Major Constitutional Decision Affecting the Transportation Industry

Share On Facebook Published: May 20th, 2009 by Mike

Enjoying the blog?


We welcome you to take the next step and join the community of gCaptain readers by sharing thoughts and opinions on the forum. Click HERE to get started today!


This topic was originally brought to our attention on the Forum via user Jones Act, more commonly known as Steve Gordon of Gordon & Elias, but I thought it was a good topic for the Blog since I am sure people will have strong opinions on it.  Keep in mind that while the legal case discussed has to do with railroad workers, it has implications into the entire U.S. Department of Transportation, including maritime workers.  Steve Gordon offers the following press release outlining the case:

On Friday, May 15th, the D.C. Court of Appeals decided a case that is styled BNSF Railway Company v. United States Department of Transportation, which determined important privacy rights for aviation, rail, motor carrier, mass transit, maritime and pipeline industries’ workers.

The Department of Transportation requires that workers who violate drug testing policies must successfully complete a drug treatment program and pass a follow up urine analysis before returning to safety-sensitive work.

At issue in this case is whether the Department of Transportation can utilize a direct observation technique of watching the urine specimen leave the examinee’s body in administering the initial and subsequent follow up drug tests.

One of the interesting factual determiners in this case was the advent of devices marketed to falsify the results of random drug tests.  The “wizzinator,” a device the Court particularly highlighted, was designed to closely resemble the male genitalia and to dispense either an artificial urine sample or a previously collected clean urine sample.  The Department argued that such devices necessitate the direct observation of urine sample collections.

Indeed, the Court sided with the Department in outweighing the worker’s right to privacy by comparison to the Department’s goal of creating a drug-free transportation workplace.

From a Constitutional Law perspective, this decision is a radical departure from the Fourth Amendment “search” law precedent because it sanctions a strip search of a U.S. Citizen in the United States who submits a urine sample.  The opinion, though, leaves the reader wondering if foregoing essential privacy, especially in the context of genitalia exposure, should be required of a transportation worker, even though the industry is highly regulated.

When juxtaposed to the need to have a drug free workplace in the area of public transportation, the final decision was foreseeable, but clearly it is highly intrusive.

Steve adds up with the following comment:

This very interesting case is one that weighs the constitutional right to privacy of a U.S. Citizen under the 4th Amendment of the United States Constitution with the Government’s right to ensure safety in transportation. This case will most assuredly be discussed in law school Constitutional Law courses as it sets forth an example of sanctioning extreme intrusion literally into the genital regions without any real evidence to support such a search at that moment. The Department and the Court indicates that recidivism of drug use makes it with ‘some suspicion’ that warrants and supports this type of intrusive testing but I believe this is simply a sign of the times. That is, we, as U.S. citizens, have been losing protections since the end of the Warren court. There are many decisions involving “searches” from the Rehnquist Court that slowly shaved away our rights to privacy. This case’s result was easily foreseeable since drug usage in the workplace has become so rampant. The need to protect the public from the potential harm caused by a “Casey Jones” type is an argument that is impossible to refute.

When I asked Steve about the ramifications to gCaptain’s readers and professional mariners he replied that the rational of the case turns upon protecting the safety of the public from the transportation industry. Specifically, it could easily be applied to pilots that are charged with the responsibility of bringing in large ships into a harbor.  Whether it would apply to captains of tug boats going down the ditch, Steve believes it could because they carry hazardous material. So, though this case only applies at the moment to the railway industry, it is easily anticipated to be seen being utilized in the maritime industry.

With that in mind, do companies reserve the right to strip search when giving a urine sample to an employee on the basis of a previous infraction?

You can read more about this case, including the entire case review on Steve’s blog, JonesActQuestions.com

Gordon & Elias, L.L.P are a boutique law firm with a nationwide practice focusing on Jones Act, Admiralty and Maritime Law.  More information can be found at http://www.OffshoreInjuries.com, and the associated Jones Act Blog http://www.JonesActQuestions.com.

Related Posts:

Categories: Maritime Law · maritime security

Tags: · ,

This Article Was Written By Mike
After graduating the Catholic University of America in 2005 with a B.S.B.A. in Finance, Mike went on to Tahoe to help with the launch of gCaptain's sister site, UnofficialSquaw.com. In June of 2008 Mike joined gCaptain.com as the first full-time employee in charge of sales and marketing and the day-to-day operations of gCaptain.com and Unofficial Networks, LLC.

This blog is sponsored by:


  • Do not take drugs. Do not operate under the influence. Seems fairly simple, If we all start from that point, I feel no guarantee under the constitution or any CFR to operate anything other my my own two legs on my own property and expect no other guarentee beyond my own yard. We have come to expect too much and personal safety of the general population has grown beyond union rules.
    Did anyone follow the degenration of the right from search and seizure back in the '80's. We gave it up a long time ago. sorry to see so many realizing the loss now..
  • Comment #2
    (e) As the collector, you must complete a new CCF for the directly observed collection.

    (1) You must mark the “reason for test” block (Step 1) the same as for the first collection.

    (2) You must check the “Observed, (Enter Re-mark)” box and enter the reason (see § 40.67(b)) in the “Remarks” line (Step 2).

    (f) In a case where two sets of specimens are being sent to the laboratory because of suspected tampering with the specimen at the collection site, enter on the “Remarks” line of the CCF (Step 2) for each specimen a notation to this effect (e.g., collection 1 of 2, or 2 of 2) and the specimen ID number of the other specimen.

