NCJ Number
145954
Journal
San Diego Justice Journal Volume: 1 Issue: 1 Dated: (Winter 1993) Pages: 227-252
Date Published
1993
Length
26 pages
Annotation
This article examines the use of drug testing in California for "at-will" employees (employees who may be terminated at the will of either party on notice to the other) in the private sector and its relationship to California's explicit constitutional right to privacy.
Abstract
The author focuses on "at-will" employees, since such an employee generally is the most vulnerable to the whims of the employer. Section II notes the limitations the California constitutional right to privacy imposes on a private employer who implements a drug-testing program in California. Although the right to privacy under the California Constitution does not prohibit all incursion into individual privacy, it requires that "any invasion of privacy by government or business entities must be necessary to achieve a compelling interest." This requirement is much stronger than that of the fourth amendment analysis used by Federal courts. The facts considered in the application of this balancing test include the amount of intrusion on the employee's privacy and the importance of safety and other considerations to the employer. Section III examines the "at-will" rule of employment and discusses the possible exceptions to California Labor Code section 2922. Section IV analyzes the distinctions between job applicants and employees. Relevant California court cases are also examined. The author advises that if the California courts accept the use of urine testing today, the stage is set for more intrusive forms of testing in the future. The privacy amendment of the California Constitution, according to the author, clearly abhors such intrusiveness. 175 footnotes.