If approved by court, agreement reached protecting state employees from unconstitutional searches would end long legal battle in which ACLU, on behalf of AFSCME, challenged 2011 executive order by Gov. Rick Scott mandating broad, suspicionless testing

CONTACT: ACLU of Florida Media Office, media@aclufl.org, (786) 363-2737

MIAMI, FL – A settlement agreement reached between the State of Florida and representatives of state employees, submitted today for approval by a federal court, would bring to an end a years-long legal battle over an unconstitutional effort by Florida Governor Rick Scott to require all state employees under his authority to submit to mandatory urinalysis drug testing without suspicion of wrongdoing.

The settlement, if approved by the court, would resolve the case of AFSCME vs. Rick Scott, in which the American Civil Liberties Union (ACLU) of Florida, on behalf of the American Federation of Federal, State, County and Municipal Employees (AFSCME) Council 79, the state’s largest union of public employees, argued against the constitutionality of a 2011 executive order issued by Gov. Scott mandating the program.

“We are proud that we have reached this settlement on behalf of Florida public employees,” stated ACLU of Florida Staff Attorney Shalini Goel Agarwal. “Gov. Scott’s executive order rested on his belief that the state has the authority to require anyone it chooses to submit her bodily fluids for government inspection without reason or suspicion. By agreeing to this settlement, the Governor is finally conceding that he has no authority to mandate drug testing of employees in approximately three quarters of the job categories represented by AFSCME.”

Although courts have recognized that there are exceptions for employees in “safety-sensitive” positions, the Fourth Amendment protects public employees against unreasonable government searches without suspicion the same as members of the public. However, the 2011 executive order mandated all state employees and job applicants in executive branch agencies under the purview of the governor – accounting for about 77% of the state workforce – submit to the invasive tests of their bodily fluids, even if there was no suspicion of drug use or inability to perform job tasks.

In May 2011, the ACLU of Florida filed a lawsuit challenging Gov. Scott’s executive order on behalf of AFSCME Council 79, which represents approximately 34,000 public workers in approximately 1,400 different job “class codes” subject to suspicionless drug testing under the order.

In April 2012, U.S. District Judge Ursula Ungaro enjoined the executive order, ruling that requiring state employees to submit to invasive searches without suspicion of drug use violated the Fourth Amendment’s ban on unreasonable searches. In May 2013, the 11th Circuit Court of Appeals rejected the State’s argument that it had the legal authority to subject all employees to the searches as a condition of employment but remanded the case to the district court to make a specific determination of constitutionality as to each of the hundreds of job categories affected. Gov. Scott appealed that decision to the U.S. Supreme Court, which, in April 2014, declined to take up the case.

Attorneys for the State and the ACLU have since been working under the supervision of a special master ordered by the District Court and paid for by the parties to analyze every job category affected by the executive order based on whether they are “safety sensitive” and permissibly testable or not testable. In the settlement filed today, Gov. Scott agrees not to drug test employees in 1,133 of the approximately 1,400 job class codes represented by AFSCME impacted by his executive order.

“We are glad to have reached a settlement that would bring to an end the overly broad and unconstitutional crusade against so many of our members,” stated Jeanette D. Wynn, President of AFSCME Council 79. “Gov. Scott’s mandatory universal urinalysis plan, and the arguments he made in court to defend it, rested on the idea that everyone loses their constitutional protections when they choose to serve the people of Florida, regardless of their position. The settlement we’ve reached would significantly scale back that campaign, allowing a more limited testing program to go forward, while protecting the rights and dignity of many of our members who were unlawfully subject to suspicionless searches under the original Executive Order.”

Under the terms of the settlement, the State will be reimbursing the ACLU for a portion of its expenses and the time its attorneys spent challenging the constitutionality of the executive order. AFSCME and the State also agree that after this payment, the parties will stipulate to a dismissal of the lawsuit if the court agrees to enforce the terms of the settlement.

Approval of the settlement would also resolve the second of two lawsuits brought by the ACLU of Florida challenging suspicionless drug testing programs promoted by Gov. Scott during his 2010 election campaign and his first year in office. In December 2014, the 11th Circuit Court of Appeals found unconstitutional a 2011 law that required all applicants for the state’s Temporary Assistance for Needy Families (TANF) program to submit to searches as well. The State chose not to appeal that decision to the U.S. Supreme Court in March 2015.

“Gov. Scott came into office on a campaign that exploited myths and stereotypes about poor people and state workers and treated them like suspected criminals,” stated Howard Simon, Executive Director of the ACLU of Florida. “This settlement agreement marks the end of that campaign. What the TANF case and today’s settlement show is that the values that the Fourth Amendment protects – that none of us can be made to submit to invasive searches at the whim of the government – applies to all of us: rich or poor, private citizen or public servant.”

The settlement agreement was filed today in the U.S. District Court for the Southern District of Florida. A copy of the settlement agreement is available here: https://aclufl.org/resources/notice-of-settlement-afscme-council-79-v-scott/