Balancing Anonymity and Accountability: The Place of Tips in Establishing Suspicion
The Fourth Amendment – a right recognized in the United States Constitution which allows the American people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[1] As companies have grown over the years, so has the need to drug screen those employees. Prior to drug testing any public employees based on anonymous tips, however, establishing reasonable suspicion is essential to avoid Fourth Amendment violations, as was the case in Greer v. McCormick.
In that case, Ralph Greer worked for the Detroit Department of Water and Sewage (“DWSD”) as a construction inspector.[2] On the morning of September 11, 2013, Greer was asked to submit to a drug test.[3] After a meeting with his union representative, Greer refused to submit to a drug and alcohol screening as it was his position that the DWSD lacked the foundation, reasonable suspicion, to have him tested.[4] Greer was given a 29-day suspension and was terminated the following month.[5]
Prior to ordering the test, DWSD’s General Counsel and Chief Compliance Officer had received a call from his public affairs director, stating that the affairs director herself had received a call from a local news channel. The news channel indicated that they allegedly received “proof” from an anonymous tipster which showed a man, later identified as Greer, in a DWSD vehicle smoking marijuana.[6] The tipster’s identity was eventually disclosed during the litigation and, during his deposition, the tipster stated that he never actually saw the employee light the cigarette and smoke it.[7]
The main issue at trial was whether the individual DWSD employees responsible for ordering the test had constitutionally supportable reasonable suspicion of on-the-job drug use when they decided to order Greer to undergo a urine drug test.[8] The court held that, unlike known or identified informants, anonymous tipsters, without more, are not reliable enough to be the sole grounds for ordering a reasonable suspicion drug test.[9]
Although reasonable suspicion does not have a clear definition, it is seen as more than a guess or hunch, but it requires less than probable cause. There is reasonable suspicion when there is some articulable basis for suspecting that the employee is using illegal drugs.[10] The court declared that DWSD made no effort to corroborate or establish the reliability of the tip.[11] At the time the urine test was ordered, no one at DWSD was aware of where the alleged videos/photos were taken, or by whom they were taken.[12] DWSD argued that the tip was corroborated, but no DWSD employee ever saw the evidence that had been reported to them.[13] Even two employees who claimed to have seen video footage of the incident after Greer had already been suspended did not claim to have identified or recorded the number of the vehicle in the footage.[14]
After discovery was complete, the defendants in this case sought a summary judgement based on qualified immunity.[15] Under the doctrine of qualified immunity, government officials are generally shielded from liability for civil damages as long as their conduct does not violate statutory or constitutional rights of which a reasonable person would have known.[16] To determine whether government officials are entitled to qualified immunity, the court asks two questions: First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff shown that a constitutional violation has occurred? Second, was the right “clearly established at the time of the violation?”[17]
After reviewing all of the facts and applying the above-mentioned two-part test, the court denied the Defendant’s motion for summary judgment, but held that Greer was able to carry his burden on his cross-motion for partial summary judgment.[18] Greer established that no reasonable juror could conclude that the DWSD employees had constitutionally supportable individualized reasonable suspicion when they ordered Greer to undergo a drug test and then later terminated him for refusing to test.[19]
The use of drugs in the workplace is an issue that every company, large or small, should concern themselves with. Although drugs and alcohol in the workplace is a known threat to safety and efficiency, employers should not jump to conclusions before ordering an employee to submit to a drug test. As established in Greer, an anonymous tip reporting an employee’s violation is not enough on its own to establish reasonable suspicion. An employer must conduct due diligence to corroborate an anonymous tip; otherwise, employers run the risk of violating employees’ Fourth Amendment protections.
