Tyler Dix, Jason Cattell, Jimmy McCann, and Julie Eller v. Casey's General Stores, Inc. and Casey's Marketing Company

IN THE SUPREME COURT OF IOWA
No. 18–1464

Submitted October 14, 2020—Filed June 25, 2021

TYLER DIX, JASON CATTELL, JIMMY McCANN,
and JULIE ELLER,

Appellees,

vs.

CASEY’S GENERAL STORES, INC. and
CASEY’S MARKETING COMPANY,

Appellants.

Appeal from the Iowa District Court for Polk County, Michael D.

Huppert, Judge.

Employees and employer both seek further review from court of

appeals decision following bench trial asserting numerous violations of

workplace drug-testing statute. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

Oxley, J., delivered the opinion of the court, in which Appel,

Waterman, and Mansfield, JJ., joined. McDermott, J., filed an opinion

concurring in part and dissenting in part, in which Christensen, C.J., and

McDonald, J., joined.

Rebecca Reif (argued) and Lindsay A. Vaught of Ahlers & Cooney,

P.C., Des Moines; Ann H. Kendell and Amanda G. Jansen (until

withdrawal), of Brown, Winick, Graves, Gross, Baskerville and
Schoenebaum, P.L.C., Des Moines, for appellants.
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David R. Albrecht (argued) and Amy R. Beck of Fiedler Law Firm,

PLC, Johnston, and Matthew M. Sahag of Dickey & Campbell Law Firm,

PLC, Des Moines, for appellees.

Leslie C. Behaunek of Nyemaster Goode, P.C., Des Moines, for

amicus curiae Iowa Association of Business and Industry.
 3

OXLEY, Justice.

Workplace drug testing is a controversial topic that pits an

employer’s right to a drug-free workplace against the privacy interests of

its employees. Prior to 1998, private employers were statutorily precluded

from testing employees without a sufficient reason for doing so. The Iowa

general assembly revamped its drug-testing statute to allow suspicionless

drug testing, putting in place specific requirements for carrying out an

unannounced testing program. Private employers who choose to engage

in workplace drug testing must comply with the detailed and
comprehensive statutory scheme or face civil liability.

After Casey’s amended its drug-testing policy to allow for

unannounced random drug testing, its first testing endeavor ran into some

snags. Three employees who tested positive and were terminated and

another who failed to provide an adequate sample and was deemed to have

resigned brought an action under the civil remedies provision of Iowa Code

section 730.5 challenging a number of areas where they claim Casey’s

failed to follow statutory requirements.

This case raises significant issues under Iowa’s private employer

drug-testing statute, including when an employer is entitled to immunity,

what it takes to comply with the statutory requirements, the meaning of

“safety-sensitive positions,” and the process for selecting employees for

testing, among others. We affirm the district court’s conclusion that two

employees were improperly classified as engaged in safety-sensitive

positions, so they should never have been tested and were entitled to the

relief the court granted. The other two employees were not aggrieved by

Casey’s actions in attempting to comply with the statutory requirements,
so we also affirm the district court’s judgment as to those employees.
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I. Factual Background and Proceedings.

Julie Eller, Jimmy McCann, Jason Cattell, and Tyler Dix were

employed by Casey’s Marketing Company1 and Casey’s General Stores

(collectively “Casey’s”) in its Ankeny headquarter distribution warehouse.

Eller and McCann had each suffered workplace injuries resulting in

medical restrictions, so they worked on light duty, sorting cigarette

returns. Employees assigned to light duty worked within “the cage,” a

chain-link structure that surrounded them on all sides within the

warehouse area of the facility. Dix and Cattell worked on heavy duty,
operating forklifts and lifting heavy objects.

