Lessons on Reasonable Suspicion from Burnley and Skinner

Determining what is “reasonable” in establishing “reasonable suspicion” can be very difficult to pin-point. In Railway Labor Executives’ Association v. Burnley, after a two-year rulemaking process, the Federal Railroad Administration (FRA) created new regulations mandating blood, urine, and breath tests of railway employees after certain train accidents, rule violations, and fatal incidents.[1] The FRA felt compelled to propose new regulations after studies were conducted and revealed that between 1975 and 1984, of 791 fatalities caused by railroad employees, 37 resulted from incidents involving alcohol or drug use. The FRA suspected that there was some underreporting and that the issue was worse than indicated in those studies.[2]

The FRA met some opposition from The Railway Labor Executives’ Association, and other railway labor organizations (collectively RLEA), who opposed the new regulations, specifically  Subpart C, which required post-accident testing, and Subpart D, which authorized testing for “cause.”[3] Despite the RLEA’s efforts, the new FRA regulations went into effect on February 10, 1986.[4]

Subpart C mandated alcohol and drug testing for all covered employees involved in various events including major train accidents, impact accidents, or fatal incidents (involving the fatality of an on-duty railroad employee).[5] The regulations required that blood and urine samples be taken from all crew members of a train involved in such an incident as soon as possible.[6]

On the other hand, Subpart D authorized railroads to require employees to submit to breath or urine tests when a supervisor had reasonable suspicion that an employee was under the influence or impaired by alcohol or drugs.[7] To require a urine test, two supervisors must have had reasonable suspicion, and if drug use was suspected, one of them must have been trained in spotting drug use.[8] After the RLEA laid out their objections the District Court granted summary judgment in favor of the FRA.[9]

On appeal, the Court of Appeals for the Ninth Circuit considered whether the Fourth Amendment’s prohibition of unreasonable searches and seizures applied to drug tests conducted in the investigation of railroad employees pursuant to the new regulations adopted by the FRA. The Court of Appeals found that the Fourth Amendment did apply to the privacy interests of the employee.[10] The case boiled down to the two-pronged reasonableness test: the first prong requires the court to determine whether the search was justified at its inception.[11] Second, the court must determine whether the search, as conducted, is reasonably related in scope to the circumstances which justified the interference in the first place.[12]

When looking at the first prong, the Court of Appeals determined that particularized suspicion is essential to finding toxicological testing of railroad employees permissible, and that the limits of such searches are narrowly and specifically defined by the regulations.[13] The Court goes on to say that incidents or rule violations, by themselves, do not create reasonable grounds for suspecting alcohol or drug impairment in any one railroad employee, much less an entire train crew.[14]

The court held that the purpose of drug testing is to detect current drug intoxication and impairment to improve rail safety through the deterrent effect of testing.[15] The Court of Appeals indicated that blood and urine tests cannot measure current drug intoxication or degree of impairment.[16] This, therefore, would seem to indicate that testing which reveals the mere presence of drugs or their metabolites in the system doesn’t directly support the purported interest in testing: to detect actual on the job impairment. The FRA argued that the testing was reasonable because there was a consent to the searches from a provision in the employment contract, but the Court of Appeals held that advance consent to future unreasonable searches is not a reasonable condition of employment.[17] In its holding, the Court of Appeals held that the lower court applied the wrong legal standard in evaluating the Fourth Amendment, and thus erroneously granted summary judgment for the FRA.[18] Applying the reasonableness test, the court concluded that intrusive drug and alcohol testing may be required or authorized only when specific articulable facts give rise to a reasonable suspicion that a test will reveal evidence of current drug or alcohol impairment.[19] The summary judgment of the District Court was reversed.[20]

If this decision had not been overturned it would have limited the scope and frequency of federal drug and alcohol testing programs. In particular, random or post-accident testing without other articulable evidence to support individualized reasonable suspicion of drug or alcohol use would likely have been prohibited as unreasonable searches under the Fourth Amendment of the United States Constitution.

However, in the year following Burnley, in Skinner v. Railway Lab. Execs. Associated, an appeal to the United States Supreme Court, the Supreme Court reversed the Burnley holding.[21] The Court in Skinner held that a requirement of particularized suspicion of drug or alcohol use would seriously impede an employer’s ability to obtain that information, despite its obvious importance.[22] In Skinner, the Court took the stance that the scene of a serious rail accident is chaotic and investigators who arrive at the scene shortly after a major accident find it difficult to determine which members of a train crew contributed to its occurrence.[23] Obtaining evidence that might give rise to the suspicion that a particular employee is impaired, is most impracticable in the aftermath of a serious accident.[24]

In Skinner, the Court held that it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have a tendency to make the existence of any fact that is of consequence to the determination of the point in issue more probable or less probable than it would be without the evidence.[25] The Court of Appeals overlooked the FRA’s policy of placing principal reliance on the results of blood tests, which unquestionably can identify very recent drug use, while relying on urine tests as a secondary source of information designed to guard against the possibility that certain drugs will be eliminated from the bloodstream before a blood sample can be obtained.[26]

The Court held that the compelling government interests served by the FRA’s regulations would be significantly hindered if railroads were required to point to specific facts giving rise to a reasonable suspicion of impairment before testing a given employee.[27] The Skinner court held that the alcohol and drug tests contemplated by Subparts C and D of the FRA’s regulations are reasonable within the meaning of the Fourth Amendment.[28]

Both Burnley and Skinner revolved around a federal regulation imposed on railway workers, but this can easily occur in any regulated industry. Knowing how to establish “reasonableness” and being able to apply the test to any particular set of facts is key to determining whether, in ordering a post-accident or reasonable suspicion drug or alcohol test, you are infringing on an employee’s rights.

[1] Ry. Labor Executives’ Ass’n v. Burnley, 839 F.2d 575 (9th Cir. 1988). [2] Id. at 577. [3] Id. at 579. [4] Id. at 577-78. [5] Burnley, 839 F.2d at 577. [6] Id. at 578. [7] Id. [8] Id. [9] Burnley, 839 F.2d at 578. [10] Id. [11] Id. at 587. [12] Id. [13] Id. [14] Id. [15] Burnley, 839 F.2d at 588. [16] Id. [17] Id. [18] Id. at 592. [19] Id. [20] Id. [21] Skinner v. Railway Lab. Execs. Ass’n, 109 S.Ct. 1402 (1989) [22] Id. at 1405. [23] Id. at 1407. [24] Id. [25] Id. [26] Skinner, 109 S.Ct. at 1407. [27] Id. [28] Id.

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