Testing the Waters of Constitutional Privacy: When an Employer Requires a Drug Test on the Day of an Employment Offer

Is it unconstitutional for an employer to require that a drug test be taken on the same day that a prospective employee is offered the position? In the New Jersey case Vargo v. National Exchange. Carriers Association, Inc., John Vargo (the plaintiff) worked in a temporary position for a company called the National Exchange Carriers Association, Inc. (NECA).[1] After eighteen months of working in the temporary position, the plaintiff was offered a permanent position that required him to take a drug test on the same day he was offered the position.[2] Before the official offer, Vargo told his supervisor that he was taking certain medications which may be shown on a drug test to which his supervisor indicated that he should be “upfront” and “forthright” about the medications he was taking.[3] Once the offer was official, Vargo signed a waiver that outlined NECA’s drug-testing policies, proceeded to take the drug test, and then failed the first drug test.[4] After the test, Vargo provided the prospective employer with a list of lawfully prescribed medications he was taking. That list contained at least six prescribed medications.[5] The supervisors at NECA allowed him to take the drug test for a second time and the results for that test were also positive.[6] The supervisors at NECA allowed him to take a third drug test, which also resulted as positive.[7] As a result of his test results, the job offer was revoked and the plaintiff was terminated from his temporary position with NECA as well.[8] Vargo then brought suit in trial court against NECA for “invasion of his right to privacy, in violation of the common law and the state constitution,” among other claims.[9] The trial court granted summary judgment in favor of NECA.[10] Vargo appealed to the Appellate Division of The Superior Court of New Jersey and the appellate court affirmed the judgment of the trial court.[11]

The appellate court considered whether NECA’s actions in administering the drug test right after the interview were truly an invasion of the plaintiff’s right to privacy and whether it was a violation of public policy.[12] The court determined that the plaintiff’s privacy was not violated because “no constitutional right to privacy [governs] the conduct of private employers.”[13] The court also determined that “absent statutory regulations circumscribing drug testing as an invidious intrusion into one’s affairs, there was no constitutional proscription to a private employer’s drug testing policy.”[14] The court also determined that there had been no invasion of the plaintiff’s expectation of privacy because he signed a waiver to undergo a test and this, in and of itself, negates an invasion of privacy claim.[15] Vargo had a choice and he chose to sign the documentation necessary to take a drug test, as per that employer’s guidelines.[16] Vargo could have simply declined the drug test but he would also need to decline the job offer as well. Nonetheless, he could have chosen the latter of those two available choices. Furthermore, NECA has a “longstanding drug-free workplace policy and pre-employment drug screening policy for all applicants for permanent positions.”[17]

The plaintiff made additional claims that the court also considered. The plaintiff claimed that NECA’s refusal to hire him and to terminate him violated “a clear mandate of public policy.”[18] The court determined that the plaintiff failed to identify the public policy that was violated when NECA discharged him.[19] The court also addressed the plaintiff’s claim that NECA’s drug testing policy was administered in a discriminatory and unreasonable manner. The court determined that this claim lacked merit because all applicants had to submit to and pass a drug test as part of being offered a permanent position with the company.[20] Additionally, the plaintiff alleged that NECA wrongfully refused to hire him as a permanent employee because he suffered from a disability.[21] In evaluating this claim, the court found that NECA articulated a “legitimate non-discriminatory reason for its decision” because NECA allowed the plaintiff to take the drug test three times, and he failed it all three times.[22] The court considered the plaintiff’s claim that NECA did not hire him because they did not want to have someone with “a dependency on six different prescription drugs,” where one of the drugs was for a psychiatric condition.[23] The court determined that there was no evidence to support that claim.[24]

A New Jersey employer is not violating a prospective employee’s right of privacy by insisting that the individual take a drug test the same day they are offered a position with that employer, when the employer mandates this protocol for all employees and the prospective employee signs a waiver prior to taking that drug test. A prospective employee may choose not to take the drug test, even if it means they won’t get the offered employment.

[1] Vargo v. Nat’l Exch. Carriers Ass’n, Inc., 870 A.2d 679, 681 (Super. Ct. App. Div. 2005). [2] Id. [3] Id. [4] Id. at 682. [5] Id. at 683. [6] Vargo, 870 A.2d at 683. [7] Id. at 684. [8] Id. at 690. [9] Id. at 681. [10] Id. [11] Vargo, 870 A.2d at 681. [12] Id. at 685. [13] Id. at 686. [14] Id. [15] Id. [16] Vargo, 870 A.2d at 681. [17] Id. at 679. [18] Id. [19] Id. at 686. [20] Id. at 687. [21] Vargo, 870 A.2d at 681. [22] Id.  [23] Id. at 687. [24] Id. at 687.

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