In early 2016, Casey’s amended its Drug and Alcohol Testing Policy

to add unannounced random testing of employees in a pool of safety-

sensitive positions to its current policy. The district court found Casey’s

implemented the suspicionless drug-testing program based, at least in

part, on concerns of suspected widespread drug use among warehouse

employees. On January 26, 2016, Casey’s disseminated the new policy to

its employees located in the Service Warehouse, the Distribution Center

Warehouse, and the Vehicle Maintenance Departments, including the

employees involved in this case. All four employees signed the new policy,

acknowledging they read and understood it.

The new policy adopted much of the language of Iowa Code section

730.5, including its definition of a “safety-sensitive position.” Casey’s

treated all four employees as being in safety-sensitive positions on the

basis that all employees working in a warehouse setting, regardless of their

specific job description, held such positions.

1Casey’s Marketing Company was the actual employer, but we follow the parties’
lead and refer to the defendants collectively as “Casey’s.”
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Casey’s arranged for its first drug testing under the new policy with

an outside vendor, ARCpoint Labs. On April 5, Casey’s provided a list of

184 employees who were scheduled to work on April 6 between 10:00 a.m.

and 2:00 p.m. to ARCpoint Labs and requested it randomly select 90% of

those employees for testing. Casey’s agreed to ARCpoint’s suggestion that

the unselected employees be placed into a pool of alternates. This resulted

in 167 employees selected for testing and 17 employees selected as

alternates. All four plaintiffs were on the initial randomly-selected list for

testing.
The drug test took place the next day, April 6, and was administered

by two Casey’s employees trained to do so, though other employees

without training assisted. As it turned out, every employee from the list of

scheduled employees who showed up to work was tested, including all

alternates, except two employees who were on the original list but

overlooked due to an apparent oversight.

On the day of the test, Casey’s vice president Jay Blair gathered the

employees in the warehouse and announced the test. He advised them

not to discuss with Casey’s any prescription drugs they were taking. He

further told the employees they could decline to provide a urine sample

but Casey’s would regard refusal to provide a sample as a resignation.

Casey’s did not provide a list of the drugs to be tested at this time.

Casey’s used the warehouse locker rooms to gather urine samples.

Employees were sent to the locker rooms in pairs, where they used the

restroom stalls to provide their samples. McCann, Cattell, and Dix all

provided samples. None of them testified anyone specifically invaded their

privacy when they provided the samples, but there were gaps between the
bathroom stalls that could be seen through, and the sides of the stalls

were short enough to be seen over. All three samples tested positive:
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marijuana for Dix and marijuana and amphetamines for Cattell and

McCann. All three employees were subsequently fired.

Eller attempted to provide a sample but did not produce a large

enough urine sample. She tried again an hour later but again did not

produce a large enough sample. At this time, she left, since her shift had

already ended and she had other plans. Under Casey’s policy, Eller’s

departure constituted a refusal to take the test, and she was deemed to

have voluntarily resigned.

All four employees brought actions against Casey’s alleging various
violations of Iowa Code section 730.5. The district court consolidated their

cases and held a bench trial. Concluding that substantial compliance

rather than strict compliance was the proper standard for assessing

compliance with section 730.5, the district court found Casey’s complied

with the statute except for three specific violations: Eller and McCann

should not have been included in the pool of employees subject to testing

because they did not hold “safety-sensitive positions,” Casey’s failed to

provide employees an opportunity to present information relevant to the

drug test, and Casey’s failed to provide the list of drugs to be tested on the

day of the test. The court found Eller and McCann were fired as a result

of Casey’s statutory violation and awarded them damages, rejecting

Casey’s argument they each failed to mitigate damages. The court denied

all of Cattell’s and Dix’s claims for relief because the founded violations

did not cause their terminations.

Casey’s appealed the district court’s order as to Eller and McCann,

and Cattell and Dix cross-appealed the district court’s denial of relief. We

transferred the appeal to the court of appeals, which upheld the district
court’s ultimate ruling. Casey’s, Dix, and Cattell sought further review,

which brings us here.
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II. Standard of Review.

The parties disagree about the correct standard of review. Casey’s

argues the standard of review is de novo. The employees argue the

standard of review is for errors at law, citing Sims v. NCI Holding Corp.,

759 N.W.2d 333, 337 (Iowa 2009) (reviewing for errors of law in a section

730.5 case).

