Legal Question in Employment Law in California

Re: Suprise drug testing

This is allowed under current law in california for non government employees. Some lawyers are trying to outlaw this by argueing violation of privacy but they have not been successful so far.

Re: Suprise drug testing

Requiring an employee to take a surprise drug test may violate privacy rights guaranteed by the California and U.S. Constitutions. The key issue is whether the employer had a legitimate interest it was seeking to protect, i.e. a dangerous work place such as an oil rig or heavy machinery. In such cases the employer can implement a drug testing policy.

As to unemployment, the issue will be whether the employee engaged in misconduct (as defined by Unemployment Insurance Code Section 1256), by refusing the test. Again, the first inquiry will be whether the employer had a legitimate interest to protect, if yes, then an analysis as to whether the refusal constitutes misconduct. The key case is AFLCIO vs. Inemployment Insurance Appeals Board 23 Cal. App. 4th 51. See also Luck v Southern Pacific Transportation Company 218 Cal. App. 3d 1, for a discussion of wrongful termination issues.