Hypothetically speaking, everyone in the workplace is a potential drug user until his or her metabolites can prove otherwise.

It is on this theoretical notion, say civil liberties advocates, that the drug testing industry has built a multi-billion dollar empire over the last decade, restructuring national and global HR policies forever—some for public safety, others, for private gain, they say.

Needless to say, a winning resume and a few good references no longer suffice in today's workforce unless they are accompanied by a fresh cup of urine. "Construction companies, banks, call centers, even grocery stores continue to make it a primary requirement in their application processes,” says Rio Grande at Work public information officer Sidney Alvarez.

“The employer is investing in the employee, and they want to invest in someone that is going to be a good worker,” said Alvarez. “It makes sense that any place of employment would want to invest in finding the most qualified candidates.”

The drug testing industry is a system comprised of chemical and equipment manufacturing companies, lobbyists, public interest groups, marketing consultants, and laboratories. A slumping economy the last three years, however, has forced a sharp decline on the industry, reports say. Companies looking for cost-effective methods to screen their employees now have turned to reasonable suspicion practices more than ever before. Civil liberties groups say this is bad news for most employees who are not protected from subjective, yet legal reasonable suspicion policies that may indirectly target race, disability, or social class.

Drug policy critics and libertarians have long held that the practices of reasonable suspicion, pre-employment drug screening, and random drug testing all reverse the presumption of innocence, said William Weaver, UTEP law professor. And reasonable suspicion might be the new strain of the “search and seizure” family, but the issue still remains a 4th Amendment rights issue, he said.

“People in this society generally think that we have a lot of privacy when in fact we have virtually no privacy whatsoever,” Weaver said.

Not your phone calls, not your e-mails, not even your bodily fluids are free from intrusion, he says.

Yvonne Villa, 29, never gave the idea of drug testing much thought. She knew it was a necessary process in getting hired virtually anywhere in El Paso, so, like most people, she was complacent with the idea as long as it guaranteed finding work. She was finally hired to work as a bartender at a local billiards place, but during her third day on the job, she said something took her by surprise that changed her opinion about drug testing from then on.

“I was working the register when all of a sudden my manager stands behind me, gets a strand of my hair and clips it with a pair of scissors and goes, ‘oh just keep on doing what you're doing, I'm going to send this off for a test',” she said. “Something just didn't feel right… I knew they had the right to do it, but something about them taking a part of me, that easily, and that quickly, did not feel right. It felt violating…I wound up quitting a few days later.”

Fighting The Drug War One Pee Cup At a Time

Most people will generally agree that workers in safety sensitive positions like bus drivers, airline pilots, and truck drivers, should be drug tested to ensure the safety of the public.

But the argument posed by critics and civil libertarians alike is on the irrelevancy of testing the remaining workforce whose jobs pose no significant public safety threat, and are not mandated by law to test in the first place, says Texas Civil Rights Project Attorney, Wayne Krause. Mailroom jobs, filing office jobs, custodial jobs, the list goes on, he said.

“I don't have as much of a problem with transit workers being subject to these tests because alcohol usage is extremely relevant to the safety of others,” said Krause in a telephone interview from his Austin office. “But there is really no relevancy in imposing intrusive drug tests on people in non-safety sensitive fields.”

But the enforcement of a healthy workforce is reason enough, say drug-testing companies such as Quest Diagnostics, Concentra, and TriCore Reference laboratories, who chime similar sales-pitch extrapolations to their clients: Employee drug use costs companies big money in absenteeism, loss of productivity and safety, and health and insurance costs.

The United Nation's 1993 Bulletin on Narcotics reported that none of these early claims were backed by substantive empirical evidence, and the National Academy of Sciences have looked at the record and found little support for most of the drug testing industry's claims. Despite this, drug testing companies still present these marketing claims to company clients in order to sustain their business, says Krause.

What proponents of drug testing won't readily admit, says TriCore Reference labs forensic toxicologist Eugenia Brazwell, PhD, is that worker safety and a drug-free workforce is not necessarily the major corporate agenda behind drug testing, it's the money, she says.

