Firms Have Some Latitude in Setting Drug-Test Policy

Q The company I work for has a very clear drug policy. All new hires are required to provide a urine sample prior to starting work. In addition, employees must undergo drug testing after any accident at the office, on a job site or on company time.

I feel the policy is fair. However, a friend recently told me that attorneys at his company told executives that any drug testing other than pre-employment is illegal in California. Is this true?

--J.S., Los Angeles

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A No. In addition to pre-employment testing, an employer may test employees if there is a reasonable suspicion that they may be impaired by illegal drugs.

This suspicion can be aroused by peculiar employee behavior, sudden erratic attendance, a physical appearance suggesting drug use, eyewitness accounts by co-workers of drug use or an accident that might be attributable to drug use.

A policy that requires testing after any job-related accident might be too broad, however, because there are some accidents that cannot under any circumstances be attributed to an employee’s impairment by drugs. An example would be an employee who is rear-ended while driving a company vehicle.

If there is a reasonable basis to assume that an accident could have been caused by drug or alcohol impairment, however, testing is permissible.

A drug policy, moreover, should not prohibit employees from coming to work “under the influence” of drugs or alcohol. Although such a policy is not illegal, it is difficult to enforce, because whether someone is indeed “under the influence” is a subjective judgment.

The better approach is to prohibit employees from coming to work with illegal drugs in their systems, since current clinical drug screens can determine, with virtual scientific certainty, whether someone has illegal drugs in his or her system.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Employer Has Right to Open Employee Mail

Q My employer continually opens mail sent to me. I have told my employer that I do not appreciate this, but I have been told that the company can open any mail that comes into the office. Is it legal to open mail sent to an employee?

--R.M., Downey

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A It is legal unless the employer has a policy against opening mail sent to an employee. Although you do have a reasonable expectation of privacy at work, it is not an unlimited one.

It is unreasonable for you to expect your employer not to open mail that comes to its address. Imagine the burdens such a policy would place on the mail room, which would have to assess whether a particular item of correspondence is personal in nature and should not be opened.

If you do not want personal mail opened, I would suggest that you not make a habit of having it sent to your workplace.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Bonus Pay Rules Not Typically Enforced

Q I work for a small consulting firm. All employees are required to enroll in the 401(k) program after completing one year of service.

Employees who do not voluntarily enroll are signed up anyway and forced to select the accounts to which they will contribute. Although we are not required to make contributions out of our paychecks, all bonuses are paid to the 401(k) program.

Naturally, this arrangement has caused a lot of complaints and dissatisfaction. Is it legal?

--J.G., Los Angeles

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A Your employer has the right to decide whether your bonuses will be paid directly to you or to your retirement plan. However, rules governing Section 401(k) plans generally require that contributions on behalf of employees making more than $80,000 not be a greater percentage of their compensation than the percentage contributed on behalf of the employees making $80,000 or less. It would be unusual for a bonus arrangement to satisfy those rules, unless the bonuses are the same percentage for all employees, or are a fixed dollar amount, which would result in contributions of a higher percentage for employees making under $80,000.

The Internal Revenue Service is the only agency that can enforce those rules, but the IRS generally disregards complaints from employees about their employer’s retirement plan, preferring to stay out of disputes between employees and employers.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.