries, which contain molten coke and can reach a temperature of 2,100 degrees Fahrenheit. Employees must also navigate “narrow work areas, dangerous heights, massive moving machinery, [and] superheated gasses that are both toxic and combustible.”

The company’s 1,250 employees are represented by the United Steelworkers Union. In an agreement between the union and the company, employees must complete a probationary period of 1,040 hours. The agreement also allows U.S. Steel to subject employees to drug and alcohol testing.

In filing its request for summary judgment, the company noted that, given the dangerous work employees must undertake at the plant, “the alcohol and drug free workplace policy is among the most important of our policies because of its direct connection to safety.”

The U.S. District Court for the Western District of Pennsylvania found in favor of U.S. Steel, ruling that its drug and alcohol screening program did not violate the ADA. The court ruled that probationary employees at the company face a dangerous working environment and must maintain vigilance. “No level of intoxication is acceptable on the job in these circumstances,” noted the court.

The court also determined that the company had a real fear of impaired employees in the workplace. After intoxicated employees became a problem at the company’s Indiana plant, the company implemented the screening program in Pennsylvania.

The court was also swayed by the fact that the program was approved by the employee union. This fact “further highlights the consensus by all parties involved that such testing was consistent with maintaining workplace safety.” (EEOC v. U.S. Steel Corporation, U.S. District Court for the Western District of Pennsylvania, No. 10-1284, 2013)

DRUG DOGS. The U.S. Supreme Court has ruled that using a police dog to sniff around a house for illegal drugs is a “search” under the Fourth Amendment and requires a warrant. That upheld the lower court ruling.

In the case, the Florida Supreme Court ruled that police violated the Fourth Amendment when they used a drug dog to sniff the exterior of a person’s home. In the case, police got a tip that marijuana was being grown inside Joelis Jardines’ home. Based on this tip alone, and without a warrant, police used a drug dog to sniff at Jardines’ front door. The dog alerted, indicating the presence of marijuana. Police entered the residence and found marijuana plants.

Attorneys for Jardines argued that the search violated the Fourth Amendment and that a warrant is necessary to enter a private residence, even if a dog detects the presence of narcotics. The Florida court agreed, writing that “if government agents can conduct a dog ‘sniff test’ at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites over-bearing and harassing conduct. Accordingly, we conclude that a ‘sniff test,’ such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a ‘search’ within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.”

The Court upheld the Florida Supreme Court decision, which found that police overstepped their authority when they used the drug dog to sniff around a suspect’s house. Under the new Supreme Court ruling, police will have to get the warrant before deploying drug dogs. (Florida v. Jardines, U.S. Supreme Court, No. 11-564, 2013)


COURTHOUSE SECURITY. A bill (S. 445) that would help state and local courthouses obtain security equipment has been introduced by Sen. Al Franken (DMN) and is currently pending in the Senate Judiciary Committee.

Identical to a bill Sen. Franken introduced in the last congressional session, S. 445 would allow state and local governments to use various federal grant programs to improve security at courthouses. The bill would also direct the government to ensure that state and local jurisdictions can request any extra security equipment purchased by the government before that equipment is given to other organizations. Such equipment would include metal detectors, wands, and baggage screening devices. The bill would stipulate that priority would be given to courthouses that have no security equipment.

SCHOOL SAFETY. A bill (S. 146) that would establish a government task force to study school safety issues has been approved by the Senate Judiciary Committee and is now pending before the full Senate.

Under the bill, the government would set up an interagency task force to develop a set of advisory school safety guidelines. The bill would also offer grants for violence-prevention programs.

S. 146 would also address violence on college campuses by establishing the National Center for Campus Public Safety. The center would be designed to offer education and training for public safety personnel who serve colleges and universities. The center would also establish best practices for campus safety.

FRAUD. A new bill (S. 600) introduced by Sen. Chuck Grassley (R-IA) is designed to eliminate fraud in the H-1B Visa program. The H-1B program allows U.S. companies to hire workers from outside the United States for jobs if the companies are unable to find qualified U.S. workers. Designed to allow companies to find employees in highly specialized fields, the program is now widely used for routine positions such as jobs in the IT sector. S. 600 would take several steps to strengthen oversight of the program, such as requiring random audits and sharing information with the U.S. Citizenship and Immigration Service. The bill would also increase fines for violating the rules of the program.


FIREARMS. A new bill (H.B. 389) introduced in the Utah Legislature would require public schools in the state to notify students if a teacher is armed. The bill would also require that schools reassign students to a different classroom, with an unarmed teacher, at the request of parents. The bill is one of the first to rein in the arming of teachers. More than 15 states have introduced armed teacher bills or training programs since the Newtown shooting in December.

SCHOOL SAFETY. An Indiana bill (S.B. 1) would require that all public schools in the state have a trained, armed officer on school grounds during regular hours. Under the measure, the officer would have to be armed with a gun, not a Taser or any other device. The officer need not be a security officer and could be a teacher, staff member, or administrator so long as the person had completed the requisite training.

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