A federal appeals court in Denver has ruled that an employee fired based on the results of a federally-mandated drug test cannot pursue a private lawsuit against his employer for alleged violations of Oklahoma state drug testing law.  Williams v. UPS, No. 07-6035 (10th Cir. June 4, 2008).  (The Tenth Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.)

The plaintiff, a driver previously employed by UPS, swerved off the road late one night while on duty and overturned two trailers attached to the truck he was driving.  Company supervisors arrived at the scene and, after reportedly observing that the driver’s eyes were red, made him take a urinalysis drug test.  The drug test results were positive, and the driver was fired for violating the company’s drug policy. 

The driver brought an action against UPS under Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act (“ODTA”), seeking reinstatement, back pay and lost benefit payments.  He alleged that the drug test violated state-mandated procedural requirements for drug testing.  The employer sought to dismiss the case based on ODTA’s exemption for drug testing “required by and conducted pursuant to federal law.”  The district court ruled in the company’s favor and the former employee appealed.  

Department of Transportation regulations issued under the authority of the Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C. § 5331, (“OTETA”) mandate drug and alcohol testing of employees who work in certain positions in the aviation, trucking and other transportation industries.  Like the Oklahoma statute, federal drug testing regulations set forth specific procedural requirements to safeguard employees’ privacy and other rights.  There is no federal private right of action for violations of federal drug testing regulations.  Instead, federal law provides for administrative enforcement proceedings; employers may be subject to civil and criminal penalties for violations.  Oklahoma law, however, provides for a private right of action for violations of its statute.

The key issue on appeal was how to interpret the term “pursuant to” in the Oklahoma statute’s exemption provision.  As the Tenth Circuit Court of Appeals explained, “Black’s Law Dictionary defines ‘pursuant to’ as either ‘[i]n compliance with’ or ‘[a]s authorized by; under.’”  UPS argued that the drug test was both required by and complied with federal law; the plaintiff asserted that while the drug test was required by the OTETA, it did not comply with the procedural requirements of federal law. 

According to the court, the purpose of ODTA’s exemption provision is “to eliminate overlap of state and federal law, which gives both employers and employees advance notice as to which rules will apply to a particular drug test and prevents conflicting commands.”  This purpose could only be effectuated by employing the latter definition of “pursuant to,” the court concluded.   

For one thing, if ODTA’s exemption required full compliance with federal law, neither employees nor employers would know whether state or federal law applied at the time a test was administered.  Recognizing the burden employers face in determining how best to comply with procedural drug-testing requirements, the court emphasized, “An employer who knows in advance which rules apply to a drug test can plan a cost-effective means to comply with the law without concern that there may be a surprise addition to the procedural requirements later in the game.”  

The court also found it significant that if the statute’s exemption provision required full compliance with federal law, an employer which did not fully comply with federal requirements would be subject to a host of otherwise inapplicable state law requirements.  Finally, if the statute required full compliance with federal law, it would have the “odd consequence of making state juries (or federal juries, in diversity cases) the arbiters of compliance with complex federal regulations, despite Congress’s decision to employ administrative oversight.”  The court concluded, “[I]t would be ironic to interpret a provision of state law designed to avoid conflict with federal law as empowering state juries to make decisions entrusted by Congress to federal regulatory agencies”.