Gambling Background Checks: Sidebar on Drug Testing

Update June 6, 2012: The Governor vetoed the mandatory drug test provision, but the Legislature overrode the veto. So now there’s precedent in state law for requiring drug tests for positions that are not directly related to pubic safety.

A bill the Legislature sent to the Governor yesterday included a change to the gambling law. The change would REQUIRE the Gaming Commission to conduct extensive background checks on all employees. Current law ALLOWS for these background checks but doesn’t require them. One of the background checks is a test for “the presence of illegal substances in the body,” which is to say a urine test. The Governor vetoed the change late on Friday, saying that “the highest levels of background checks and screening may not be necessary nor appropriate for every employee.”

(This controversy was started when the Governor announced his selection for Interim Executive Director of the Gaming Commission. Doubts were expressed about whether allegations of inappropriate behavior of a sexual nature that were made against Patrick’s nominee five years ago made him an inappropriate choice for the job. The nominee withdrew from consideration earlier this week.)

Workplace drug tests have usually been reserved for those jobs involving responsibility for the safety of the public, like bus drivers. The argument for requiring them much more broadly here is the particular susceptibility of the gambling industry to corruption, which (the argument goes) justifies drug tests for all of the state workers regulating the industry. (This despite the well-known facts that mandatory drug tests lower worker morale while remaining unproven as a means of stopping drug use.)

But if drug tests are mandated for Gaming Commission employees, why stop there? Why not child welfare employees – do we care more about gambling than we do about our children? And if it’s appropriate to require a urine specimen of the Executive Director of one state commission, why not all state commissions? Why not demand one from anybody whose salary comes from the taxpayers, including the members of the Legislature, who will be deciding whether to override the Governor’s veto? And finally, why not just allow any employer — public or private — to drug test any employee, regardless of what the worker’s job is or whether it has any connection to public safety?

The American Legislative Exchange Council (ALEC) would welcome that prospect. One of the priorities of that cabal of corporate interests, is the Workplace Drug Testing Act, which would allow employers to test any worker for drugs any time they wanted to. It wouldn’t matter what the worker’s job was. The Act would also create a presumption that the testing was accurate and would make employers immune from employee lawsuits.

So now our state government is spending its time considering the expansion of drug tests in the workplace. Just one more upside of letting casinos talk their way in the door.

(For those who want to see the law involved, here is the current background check statute. The Legislature wants to change the third word from “may” to “shall,” and the Governor wants the law to stay the way it is:

The commission may require a prospective employee to: (i) submit an application and a personal disclosure on a form prescribed by the commission which shall include a complete criminal history, including convictions and current charges for all felonies and misdemeanors; (ii) undergo testing which detects the presence of illegal substances in the body; (iii) provide fingerprints and a photograph consistent with standards adopted by the state police; and (iv) provide authorization for the commission to conduct a credit check. The commission shall verify the identification, employment and education of each prospective employee, including: (i) legal name, including any alias; (ii) all secondary and post secondary educational institutions attended regardless of graduation status; (iii) place of residence; and (iv) employment history.)

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