“[O]ur review of a decision by the district court following a bench

trial depends upon the manner in which the case was tried to the court.”

Carroll Airport Comm’n v. Danner, 927 N.W.2d 635, 642 (Iowa 2019)
(quoting Collins Tr. v. Allamakee Cnty. Bd. of Supervisors, 599 N.W.2d 460,

463 (Iowa 1999)). Where the case was “tried at law, our review is for

correction of errors at law.” Id. If the case was tried in equity, our review

is de novo. Id.; see also Longfellow v. Sayler, 737 N.W.2d 148, 152 (Iowa

2007) (“The standard of review on appeal is not governed by how the clerk

docketed the case, but rather by how the parties tried the case in the

district court.”).

“To determine a proceeding as legal or equitable, we look to the

pleadings, relief sought, and nature of the case.” Hedlund v. State, 930

N.W.2d 707, 718 (Iowa 2019) (considering the whistleblower statute in

Iowa Code section 70A.28). The parties sought back pay and front pay

under section 730.5, which is limited to equitable relief, see Iowa Code

§ 730.5(15)(a)(1) (2016) (authorizing “affirmative relief including

reinstatement or hiring, with or without back pay, or any other equitable

relief as the court deems appropriate”), indicating the case was tried in

equity, see Hedlund, 930 N.W.2d at 718 (reviewing case in equity based on

availability of similar relief under Iowa Code section 70A.28(5)(a)).
While ruling on evidentiary objections at trial is a “hallmark of a law

trial,” Passehl Est. v. Passehl, 712 N.W.2d 408, 414 n.6 (Iowa 2006)
 8

(quoting Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980)), the

unavailability of a jury trial is considered a hallmark of an equitable action,

see Westco Agronomy Co. v. Wollesen, 909 N.W.2d 212, 225–26 (Iowa

2017). Both “hallmarks” are present here. None of the plaintiffs requested

a jury trial, which is consistent with our recent holding that a statutory

claim under subsection (15) is the exclusive remedy for violations of

section 730.5 and no jury trial is allowed. See Ferguson v. Exide Techs.,

Inc., 936 N.W.2d 429, 431, 434–35 (Iowa 2019) (per curiam) (remanding

for entry of judgment for employer on employee’s common law wrongful
discharge claim and vacation of the jury’s award of damages not available

under section 730.5(15)(a)). However, the district court also ruled on

evidentiary objections throughout the trial. Nonetheless, we conclude the

case was tried in equity based on the unavailability of a jury, the relief

requested and ordered, and the inconsequential nature of any evidentiary

rulings to this appeal. See Passehl Est., 712 N.W.2d at 414 n.6 (“Where,

as here, no one claims the trial court improperly excluded evidence, the

trial court’s ruling on objections does not prevent a de novo review.”); see

also Carroll Airport Comm’n, 927 N.W.2d at 642 (concluding case was tried

in equity despite evidentiary objections by trial court).

We therefore review the case de novo, under which “[w]e give

deference to the factual findings of the court but are not bound by them.”

In re Est. of Johnson, 739 N.W.2d 493, 496 (Iowa 2007). “Of course, under

a de novo review we will make our own legal conclusions, as we are not

bound by and give no deference to the trial court’s conclusions of law.” Id.

III. Analysis.

The parties raise a number of issues surrounding Iowa Code section
730.5, which governs workplace drug testing of employees and potential

employees. Section 730.5 is a comprehensive statute creating a detailed
 9

scheme employers must follow in utilizing workplace drug testing. Various

parts of section 730.5 are relevant to this appeal, and we start with an

overview before turning to the specific provisions at issue.