“Why employers often do it, even smaller employers, is because of insurance—they get a break on their insurance. It's a win-win situation,” said Brazwell from TriCore labs in Albuquerque , which tests all the samples sent over from its El Paso facility. “The places that don't really care so much about drug-testing will institute a drug-free policy anyway just to get a break.”

El Paso's workforce is overflowing with businesses and companies trumpeting drug-free signs. Home Depot, GC Services, Wal-Mart, even McDonalds screens prospective employees. Dee Margo, Chairman and CEO of JDW Insurance, says he implements a drug-free policy at his workplace, but he would not say if his own business or his clients' received direct discounts on their workers comp premiums for doing so.

“It was more ‘let's walk the talk', I mean we're making these recommendations out there, we might as well lead with them,” he said.

The National Federation of Independent Business (NFIB), a small business political lobbying group, will admit that businesses do get an immediate discount when they enforce a drug-free policy. The NFIB partners with the Occupational Safety and Health Administration (OSHA) for the very purpose of educating small businesses on implementing drug-free workplace programs to lower their premiums.

“Some states do get a direct discount on their workers comp if they have a certified drug and alcohol program in place,” said Susan Fitzhenry, an NFIB marketing manager.

Legislative History

Drug testing was initially only used by the military. After the drug testing industry become aware of its profitability, the industry took launch after President Reagan signed an executive order in 1986, declaring all federal agencies drug-free workplaces. After the 1988 Drug Free Workplace Act was passed, the Omnibus Transportation Employee Testing Act of 1991 followed, which mandated pre-employment and post-accident drug and alcohol testing exclusively for transportation industry employees such as truck drivers, train and bus conductors, and airline pilots.

“The testing of commercial drivers here really started back in 1995,” said Barbara Brown of the local Texas Department of Transportation office. “Commercial drivers by law have to be tested for pre-employment, and they also get post-accident tests, and random tests whenever their unit number comes out randomly.”

When random drug tests for half of all safety-sensitive workers were being carried out each year after 1991, advocates quickly took employers to court, accusing them of invading their privacy and conducting illegal searches. The backlash for opponents of drug testing, however, said employee attorney, Mike McQueen, was that these cases reinforced the right of private employers, under the "at will" employment principle, to carry out these tests whenever, he said.

The employment-at-will doctrine generally protects private employers and gives them the right to impose urine tests, credit history checks, even personality tests on their employees, he says. That's why the attempt to ban randomized testing in the state has been a short lived one, he argues, because the state has a workplace drug-free act just like the federal one. For a government employee to be randomly tested, it would have to be done on probable cause, he said.

“Drug testing is something that people pretty much enforce and don't really protest anymore,” said McQueen.

Some state and government-run institutions like universities and agencies are exempt from having to test their employees randomly, or at all.

“It's not part of the procedure for normal everyday employees,” said UTEP public affairs specialist, Kimberly Miller. “Pre-employment drug screening is only part of the policy for commissioned police officers and for commercial drivers.”

Reasonable Suspicion On The Rise

As the economy wavers and hiring slows, employers have decided it's just not worth testing job applicants for pre-employment drug use, said a 2003 Knight-Ridder wire report.

And as employers are forced to cut back on costs, this also has lead to the common practice of reasonable suspicion drug tests, reports the American Management Association (AMA). Reasonable suspicion tests require no urine cup, swabs, or hair samples and they are perfectly legal if a company has it in their policy, says Weaver. They are the most cost-effective tests that a manager can carry out to weed out employees who they suspect are possible drug-users, even if they don't have substantial evidence to prove it.

“Employers create the policies, they can exempt classes of employees, as long as they don't engage in urinalysis testing as retaliation for protected speech, they can do pretty much what they want,” Weaver said. “I'm concerned when it appears to be random and indeed it's not, because here you have what would appear to be a neutral judgment process but it's subject to manipulation.”

While there are guidelines that transportation industry officials follow by law, to carry out reasonable suspicion drug tests, there are still no defined guidelines for private industry jobs, says Krause, and this concerns him.

“It does not appear that there is any reasonable suspicion guidelines for other industries, as there are for transportation,” he said.

