California appeal court affirms Recology ruling in employee drug testing and counseling lawsuit

By Karen Kidd | Jan 5, 2019

California First District Court of Appeal Justice Martin J. Jenkins

SAN FRANCISCO — A state appeal court recently declined to revive a consolidated employee class action against San Francisco's largest recycling and solid waste company over its drug testing and counseling program.

In its 31-page opinion issued Dec. 28, a California First District Court of Appeal three-judge panel affirmed a lower court's "rulings disposing of each and every remaining cause of action" against San Francisco municipal waste hauler and recycler Recology. The appeal judges agreed with the lower court that Recology "was authorized to mandate drug treatment counseling and retesting for employees" to enforce the company's substance abuse and drug-free workplace policies, the opinion said.

"Plaintiffs failed their burden to raise any material triable issue in dispute of this fact and, as such, their claim was properly disposed of on summary adjudication," the opinion said.

Appeal court Justice Martin J. Jenkins wrote the opinion in which Justices Peter J. Siggins and Stuart R. Pollak concurred.

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The appeal court handed down its opinion in wide-ranging employee class litigation against defendants Recology, a garbage and recycling company that operates facilities at Pier 96 and 501 Tunnel Ave. Recology allegedly violated privacy and "other rights" of two certified classes in the case, "classifiers" at the Pier 96 facility and "Material Handlers" at the Tunnel Avenue facility, through its random drug testing program, according to background portions of the opinion.

In their third amended consolidated complaint field in November 2013, plaintiffs asserted claims that included unfair business practice and violations of the California Fair Employment and Housing Act (FEHA), California's Constitution and the Bane Act.

San Francisco City and County Superior Court previously dismissed all causes of action that remained in the long running litigation, granting Recology's motion for summary adjudication after sustaining the recycler's demurrers.

In their appeal, plaintiffs argued the superior court erred when it dismissed the case, claiming the summary adjudication was wrong as a matter of law. Among a number of other things, plaintiffs objected to the superior court's finding that their FEHA claim for illegal forced medical examination that neither the drug testing nor the required drug treatment counseling sessions qualify as FEHA-prohibited medical examinations. The superior court also found plaintiffs' return-to-work agreements barred their forced medical examination claim.

"We agree with both findings," the appeal court's opinion said, citing California Supreme Court precedent that employer-mandated medical examinations and drug testing are covered under federal and state law.

"Thus, both state and federal law do not equate drug testing with a medical examination, and do not prohibit or place general limitations on the right of an employer to mandate drug testing for its employees," the opinion said. "Moreover, we find nothing in these state or federal legal schemes prohibiting an employer's use of mandatory substance abuse counseling for those employees failing a drug test under circumstances, present here, where the counseling is offered to promote a safe and productive work environment and, more significantly, where the employee agrees in writing to the counseling in exchange for the right to return to work."

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