Prior to 1998, private sector employers in Iowa could drug test

employees as part of preemployment screening, a regularly scheduled

employment physical, or on probable cause an employee was impaired on

the job and specific conditions were met. See Iowa Code § 730.5(3), (7)

(1997). Private sector employers could not “request, require, or conduct

random or blanket drug testing of employees.” Id. § 730.5(2).
In 1998, the general assembly passed House File 299, titled “An Act

Concerning Drug and Alcohol Testing of Private Sector Employees and

Prospective Employees and Providing Remedies and an Effective Date,”

replacing section 730.5 with a comprehensive (“byzantine” according to

the court of appeals) workplace drug-testing scheme that now also allows

private employers to conduct unannounced random drug testing. 1998

Iowa Acts ch. 1011 (codified at Iowa Code § 730.5 (1999)); see also

Ferguson, 936 N.W.2d at 436 (identifying section 730.5 as setting public

policy of the state concerning drug testing in the workplace and providing

exclusive remedy for termination claims related to drug testing). We have

described section 730.5 as providing “severely circumscribed conditions

designed to ensure accurate testing and to protect employees from unfair

and unwarranted discipline.” Harrison v. Emp. Appeal Bd., 659 N.W.2d

581, 588 (Iowa 2003).

A. Whether Iowa Code Section 730.5 Requires Substantial or

Strict Compliance. The first issue we must address is how strictly to hold

an employer to the statutory requirements in section 730.5 in determining
whether it has violated those requirements. Section 730.5(4) states that

“[a]n employer shall adhere to the requirements of this section concerning
 10

the conduct of such testing and the use and disposition of the results of

such testing.” Iowa Code § 730.5(4). While we have not previously

determined whether strict compliance or substantial compliance applies

to the entirety of section 730.5, we have held subsection 730.5(7)(i)(1),

requiring certain notices be provided to employees following an initial

positive test, is subject to a substantial compliance standard. See Sims,

759 N.W.2d at 338.

Despite our holding in Sims, the employees here argue we should

require strict compliance with the rest of section 730.5. In support, they
note the frequent use of the word “shall” throughout the section. See Iowa

Code § 4.1(30)(a) (“[W]henever . . . used in a statute . . . [t]he word ‘shall’

imposes a duty.”). We rejected a strict compliance standard in Sims

despite subsection (7)(j) alone using the word “shall” nine times. See Iowa

Code § 730.5(7)(j). Moreover, we apply substantial compliance to many

other statutory requirements with potentially serious consequences. See,

e.g., State v. Weitzel, 905 N.W.2d 397, 406 (Iowa 2017) (guilty plea

colloquy); E. Cent. Cmty. Sch. Dist. v. Miss. Bend Area Educ. Agency, 813

N.W.2d 741, 746 (Iowa 2012) (school district reorganization); State v. Bird,

663 N.W.2d 860, 862 (Iowa 2003) (preliminary breath test machine

calibration).

“Substantial compliance is said to be compliance in respect to

essential matters necessary to assure the reasonable objectives of the

statute.” Sims, 759 N.W.2d at 338 (quoting Superior/Ideal, Inc. v. Bd. of

Rev., 419 N.W.2d 405, 407 (Iowa 1988)); see also Harrison, 659 N.W.2d at

586 (“[S]ubstantial compliance is compliance with respect to those

requirements that are necessary ‘to assure the reasonable objectives’ of
the statute are met.”). Iowa Code section 730.5 seeks to protect the

“employer’s right to ensure a drug-free workplace” and ensure the
 11

accuracy of drug tests used for adverse employment actions while also

protecting “employees who are required to submit to drug testing.” Sims,

759 N.W.2d at 338; see also Harrison, 659 N.W.2d at 586–87. Employing

a substantial, rather than a strict, compliance standard strikes a proper

balance between these sometimes competing purposes behind section

730.5, particularly in light of the detailed conditions placed on employers

in carrying out a drug-testing program. Holding an employer liable for

even the slightest technical violation of the comprehensive drug-testing

scheme would defeat its purposes.
Consistent with the purposes of section 730.5 and Sims, we