    (g) As the collector, you must ensure that the observer is the same gender as the employee. You must never permit an opposite gender person to act as the observer. The observer can be a different person from the collector and need not be a qualified collector.

    (h) As the collector, if someone else is to observe the collection (e.g., in order to ensure a same gender ob-server), you must verbally instruct that person to fol-low procedures at paragraphs (i) and (j) of this sec-tion. If you, the collector, are the observer, you too must follow these procedures.

    (i) As the observer, you must request the employee to raise his or her shirt, blouse, or dress/skirt, as appro-priate, above the waist; and lower clothing and un-derpants to show you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination.

    (j) As the observer, you must watch the employee urinate into the collection container. Specifically, you are to watch the urine go from the employee's body into the collection container.

    (k) As the observer but not the collector, you must not take the collection container from the employee, but you must observe the specimen as the employee takes it to the collector.

    (l) As the collector, when someone else has acted as the observer, you must include the observer's name in the “Remarks” line of the CCF (Step 2).

    (m) As the employee, if you decline to allow a direct-ly observed collection required or permitted under this section to occur, this is a refusal to test.

    (n) As the collector, when you learn that a directly observed collection should have been collected but was not, you must inform the employer that it must direct the employee to have an immediate recollection under direct observation.

    ---------------------------------------------------------

    From my perspective, this case is constitutionally disturbing. Yes, it is, as you pont out, a decision upholding a statute as constitutional but not just any statute. Think about it, what is to stop them from enlarging the scope and amending the statute to say that it applies to all persons no matter if they have tested positive or not before?

    Yes, life will go on but with just a little less privacy than you had before May 15th, 2009.
  • Well, it'll be the same amount of privacy I had before - nothing has changed, a reg has been upheld. Also, remember that this is a return-to-duty or follow on test - purely voluntary. For the random test, there must be reason for suspicion of some cheating going on - abnormal temperature ranges, tampered specimen, negative dilute with indicators of cheating, etc.

    IF, big if, the statute is expanded then perhaps there will be less privacy, but that will be done by legislation and unions etc will have opportunity to comment to their representatives, so in the end I doubt it would change.
  • Since the USCG uses the DOT drug testing requirements for marine employers (46 CFR 16.113) if it applies to rail employees then it applies to maritime employees. That said, having not read the decision itself - just the summary above, it sounds like an affirmation of 49 CFR 40.67 which lays out when direct observation must & may be conducted. Specifically it sounds like it applies to 46.b which states, "As an employer, you may direct a collection under direct observation of an employee if the drug test is a return-to-duty test or a follow-up test."

    So I don't know that anything has changed - correct me if I'm wrong - just that an existing reg has been challenged and upheld.
  • Dear SparkyWD-

    This response is too long for one comment. So I am breaking into two comments.
    Dear SparkyWD-

    You are correct, the statute at issue is 49 CFR 40.67. I would urge you to read the opinion and you may do so at: http://www.jonesactquestions.com/newsgeneral/gene...

    I have set out for the readers 49 CFR 40.67 in its entirety below (plus Comment#2):

    Effective: November 20, 2008

    Code of Federal Regulations Currentness
    Title 49. Transportation
    Subtitle A. Office of the Secretary of Transportation
    Part 40. Procedures for Transportation Workplace Drug and Alcohol Testing Pro-grams (Refs & Annos)
    Subpart E. Urine Specimen Collections

    § 40.67 When and how is a directly observed collection conducted?

    (a) As an employer, you must direct an immediate collection under direct observation with no advance notice to the employee, if:

    (1) The laboratory reported to the MRO that a specimen is invalid, and the MRO reported to you that there was not an adequate medical ex-planation for the result;

    (2) The MRO reported to you that the original positive, adulterated, or substituted result had to be cancelled because the test of the split speci-men could not be performed; or

    (3) The laboratory reported to the MRO that the specimen was negative-dilute with a creatinine concentration greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, and the MRO reported the specimen to you as negative-dilute and that a second collection must take place under direct observation (see § 40.197(b)(1)).

    (b) As an employer, you may direct a collection un-der direct observation of an employee if the drug test is a return-to-duty test or a follow-up test.

    (c) As a collector, you must immediately conduct a collection under direct observation if:

    (1) You are directed by the DER to do so (see paragraphs (a) and (b) of this section); or

    (2) You observed materials brought to the collec-tion site or the employee's conduct clearly indicates an attempt to tamper with a specimen (see §§ 40.61(f)(5)(i) and 40.63(e)); or

    (3) The temperature on the original specimen was out of range (see § 40.65(b)(5)); or

    (4) The original specimen appeared to have been tampered with (see § 40.65(c)(1)).

    (d)(1) As the employer, you must explain to the employee the reason for a directly observed collection under paragraph (a) or (b) of this section.

    (2) As the collector, you must explain to the em-ployee the reason, if known, under this part for a directly observed collection under paragraphs (c)(1) through (3) of this section.
blog comments powered by Disqus


Taxes
DPOperators.org
Spurs Marine - Line & Net Cutter
Fastsream
gTrax
Enforce the Jones Act
Bates and Dittus




Important Links



RSS FEED


Subscribe Via Email

Daily Updates


Bi-Weekly Newsletter







Follow gCaptain