HR consulting firms like Mercer, The Employers Consulting Group, and Verification Services, advise employers in their consultation guidebooks to look for signs of poor grooming, absenteeism, tardiness, poor work performance, impaired walking, irritability or paranoia, and a smell of alcohol, when carrying out a reasonable suspicion drug test.

An Employers Group representative, who did not wish to go on the record, said that the firm didn't consult with any federal guidelines when advising their clients on how to carry out a reasonable suspicion test. There aren't any, he said. But any employee who refuses to comply to a drug test on the grounds of those reasonable suspicion guidelines is subject to immediate dismissal.

Detractors argue that employees who suffer from chronic illness, sleep deprivation, stress, fatigue, emotional problems and anxiety, can meet any one of those criteria without being intoxicated. And if a person agrees to the drug test, the analysis of a person's urine, can disclose many details about that person's private health, he says.

“It can tell an employer whether an employee or job applicant is being treated for depression, epilepsy, bipolar disorder, or ADD—all personal and private conditions that a person shouldn't have to disclose to their employer,” Weaver said.

But this is not so for the transportation industry says Brown. Aside from undergoing “reasonable suspicion training” classes, supervisors with the Texas Department of Transportation are also required to follow a checklist when carrying out reasonable suspicion policies in regard to possible drug and alcohol testing.

“It's a pretty careful process. If their supervisor suspects that they might be under the influence, there is a checklist for that. We have a checklist for indicators of alcohol use, and another checklist for indicators of drug use…there's still various levels,” said Brown, “but we don't use it just to find a reason to terminate people.”

The Downside

Brazwell warns that prescription drugs such as Adderall (an amphetamine), which is prescribed for ADD , cross-intersects with illicit drug results, causing false positives in urine tests. The same can be said about other prescriptions. But she says that cross-contamination, broken chain of custody, or faulty maintenance is also to blame for other laboratory errors that arise in the drug testing industry.

According to a study, even a 99% accurate test produces one false positive result out of 100 people tested. And given that more that 30 million Americans were tested last year, this means there were 300,000 false results.

But when companies test about 30,000 urine samples a day, there is no motivation to be accurate beyond a cost-effective level, says an AMA report. So when an employee turns up positive, the easiest thing for a corporation to do is to terminate them.

“Unfortunately, there is very little protection for an employee if there were to be a mistake or an error in the drug test result,” says McQueen.

Sumi Texas Wire Case

In July of last year, a case was filed against local company Sumi Texas Wire, by five former El Paso employees whose urine test results initially showed up positive for illicit drugs; and later, negative.

John Wenke, the plaintiffs' attorney said the employees followed up with hair tests at another testing facility, and the tests showed up negative for any trace of drug use, he said. The former employees are filing a defamation suit against the employer and the testing facility.

The report says that local drug testing company Access Drug Testing, which performed the initial tests, allegedly mishandled the urine samples. Both sides will be taking depositions in the coming week, says Wenke.

“They did have a reasonable suspicion policy, a pre-employment testing policy and a random drug test policy in place,” said Wenke, of Sumi Texas Wire. “But there was never any previous record of drug use by my clients.”

Mario Gonzalez, the attorney representing Access Drug Testing, says the plaintiffs have no basis for bringing the claims that they brought against the company because of the scarce evidence they have to support their allegations of libel, slander and emotional distress.

“To suggest that my client somehow tampered with the evidence is ludicrous because there is no motive,” said Gonzalez.

When the law becomes settled, there is very little incentive to bring in a new case, explains Robert Pallitto, Political Science professor at UTEP. For example, the right of employers to test randomly for drugs is pretty well-established, he says.

“Then again, some of the litigation around the Patriot Act actually led to a change in law. Congress actually incorporated the ruling of a federal circuit court,” said Pallitto.

The problem, in cases such as these is that if the individual or individuals turn up positive, says Weaver, the record of that one positive test will haunt the employee for the rest of his career.

“Everytime you fill out a job application you're going to be asked why you left your last employer,” he said. “If you're being truthful as you're supposed to be, you have to tell your prospective employees that you were fired for violating the company's drug testing policy even if it was an error on the drug testing company's part.”

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