conclude that section 730.5 claims should be evaluated using a

substantial compliance standard. This standard balances the interests of

the employer and the employee. Thus, “if the employer’s actions fall short

of strict compliance, but nonetheless accomplish the important

objective[s]” expressed by the particular part of section 730.5 in issue, “the

employer’s conduct will substantially comply with the statute.” Sims, 759

N.W.2d at 338; see also Weitzel, 905 N.W.2d at 407–08 (holding

substantial compliance with guilty plea colloquy required court to inform

criminal defendant of “each requirement” or “each provision of rule

2.8(2)(b)” and concluding that “[t]he district court’s outright and wholesale

omission regarding the criminal penalty surcharges cannot pass the

substantial compliance threshold” (first quoting State v. Meron, 675

N.W.2d 537, 544 (Iowa 2004))).

“[S]ubstantial compliance” with a statute means actual
compliance in respect to the substance essential to every
reasonable objective of the statute. It means that a court
should determine whether the statute has been followed
sufficiently so as to carry out the intent for which it was
adopted. Substantial compliance with a statute is not shown
unless it is made to appear that the purpose of the statute is
shown to have been served. What constitutes substantial
 12
compliance with a statute is a matter depending on the facts
of each particular case.

Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d 193, 195 (Iowa

1988) (quoting Smith v. State, 364 So. 2d 1, 9 (Ala. Crim. App. 1978)).

B. Whether Casey’s Is Entitled to Statutory Immunity. Before

we reach the numerous ways in which the employees claim Casey’s

violated section 730.5, we must first address Casey’s argument that

regardless of any violations, subsection 730.5(11) immunizes it from

liability. Subsection (11)(a) provides:

A cause of action shall not arise against an employer who has
established a policy and initiated a testing program in
accordance with the testing and policy safeguards provided
for under this section, for any of the following:

a. Testing or taking action based on the results
of a positive drug or alcohol test result, indicating the
presence of drugs or alcohol, in good faith, or on the
refusal of an employee or prospective employee to
submit to a drug or alcohol test.

Iowa Code § 730.5(11)(a). According to Casey’s, once an employer

establishes its drug testing policy pursuant to section 730.5 and initiates

its testing program in accord with the statutory testing safeguards, an

employee is barred from bringing a cause of action with respect to how a

particular test is carried out whenever, in good faith, the employer takes
action after an employee tests positive or refuses to submit to a test.

Casey’s distinguishes “initiates” from “administers,” arguing that once the

testing program is first put in place, Casey’s is not subject to liability even

if it fails to correctly administer or execute a particular test as long as its

actions are based on positive test results (or a refusal to submit to testing)

and are taken in good faith.

Subsection (11) must be read in conjunction with subsection (15),
see Simon Seeding & Sod, Inc. v. Dubuque Hum. Rts. Comm’n, 895 N.W.2d
 13

446, 461 (Iowa 2017) (noting “context is important” when construing a

statute); Sherwin–Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417,

425 (Iowa 2010) (“Ambiguity may arise . . . when the provision at issue is

considered in the context of the entire statute or related statutes.” (quoting

Midwest Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425 (Iowa

2002))), which expressly provides for enforcement of section 730.5

“through a civil action” and makes “[a] person who violates this

section . . . liable to an aggrieved employee.” Iowa Code § 730.5(15)(a)(1).

When that civil action “alleg[es] that an employer has required or requested
a drug or alcohol test in violation of this section,” i.e., section 730.5, “the

employer has the burden of proving that the requirements of this section

[730.5] were met.” Id. § 730.5(15)(b).

