Can an employee who claims his job is nothing more than a “weed-whacker” be required to undergo mandatory random drug testing, and be fired if he fails? The Third Circuit recently said:”Yes.”

David Mollo worked for

the Passaic Valley Sewerage Commission (“PVSC”). Based on anonymous, verbal reports of drug and alcohol abuse among its employees, the PVSC instituted a policy of random drug testing of employees whose work was deemed to be “safety sensitive.” Mollo was considered to be such an employee. Upon acknowledging receipt of the company’s new policy, Mollo was tested and was found to be positive for marijuana, cocaine, and PCP. He was suspended from work and elected to sign a stipulation admitting guilt, at which point he was allowed to return to work on a probationary basis provided that he enter a treatment program sponsored by his employer. The stipulation provided that a subsequent test showing the presence of drugs would result in his termination. He returned to work after his suspension, was tested again at which time he tested positive for cocaine. Not surprisingly, he was terminated from his position.

Mollo challenged this termination claiming that the initial testing without any suspicion that he was using drugs violated his rights under the United States and the New Jersey Constitutions to be free from unreasonable search and seizure. He challenged his employer’s classification of his work as being “safety sensitive.” He lost these challenges.

There is no doubt that an unwarranted drug test can amount to an unreasonable search and seizure, which is prohibited by the federal and state constitutions. But, where the safety concerns are legitimate, and the employer is subject to close government supervision, the employee has a diminished expectation of privacy. The right and necessity of mandatory drug testing is obvious for professions such as policemen, firemen and the like. But is the same true for a “weed whacker?”

The court found that Mollo’s job duties included more than just “wee whacking” – he was responsible for landscaping, and snow removal duties and was required to use vehicles and motorized equipment as well as to be available for work on a 24-hour basis. He worked all around the PVSC plant where there were many potentially dangerous machines, chemicals and other situations. Accidents could easily cause injury or death, significant damage to the plant, or service interruption to the over 1 million customers of the water treatment facility. Despite his protestations, Mollo’s job was “safety sensitive.” The concerns of the employer were found to be legitimate and the protocols for testing were found to be minimally intrusive. Hence, PVSC have the right to require testing, and had the right to terminate Mollo upon his failing the drug tests.

It is becoming increasingly easier for employers to require drug testing. There may be instances, however, where such drug testing does violate a person’s civil rights. A lawyer with experience in this area would be a good person to consult. To avoid this problem altogether: Don’t Do Drugs!

What happens when two important privacy principles come into conflict?

Here are two generally accepted privacy principles of which you should be aware. First, generally speaking, unless a person knowingly waives this right, any communicat

ions that are just between that person and his/her attorney are privileged  (this is known as the “Attorney-Client Privilege”). That means, these communications cannot be discovered by another person, even if you have sued that other person. Second, most employers now have a computer use policy that states that employees should have no expectation of privacy for any e-mails or other communications sent from, received on, or stored in their work computers. Recently, a situation arose when these two principles collided.

Maria Steingart worked as Executive Director for Nursing for Loving Care Agency Inc. Loving Care gave her a laptop to use for company business; from there she could also access the Internet. Loving Care had a computer use policy as stated above Through her password protected Yahoo account, she communicated with her attorney related to a contemplated suit against Loving Care. When she left her employment act Loving Care, she returned the laptop. Later, she sued Loving Care claiming a violation of the New Jersey Law against Discrimination. In an effort to preserve electronic evidence for the litigation, Loving Care hired an expert to create an image of the laptop’s hard drive. Among the items retrieved were Internet files containing the contents of seven or eight e-mails  Steingart had exchanged with her lawyers through the Yahoo account.

Steingart tried to prohibit Loving Care from using these e-mails and sought sanctions for violation of the Attorney-Client Privilege. Loving Care, citing their computer use policy of which Steingart  was aware, claimed that Steingart should have known at the time that the messages, sent from the work laptop, would not be considered private. The trial level court agreed with Loving Care, but this was reversed on appeal, and the issue then went to the New Jersey Supreme Court.

The New Jersey Supreme Court decided in favor of Steingart.  Steingart v Loving Care 201 N.J.300 (2010).  They found that she had a reasonable expectation of privacy in the e-mails she exchanged with her attorneys. It is important to note that those e-mails were exchanged on the personal, password-protected e-mail account, and not the company e-mail account. That fact may have made all the difference. Although Steingart won on this issue on these facts, under a different set of facts she might not have.

There are two important lessons here. First is to know what your employer’s computer use policy is. Second, when communicating with your attorney, it is always a good idea to ask her to explain the circumstances under which your communications would or would not be protected.