In January 2016, Casey’s notified employees at its Ankeny warehouse about a new drug-testing policy authorized under Iowa Code section 730.5. That statute allows private employers to conduct drug and alcohol testing in compliance with detailed safeguards set out in the code and consistent with the employer’s own written policy with proper notice to employees. The employer may test on an unannounced and periodic basis.
The employer may elect to test employees selected from certain pools: (1) “[t]he entire employee population at a particular work site,” (2) “[t]he entire fulltime active employee population at a particular work site,” or (3) “[a]ll employees at a particular work site who are in a pool of employees in a safety-sensitive position and who are scheduled to be at work at the time testing is conducted.” For unannounced drug testing, employees must be selected “based on a neutral and objective selection process” and “by an entity independent from the employer” using a “computer-based random number generator.” The procedure should ensure “each member of the employee population subject to testing has an equal chance of selection for initial testing.” The testing “shall be carried out within the terms of a written policy,” and such policy must be “provided to every employee subject to testing” and “available for review by employees.”
The statute allows employers to take disciplinary action against employees who test positive or refuse to test including termination of their employment. And the statute gives “an aggrieved employee” a civil cause of action against “[a] person who violates this section.” But the statute affords an employer immunity from a cause of action if the employer acts in good faith following a positive test if the employer “has established a policy and initiated a testing program” in accordance with the safeguards in the statute.
Casey’s contracted with an outside laboratory, ARCpoint, to select the employees and administer the tests. Casey’s also contracted with an outside lab to conduct the medical review. In April 2016, Dix, Cattell, McCann, and Eller all worked at Casey’s Ankeny warehouse. Casey’s designated all warehouse employees as holding safety-sensitive positions. When those employees received notice of the new policy, they signed an acknowledgment of their understanding.
Casey’s administered its first unannounced test on April 6, 2016. The day before, Casey’s gave ARCpoint a roster of the 184 employees scheduled to work at the warehouse. Casey’s asked ARCpoint to select 90 percent of the names for testing. To select employees to be tested, ARCpoint used an Internet-based random number generator, called Research Randomizer. The four plaintiffs were on the list of selected employees.
Cattell, Dix, and McCann gave their samples as directed. Cattell and McCann both tested positive for marijuana and amphetamine; Dix tested positive for marijuana. Casey’s ultimately fired all three. Eller did not provide a specimen sufficient for testing on the first try. Casey’s provided her water to drink, but she was still unable to provide a sufficient sample on the second try. At that point, Eller chose to leave, and Casey’s deemed her action to be a voluntary resignation.
Cattell, Dix, Eller, and McCann filed civil claims against Casey’s under section 730.5(15). The district court consolidated their actions. After extensive pretrial litigation, the parties tried the claims to the bench.
JUDGE TABOR At trial, the employees alleged Casey’s violated the statute in numerous ways. Their threshold allegation dealt with the selection of the employees to be tested. The statute defines a “safety-sensitive position” to mean “a job wherein an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage, including a job with duties that include immediate supervision of a person in a job that meets the requirement of this paragraph.” Casey’s policy statement uses virtually identical language to define a safety-sensitive position. And Casey’s notice to employees about the policy stated it would only test those in safety-sensitive positions. Casey’s now asserts every employee working in the warehouse had a safety-sensitive position.
Casey’s argues, with forklifts “zipping” around and boxes stacked to the ceiling, an accident could result in anyone at the warehouse getting hurt. That argument did not convince the district court, which emphasized it is not the warehouse environment but the duties the particular employee discharges that determine whether the job is safety-sensitive:
[T]he fact that a light-duty warehouse employee (or a human resources employee) is injured in the warehouse when struck by an errant forklift driver does not make the former a safety-sensitive position. It is the operation of the forklift that makes its driver a safety-sensitive position, not the environment in which it is operated.
Other jurisdictions agree job duties determine the employee’s status. With that legal foundation in mind, we look to the plaintiffs’ job duties. Without question, Cattell and Dix did heavy-duty work—building inventory pallets and operating forklifts. So they were properly included in the pool of safety-sensitive employees. Not so with Eller and McCann, who did light-duty work.
An employer who violates section 730.5 is liable for “affirmative relief including reinstatement or hiring, with or without back pay, or any other equitable relief as the court deems appropriate.” Iowa Code § 730.5(15)(a). The district court awarded McCann \($94,889.05\) in back pay but denied his claim for front pay.
The court awarded Eller \($85,630.75\) in back pay and \($96,871.72\) in front pay. Because we find no reversible errors in the district court’s ruling, we affirm.
CRITICAL THINKING:
Do you agree with the court’s ruling? Should the company’s decision to deem “all” warehouse employees to be in safety-sensitive positions have been respected?
ETHICAL DECISION MAKING:
Is it fair that two employees who tested positive for drugs receive back pay and/or front pay? Is the presence of illegal drugs in a person’s system ever acceptable?