Casey’s interpretation of the immunity provision would defeat an

employee’s civil action for an employer’s failure to properly administer a

drug test any time they return a positive test result as long as the overall

program was properly initiated. It would also make significant portions of

the statute superfluous, including largely gutting paragraph (b) of

subsection (15). There would be no need for an employer to prove it met

the requirements of section 730.5; it would just need to show it acted in

good faith. Imagine a situation where, after an employer properly puts in

place a drug-testing program, an employee tests positive after being

selected for testing through a process that is clearly not random. Rather

than proving, see id. § 730.5(15)(b) (burden on employer to prove no

violation), it complied with the statutory requirements by engaging in a

proper random sampling process to ensure all employees had an equal

chance at being selected for testing, see id. § 730.5(1)(l), the employer
would need only show it acted in good faith by terminating the employee

based on the positive results.
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The inconsistencies between subsections (11) and (15) reveal the

ambiguity, so it falls on us to determine the immunity provision’s true

meaning. See Sherwin-Williams Co., 789 N.W.2d at 427 (“[W]here an

adherence to the strict letter would lead . . . to contradictory provisions,

the duty of ascertaining the true meaning devolves upon the court.”

(quoting Case v. Olson, 234 Iowa 869, 872, 14 N.W.2d 717, 719 (1944))).

The district court concluded an employer loses its immunity when

it violates any of the requirements of section 730.5. As noted by the court

of appeals, this reasoning is circular; an employer who complies with the
provisions of section 730.5 would not need immunity from a claim that it

violated section 730.5. To avoid this circuity, the court of appeals

concluded the immunity must be limited to protect an employer from

liability for statutory violations by third parties, such as the independent

testing entity or a medical review officer. While we agree that the immunity

provision could cover claims premised on third-party conduct, the

language of the statute reveals its protection is not so limited. See Iowa

Code § 730.5(11)(a).

We conclude the immunity provided by subsection (11) does not

apply to civil actions under subsection (15)(a) alleging the employer

violated section 730.5. Rather, subsection (11) immunizes employers from

causes of action other than those arising from the employer’s violations of

section 730.5, such as invasion of privacy or wrongful termination. This

reading is supported by Ferguson v. Exide Technologies, Inc., where we held

that the general assembly’s provision of a cause of action within the

comprehensive drug-testing scheme left no room for common law wrongful

discharge claims premised on violations of the same statute. See 936
N.W.2d at 434–35. This led us to conclude that “the civil cause of action
 15

provided by Iowa Code section 730.5 is the exclusive remedy for a violation

of section 730.5.” Id. at 436.

For Casey’s argument to make sense, the cause of action allowed in

subsection (15) would exclude claims by any employee who returns a

positive test result or refuses to submit to a test. Yet, by subjecting an

employer to liability for affirmative relief, including reinstatement or back

pay only as to “aggrieved employees,” subsection (15) is designed to provide

relief even when an employee is fired after returning a positive test result

or refusing to submit to a test. See, e.g., Sims, 759 N.W.2d at 340–41
(recognizing cause of action for the employer’s violation of the notice

provisions by awarding costs and attorney fees even though employee’s

positive test was confirmed); Tow v. Truck Country of Iowa, Inc., 695

N.W.2d 36, 39–40 (Iowa 2005) (affirming award of back pay for prospective

employee who refused to take a retest following an inconclusive test,

deemed a refusal to test, after the prospective employer violated section

730.5(6)(b)’s requirement that the employer pay for all testing).

Subsection 730.5(11) immunizes employers against causes of action

separate from violations of section 730.5 based on drug or alcohol tests

taken in good faith when the employer has “established a policy and

initiated a testing program in accordance with the testing and policy

safeguards provided for under this section.” Iowa Code § 730.5(11). Even

if an employer violates the requirements of section 730.5, it is protected

from separate claims based on conduct covered by section 730.5 because

the employee’s remedy is limited to the express civil action allowed by

subsection (15). It does not, however, immunize employers from the cause

of action expressly allowed under subsection 730.5(15). Casey’s is
therefore not entitled to immunity from the statutory claims involved here.
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C. Whether Casey’s Violated Section 730.5. The employees in

this case alleged several ways Casey’s violated section 730.5. The district

court found the employees proved three violations of section 730.5:

(1) Casey’s included non-safety-sensitive employees in the safety-sensitive

pool, (2) Casey’s failed to provide employees with an opportunity to present

information relevant to the test, and (3) Casey’s failed to provide a list of

the drugs to be tested at the appropriate time. The employees also raise

in their cross-appeals several problems with the selection process and the

administration of the drug test. Throughout our discussion, we are
mindful that “the employer has the burden of proving that the

requirements of this section were met.” Id. § 730.5(15)(b).

