['Drug and Alcohol Testing - DOT']
['Drug testing - Motor Carrier']
05/23/2022
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Hammons v. Norfolk Southern Corp., U.S. Sixth Circuit Court of Appeals (Case No. 97-3465), Decided October 2, 1998
Decision: A federal action can be maintained against a private employer if it can be shown that the employer’s policy (in this case, concerning drug testing) violated the individual’s constitutional right and was attributable to the federal government (in this case, the federal drug testing regulations).
Background: On June 15, 1990, Hammons was subjected to a random urine drug screen pursuant to Norfolk's company policy and the Federal Railroad Administration’s Control of Alcohol and Drug Use Regulations in 49 CFR Part 219. He tested positive for marijuana and was suspended from service. A new urine sample was provided by Hammons, which tested negative for drugs. Because the results of the second drug screen were negative, Norfolk's Director of Medical Services notified Hammons that he would be returned to service. However, the letter also warned Hammons that "[s]hould any future test be positive, you will be subject to dismissal." Thereafter, Hammons was allegedly subjected to approximately twenty-four random drug screens during the next year and a half.
In 1992, Hammons' urine sample tested positive for cocaine and he was discharged from service for failure to comply with company policy and the terms of the agreement. Hammons brought the matter to court, alleging that by testing him for drugs in violation of 49 CFR § 219.601, “Railroad Random Drug Testing Programs,” Norfolk violated his right under the Fourth Amendment to be free of unreasonable searches and seizures.
The employer moved to dismiss the claim on the grounds that a Fourth Amendment claim cannot be brought against a private employer.
Court’s Opinion: The court disagreed with the employer. It held that a federal action can be maintained against a private employer if it can be shown that the employer’s policy violated the individual’s constitutional right and was attributable to the federal government.
This case was viewed as opening the door for individuals to pursue private actions for violations of DOT testing regulations. For example, an individual who is terminated after testing positive in a DOT-mandated drug test that did not comply with the procedural regulations can now arguably sue his employer in federal court for a violation of the Fourth Amendment.
This concern should be at least somewhat alleviated, however, by the court’s subsequent decision in Parry v. Mohawk Motors of Michigan, 236 F.3d 299 (6th Cir. 2000), where it specifically held that the Omnibus Transportation Employee Testing Act does not create a private right of action for alleged violations of 49 CFR Part 40.
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