Those of you who follow me on twitter know that last night, I tweeted that my next post would be about HOBY, or, more specifically, HOBY NY-East.  I’m still working on that post.

However, I was compelled to post about a particularly ignorant and disturbing meme I’ve seen on Facebook lately:

Florida is the first state that will require drug testing when applying for welfare (effective July 1st)! Some people are crying this is unconstitutional. How is this unconstitutional yet it’s okay that every working person had to pass a drug test in order to support those on welfare? Re-post if you… agree!!! Let’s get Welfare back to the one’s who NEED it, not those that just WANT it!!!

Now, the reason this is disturbing is not because of the law itself.  I haven’t read the law.  I don’t live in Florida, so I don’t know the specifics behind it.  Based on the premise alone, I have mixed feelings about it, and yes, I do question it’s constitutionality based on my very limited knowledge of this law.  Even if it is constitutional, it still may violate the federal terms of the Temporary Assistance for Needy Families block grant, which is administered by the federal government, not the State of Florida. The states manage it, and are usually given aditional federal funds to manage the process.  So, therefore, even if it is constitutional and the feds say it is OK for Florida to manage it as such, it probably will not save the State of Florida one red cent.  This law is political posturing and nothing else.  I don’t necessarily find this disturbing.  Dismaying, perhaps, however also unsurprising – most laws passed are done so more as political posturing and less as actual sound public policy.

What do I find disturbing is, yet again, that the average American does not understand what their rights and responsibilities as an employee are.  A friend of mine linked to an article recently on her Twitter account, detailing what rights you ARE NOT entitled to as an employee, but may think that you are entitled to.  As an HR professional, I read it and nodded my head.  “Yup, yup, yup …”  I then responded to her stating how dismayed I was, yet again, that people don’t understand their rights and responsibilities.  She responded back indicating that she was among those who were stunned to learn that our rights as employees are not as expansive as she thought.

In this case, the meme is stating that “every working person” has to take a drug test to get a job.  Um … no,  not true.  Private employers, depending on state laws, may give drug tests as part of initial employee screenings, however in most cases they must have a firm and consistent policy in place to protect themselves.  One major employment group comes to mind that does not drug screen, nor are they allowed to by law:  government employers.

Sure, some government employees are given drug screenings – they’re usually the ones who work directly with health and safety, and even not all of them are screened.  Compulsory drug testing contradicts the 5th amendment, so therefore government employers cannot mandate drug testing without a compelling reason (for example, hiring a correction officer, who will be working directly with convicted felons).  The same logic applies to the 1st amendment – for example, if you post on your twitter, “My boss is a total jerk, I hate him and I wish he would quit!”, as a public sector employee you cannot be fired.  You cannot even be counseled.  So long as you did it when you were at home and not using work time or work resources to post this comment, there cannot be any recourse whatsoever.

However, for those who are NOT civil servants, New York is an at-will employment state.  What this means is, you can be fired without cause provided you are not otherwise protected by some other law or contract.  For example, many government employees are protected by the Civil Service Law (though not all, and they fall under at-will employment). Employees in a unionized environment may have protections under their collective bargaining agreements.  Even non-unionized employees may have protections via an employment contract, depending on their terms and conditions of hire.  However, the vast majority of employees in New York State work for an at-will employer.

If you work for an at-will employer, they can set whatever terms and conditions they want provided they do not violate state and federal employment laws.  At many employers, one of these terms is a clean drug screening, and people who use illegal drugs are not (necessarily) a protected class. (However, just to clarify, drug addicts who are actively seeking treatment MAY be a protected class, depending on the circumstances.  For example, you can take corrective action against someone for being under the influence at work, but you may not be able to fire an alcoholic if he/she has checked into a rehabilitation program, depending on the circumstances.)

Now, most employers won’t fire you without cause and documentation, primarily because even if you live in an at-will employment state, there are a litany of laws that protect you, such as the Americans with Disabilities Act, the Family Medical Leave Act, the Equal Employment Opportunity Act, the Civil Rights Act, etc.  In New York, we also have the Human Rights law, which is even more expansive.  You can’t fire someone because he/she is gay.  You cannot fire someone for supporting a political candidate who supports gay marriage. You MAY be able to fire someone for sending out email blasts and solicitations to other employees regarding this – or any – political topic, particularly if done on the clock using company resources, and depending on your technology use policies.  Employers, to protect themselves, also should have consistent applications of these policies.  For example, if you fire someone for sending out information about a gay marriage rally, but don’t fire someone soliciting donations for Mike Long, then the employer can be sued.  Because, now, you’re not firing the employee for misuse of company property, you’re firing the employee because you don’t like his/her political stance.

Now, what does this have to do with welfare recipients being drug tested?  Not a whole lot.  Like I said – I don’t know that much about the law, and I am not prepared to debate a law on its merits when I don’t have the particulars.  However, I can tell you that being drug tested for your job is your employers’ choice, and the state you live in just happens to allow employers to exercise this preference.  This allowance in no way makes a similar tack appropriate for the purpose of doling out government assistance.

I should post a disclaimer on here, per my employer’s technology policy, that in no way the views expressed here are that of my employers, current or past.  I won’t post this on every post, but seeing as I am speaking here as an HR professional, and the things written are based on my knowledge and expertise in this field, it’s appropriate to mention it on this post. 

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