 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Sensenig v. Unemployment Compensation Board of Review2/20/2004
a Fourth Amendment search. Id. What constitutes a reasonable search, which the Fourth Amendment permits, depends on all of the circumstances surrounding the search. Id.
Here, Employer observed Claimant drinking a beer no later than 7:30 p.m. on April 3, 2003. Employer, acting as an instrument of the government pursuant to state and federal law, then requested that Claimant submit to alcohol testing at 8:00 a.m. the next morning, more than twelve hours later. I submit that, under those circumstances, Employer's request to submit to alcohol testing was not reasonable. Indeed, the federal regulation prohibits any employer alcohol testing more than eight hours after observing an employee 's behavior. Because Employer required that Claimant submit to an unreasonable search, I would conclude that Employer's request violated Claimant's constitutional right to privacy. As I see it, when an employer violates an employee's constitutional right to privacy, the employee has a necessitous and compelling reason to quit.
III. Majority Opinion
In reaching a different conclusion, the majority appears to reject the UCBR's finding that Employer 's alcohol testing policy is the same as DOT's, stating that Employer has "its own stricter policy." (Majority op. at 4.) Without elaborating, the majority states, "Claimant, himself, admitted that there is a random drug and alcohol testing program and it can be utilized where an employer had a reasonable suspicion that the employee would be driving while impaired. (N.T. 9.)" (Majority op. at 4) (emphasis added). However, Claimant's testimony at "N.T. 9" does not admit the existence of such a policy.
CL What is your understanding as to ... the basis ... [upon which] a ... drug and alcohol test could be performed on you?
C Well it's pre-employment, that's required. Then there's a random testing programs required. And you have reasonable suspicion. And the way I understand the regulations to read, a trained supervisor must observe the employee as he reports for work, during his work hours or immediately following his work hours, acting suspiciously or acting under ... the influence. And that person must be ordered right then and there to go take a drug test. Not the next day, not the next week, it's ... got to be right now.
(N.T. at 9; R.R. at 15a.) I submit that the majority misconstrues Claimant's testimony as setting forth a hybrid "random" and "reasonable suspicion" testing policy. Claimant does not admit that Employer 's policy allows random testing when Employer has a reasonable suspicion about an employee . In fact, such a concept makes no sense. If alcohol testing is based on a reasonable suspicion, then the testing is not random. Moreover, here, Employer did not "randomly" select Claimant for alcohol testing; Employer demanded that Claimant submit to testing more than eight hours after Employer saw Claimant drinking beer at a restaurant and bar the previous evening.
Accordingly, unlike the majority, I would reverse.
ROCHELLE S. FRIEDMAN, Judge
Page 1 2 3 4 5 Pennsylvania DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|