1. Safety-sensitive positions. The district court found that Casey’s

violated section 730.5 by placing Eller and McCann in the pool of safety-

sensitive employees. Iowa Code section 730.5(8) allows an employer to

conduct unannounced, suspicionless drug testing of employees selected

from a predefined pool, identifying three types of pools the employer may

use: the entire employee population at a particular work site, the entire

full-time employee population at a work site, or “[a]ll employees at a

particular work site who are in a pool of employees in a safety-sensitive

position.” Id. § 730.5(8)(a)(1)–(3).

Casey’s chose to limit its unannounced drug testing program to

employees in safety-sensitive positions under subsection (8)(a)(3). A

“safety-sensitive position” means:

a job wherein an accident could cause loss of human life,
serious bodily injury, or significant property or environmental
damage, including a job with duties that include immediate
supervision of a person in a job that meets the requirement of
this paragraph.
 17

Id. § 730.5(1)(j). Casey’s policy defined a safety-sensitive position in the

same way. Casey’s argues that regardless of this definition, whether an

employee is in a safety-sensitive position should be decided by the

employer based on its business judgment.

Using this standard, Casey’s challenges the district court’s

conclusion that McCann and Eller were not in safety-sensitive positions.

McCann’s and Eller’s light-duty work involved counting cigarette boxes

returned by convenience stores to the warehouse and matching the

number of returns to the invoices to ensure the accuracy of the returns.
Their work was completed within a fenced-in area referred to as “the cage.”

The cage was secured and locked to protect the cigarettes from being

stolen. Casey’s does not argue sorting cigarette returns qualifies as safety-

sensitive work. Rather, Casey’s argues the location of the cage, within the

greater warehouse environment where others operate heavy machinery

like forklifts and employees must pass through to get to the cage, make

McCann’s and Eller’s positions safety sensitive.

“Safety-sensitive” is a term of art that has a specialized purpose

within the context of workplace drug testing. Public employers, as well as

private employers following the mandate of government regulations, are

subject to the constraints of the Fourth Amendment and may not conduct

suspicionless drug testing of their employees absent a sufficient

government interest. See Skinner v. Ry. Lab. Exes.’ Ass’n, 489 U.S. 602,

615–16, 619, 109 S. Ct. 1402, 1412, 1414 (1989) (holding “the

Government’s encouragement, endorsement, and participation” in drug

testing of private railroad employees pursuant to Federal Railway Act

regulations implicated the Fourth Amendment and describing interest
sufficient to pass constitutional muster as “special needs, beyond the

normal need for law enforcement” (second quoting Griffin v. Wisconsin, 483
 18

U.S. 868, 873, 107 S. Ct. 3164, 3168 (1987))). One such compelling

interest allows a government employer to conduct random drug tests of

employees who hold “safety sensitive” positions. Id. at 629, 109 S. Ct. at

1419.

In the public-sector context, “the validity of the testing depends on

the degree to which the testing is essential to ensure public safety.”

1 Mark A. Rothstein et al., Employment Law § 1:35 (6th ed. 2019).

Random drug testing is allowed to address the public safety concern raised

when employees use drugs or alcohol at work. While a public employer
has an interest in preventing all employees from using alcohol or drugs at

work, it is only when an employee performs the type of job that such use

could harm others or cause substantial property damage that a public

employer is justified in conducting suspicionless drug tests. This type of

position is referred to as a “safety-sensitive position.” See Skinner, 489

U.S. at 621, 109 S. Ct. at 1415 (“This governmental interest in ensuring

the safety of the traveling public and of the employees themselves plainly

justifies prohibiting covered employees from using alcohol or drugs on

duty, or while subject to being called for duty.”). Allowing drug testing of

those in safety-sensitive positions strikes a balance between the privacy

interests of the employee and the safety interests of the employer.

