Williams v. UPS, a Folly of Preemption in Reasonable Suspicion Testing

Do state drug testing regulations contradict federal regulations when it comes to reasonable suspicion drug tests? Be sure to look at exception clauses in the law. In the early 1980’s, fast and inexpensive urinalyses to detect drug use incentivized companies to drug test their employees.[1] In 1988 the Department of Transportation (DOT) issued regulations which require drug and alcohol testing of employees in “safety-sensitive” positions in the aviation, trucking, mass-transit, pipeline, and other transportation industries.[2] Although not required by federal law, many states adopted statutes that impose procedural regulations on employee drug tests conducted by private employers.[3]

In Williams v. United Parcel Service (UPS), Clyde Williams filed a lawsuit against his employer, UPS, for wrongful termination in violation of Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act (Act).[4] The question posed in this case is whether an employee aggrieved by his employer’s federally-mandated drug test may sue under state law for violations of these procedural protections.[5]

In the morning hours of February 9, 2004, Mr. Williams drove a tractor-trailer out of UPS’s station and ended up traveling down an embankment which caused the truck to overturn.[6] Shortly thereafter, between 7:30 and 8:00 a.m., two UPS managers arrived at the scene and observed Williams as having red eyes.[7] Believing to have established enough reasonable suspicion, UPS had Williams tested for controlled substances later that day, around 1:00 p.m.[8]

The results of the administered drug test were positive for controlled substances, as were the results of secondary screening tests that were conducted on February 11 and February 13.[9] The Medical Review Officer (MRO) attempted to discuss the results with Williams three times, to no avail, before ultimately reporting the positive to the company per the federal regulations.[10] UPS sent Williams a termination letter on March 1, 2004, for his negligence which resulted in an avoidable truck accident.[11] The next day, Williams contacted the MRO and requested a split-sample testing of his urine.[12] A split specimen test is when the employee’s urine sample is split between two specimen cups in order to have a second sample tested if the employee wants to reconfirm the result; if the split comes back negative, then the laboratory has likely made a mistake and the employee will likely be exonerated.[13]

The split-specimen testing reconfirmed the presence of controlled substances and UPS subsequently sent Williams a second termination letter for failing the drug test.[14] Williams brought an action alleging that the Oklahoma Standards for Workplace Drug and Alcohol Testing Act protected him from being drug tested while UPS argued that the Act did not apply to this case, as Williams’s drug test was required by and conducted pursuant to the United States Department of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) Regulations.[15]

This case looks at the boundary between state statutes that regulate employee drug testing, such as Oklahoma’s Act, and federal statutes that mandate drug testing of certain safety-sensitive employees.[16] The central question in this case was whether Oklahoma’s statute, which would have prohibited the reasonable suspicion drug test on Williams, or the DOT regulations, which expressly authorize the reasonable suspicion drug test on Williams, controls. When federal and state laws conflict, federal law typically preempts, or controls, and often invalidates the state statute to the effect that it conflicts. Oklahoma’s Act in this instance exempts from its procedural standards “drug or alcohol testing required by and conducted pursuant to federal law.”[17] The court concluded that the phrase “conducted pursuant to federal law” describes those drug tests mandated by the DOT.[18] The court held that the drug test conducted on Williams fell within the scope of the Act’s exemption, thereby extinguishing his state law claim for violations of the drug testing procedure.[19]

In this case, the state legislature took the time to carve out an exception to their drug testing regulations to make way for those required by the federal government and effectively avoided any conflict preemption. Employers with testing programs conducted under company and federal authority should ensure that (i) the difference is explained to their employees in training; and (ii) important distinctions, such as what qualifies as sufficient reasonable suspicion to order a test are explained in supervisor training programs.

[1] Williams v. UPS, 527 F.3d 1135, 1137 (10th Cir. 2008). [2] Id.; see 49 C.F.R. § 40 (2020). [3] Williams v. UPS, 527 F.3d at 1137. [4] Williams v. UPS, No. CIV-06-210-C, 2006 U.S. Dist. LEXIS 60070 (W.D. Okla. Aug. 23, 2006). [5] Williams v. UPS, 527 F.3d at 1138. [6] Williams No. CIV-06-210-C, 2006 U.S. Dist. at 1-2. [7] Id. at 2. [8] Id. [9] Id. [10] Id. at 3. [11] Williams No. CIV-06-210-C, 2006 U.S. Dist. at 4. [12] Id. at 3. [13] See 49 C.F.R. § 40.3 (2020) (defining “split specimen” as “a part of the urine specimen that is sent to a first laboratory and retained unopened, and which is transported to a second laboratory in the event that the employee requests that it be tested following a verified positive test of the primary specimen or a verified adulterated or substituted test result.”). [14] Williams No. CIV-06-210-C, 2006 U.S. Dist. at 4. [15] Id. at 7. [16] Williams v. UPS, 527 F.3d at 1136. [17] Id. [18] Id. [19] Id. at 1137.

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