D.D.C.: USFS employees in JCCCs subject to random drug testing

USDA Forest Service employees who handle at-risk youth in residential Job Corps Civilian Conservation Centers are subject to government imposed random drug testing. They work in the field, and they are a long way away from hospitals if help is needed because somebody got hurt. Nat’l Fedn. of Fed. Employees-IAM v. Vilsack, 2011 U.S. Dist. LEXIS 37033 (D. D.C. April 6, 2011):

b. “Operational Realities” of JCCCC Employees

The Court next evaluates whether JCCCC employees have a diminished expectation of privacy given the nature of their employment. The Supreme Court has made clear that the “operational realities of the workplace may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts.” Von Raab, 489 U.S. at 671. Thus, “it is plain that certain forms of public employment may diminish privacy expectations even with respect to [] personal searches.” Id. Courts have held, for example, that employees’ “expectation of privacy is lessened [when they] occupy positions that require stringent background checks,” Stigile, 110 F.3d at 804; see also Von Raab, 489 U.S. at 677; Nat’l Treasury Emps. Union v. U.S. Customs Service, 27 F.3d 623, 629, 307 U.S. App. D.C. 173 (D.C. Cir. 1994). Furthermore, although courts have recognized that incumbent employees’ “privacy interests are greater than applicants,” see Transp. Inst. v. U.S. Coast Guard, 727 F. Supp. 648, 655 (D.D.C. 1989), such privacy expectations are lessened when employees had advance notice of possible testing. Am. Fed’n of Gov’t Emps. v. Dole, 670 F. Supp. 445, 447-48 (D.D.C. 1987); see also Aubrey v. Sch. Bd. of Lafayette Parish, 148 F.3d 559, 564 (5th Cir. 1998) (plaintiff had “notice that his position as a custodian was specifically designated as safety sensitive and that he would be subject to random testing. …”); Krieg v. Seybold, 427 F. Supp. 2d 842, 856 (N.D. Ind. 2006) (employees had “diminished expectation of privacy because random drug testing was one of the bargained-for provisions in the 2003-2004 CBA.”).

The defendants cite five key factors for their position that JCCCC employees have a reduced expectation of privacy. First, it is an operational reality that these employees work with at-risk youth in residential settings and are responsible for the students’ safety and welfare. Defs’ Mem., at 18-20. Second, the JCCCC employees must help maintain and enforce a zero tolerance drug environment for the students, and this policy requires no drug use among either the students or the staff, no matter the position. Id. at 12-15, 18-19. Third, the JCCCCs are located in rural or remote areas and employees must therefore be able to drive students or staff to services located elsewhere, including in emergency situations. Id. at 22. Fourth, the JCCCC employees have voluntarily submitted to rigorous background checks before employment and undergo periodic re-investigations. Id. at 16. Finally, the defendants maintain that employees have been on notice of testing since 1996, when the USDA first designated them for testing; and the new NFFE-USDA Collective Bargaining Agreement provided further notice of impending drug-testing provisions. Id.