Court Stays Order Halting Firm’s Drug-Test Program

A state appeals court here Monday stayed a lower court decision that would have prohibited an Oakland book publisher from conducting a pre-employment drug-testing program.

The 1st District Court of Appeal, in a 2-1 vote, stayed the June 8 ruling of Alameda County Superior Court Judge Michael E. Ballachey, which barred pre-employment testing by Matthew Bender & Co., a wholly owned subsidiary of Times Mirror Co. that publishes legal books.

Ballachey issued a preliminary injunction June 8 barring Bender from using such testing as a condition of employment. He said two rejected job seekers challenging Bender’s testing program were likely to prevail when the case comes to trial.

He said there was insufficient evidence that testing deters drug use or conclusively shows whether an applicant will present a risk in the workplace, even though he said drug abuse was “undermining the very fabric of society.”

Monday’s brief order, signed by appellate Justices Betty Barry-Deal and Gary E. Strankman, said simply that Ballachey’s injunction is stayed pending the outcome of an appeal by Matthew Bender or another judicial ruling. Justice Clinton W. White dissented.

“We are delighted by the stay,” said Rex S. Heinke of the Los Angeles law firm of Gibson, Dunn & Crutcher, which represents Matthew Bender and Times Mirror. “We believe it is a strong indication we will ultimately prevail on the appeal.”

Matthew Bender had suspended hiring new employees in California after Ballachey’s ruling, pending further developments in the case. On Monday, Heinke said the company “will promptly resume hiring and as part of” the hiring process require job applicants to undergo alcohol and drug screening.

John True, one of the lawyers for the plaintiffs, said, “I’m not happy about what happened.” True, an attorney with the Employment Law Center, a public-interest law firm here, said: “We think the trial court was right. There is no plausible connection between drug testing and on-the-job performance.”

He said the plaintiffs’ lawyers, including the American Civil Liberties Union, would ask the state Supreme Court to review the granting of the stay. However, it would be very unusual for the high court to overturn such a stay.

The case was filed by two UC Berkeley graduates who claimed that they were improperly denied writing and editing jobs after they refused to take drug tests required by Bender. They asserted that across-the-board drug and alcohol screening violates the state Constitution’s right to privacy and state statutes that prohibit unfair business practices and the disclosure of confidential medical information.

Lawyers for the company replied that employers are lawfully entitled to determine an applicant’s medical history and asserted that testing for drugs and alcohol is no more an invasion of privacy than testing for ailments such as diabetes.

Ballachey’s ruling was the first in California where a judge had thrown out a pre-employment testing program in the private sector.

Henry Weinstein reported from Los Angeles and Philip Hager from San Francisco.