On August 1st, we received an email from the general counsel of the UTU, Clint Miller, regarding the Department of Transportation requirement which went into effect August 1st, that pockets must be emptied prior to giving a urine sample for drug testing.
We thought it would be worthwhile to share Clint's thoughts with you. So with his permission, we have published his letter.
"Gentlemen: This letter is in response to concerns expressed by a number of UTU members to some of you regarding the Department of Transportation's ("DOT") requirement, which will go into effect today, August 1, 2001, that pockets must be emptied prior to giving a urine sample for drug testing.
As background, the protocol for testing is issued by the Department of Health and Human Services, and DOT has incorporated that protocol into its testing regulations. Title 49 of the Code of Federal Regulations, Section 219.703, issued by the Federal Railroad Administration, states that urine samples shall be collected and handled as required by Title 49, Part 40, of the Code of Federal Regulations. Specifically, Section 40.61(f)(4) contains the following requirement for the collector:
You must direct the employee to empty his or her pockets and display the items in them to ensure that no items are present which could be used to adulterate the specimen. If nothing is there that can be used to adulterate a specimen, the employee can place the items back into the pockets. The employee must allow you to make this observation.
This section becomes effective today, August 1, 2001. Part 40 covers not only railroads, but all modes of transportation.
During the DOT's consideration of the involved regulation, UTU and over 200 other interested parties presented views on the many issues affecting the rights of UTU members. UTU testified at the hearings and presented written comments. In this process, UTU objected to the proposed requirement to empty one's pockets as intrusive and violating due process. The DOT responded to this in the Federal Register on December 19, 2000, concluding that taking objects out of one's pockets is a minimal intrusion into the employee's privacy, while it can help deter and detect attempts to cheat on tests.
The legal question is whether UTU has any realistic basis to challenge this part of the rule in court. UTU has challenged the overall lack of due process requirement in the DOT rule by intervening in a lawsuit filed by the Airline Pilots Association, and Transportation Trades Department, AFL-CIO, in the United States Court of Appeals for the Ninth Circuit, Case No. 01-70294.
As to the specific legal issue related to the emptying of pockets, based upon existing precedent there is no real opportunity to overturn the requirement. In 1989, the Supreme Court of the United States in Skinner v. Railway Labor Executives' Association, 489 U.S. 602 (1989), held that that DOT's accident/incident/rule violation testing regulations did not violate the Fourth Amendment to the United States Constitution. It reasoned that while railroad employees are generally entitled to protections of the Fourth Amendment, railroads are part of a highly regulated industry, and therefore railroad employees' expectation of privacy is diminished. Moreover, the Court noted that there was a strong governmental interest to ensure public safety on the nation's railroads, and when that interest was balanced against the employee's minimal privacy rights, the accident/incident/rule violation testing, without individualized suspicion, was justified. If the Court did not think such testing of blood, urine and breath was unconstitutional, then certainly emptying one's pockets in the process of such testing will not be considered violative of the Constitution. Because of this precedent, we do not plan a court challenge to the requirement of emptying one's pockets incident to DOT drug and alcohol testing."