The Department of Transportation (DOT) has developed extensive

regulations requiring random drug testing of employees in safety-sensitive

positions in specific industries subject to DOT authority. See 49 C.F.R.

§§ 40.1–.413. In determining which employees fall within the safety-

sensitive mandatory testing, job titles are not important. “[P]eople are

chosen for testing based on their job function (known as a safety-sensitive
function) not their occupational title.” Off. of Drug & Alcohol Pol’y &

Compliance, U.S. Dep’t of Transp., Best Practices for DOT Random Drug
 19

and Alcohol Testing 2, https://www.transportation.gov/odapc/best-

practices-dot-random-drug-and-alcohol-testing [https://perma.cc/5FRN-

JTT2]; see also 49 C.F.R. § 655.4 (defining “safety-sensitive function” for

purposes of mass public transportation to include operating, controlling

the dispatch or movement of, or maintaining a service vehicle or carrying

a firearm for security purposes). “Though an employer may use its own

terminology to describe job categories, it is the actual performance of any

of the functions listed under the definition of ‘safety-sensitive function’

which determines if an employee is safety-sensitive and therefore a FTA-
covered employee.” 1 David Evans, Drug Testing Law, Technology &

Practice § 4:93 Westlaw (database updated May 2021).

Courts that have considered whether a position was “safety

sensitive” for purposes of satisfying Fourth Amendment or statutory

protections likewise focus on the specific requirements of the job rather

than on the environment within which the employee works. Many courts

use the standard set in Skinner v. Railway Labor Executives’ Ass’n, where

the Supreme Court described railroad employees who operate locomotives

as “discharg[ing] duties fraught with such risks of injury to others that

even a momentary lapse of attention can have disastrous consequences.”

489 U.S. at 628–29, 109 S. Ct. at 1419–20; see also, e.g., Nat’l Treasury

Emps. Union v. Von Raab, 489 U.S. 656, 671, 677, 109 S. Ct. 1384, 1393,

1397 (1989) (allowing random testing for U.S. Customs’ employees

required to carry a firearm because they “plainly” meet the Skinner

standard). Courts focus on the employee’s specific job functions in

determining the risk of harm posed by an employee using drugs or alcohol

on the job. See Bryant v. City of Monroe, 593 F. App’x 291, 297 (5th Cir.
2014) (concluding “driving City vehicles and transporting co-workers,

operating heavy groundskeeping equipment, handling pesticides, and
 20

working in high-risk areas such as highway medians” were safety-sensitive

tasks as a matter of law); Int’l Brotherhood of Elec. Workers, Loc. 1245 v.

U.S. Nuclear Regul. Comm’n, 966 F.2d 521, 526 (9th Cir. 1992) (“In the

case of the warehouse employees [in a nuclear plant], from the record

before us, it appears many are engaged in work that is sufficiently safety

sensitive to warrant upholding the NRC’s denial of an exemption. These

employees apparently actually handle safety-sensitive material and often

enter the vital areas of the plant to make deliveries.”); Nat’l Fed’n of Fed.

Emps. v. Cheney, 884 F.2d 603, 610, 614 (D.C. Cir. 1989) (holding it was
“readily apparent that the Army has a compelling safety interest in

ensuring that the approximately 2,800 civilians who fly and service its

airplanes and helicopters are not impaired by drugs” but testing of civilian

laboratory workers conducting the drug testing program where “a drug-

related lapse by such an employee does not portend either direct or

irreparable harm, as would, for example, a lapse by an air traffic controller,

pilot, or guard”); Krieg v. Seybold, 427 F. Supp. 2d 842, 857 (N.D. Ind.

2006) (holding “operating large vehicles and heavy equipment in areas

open to the general public and co-workers” placed city sanitation workers

in safety-sensitive positions); see also Chandler v. Miller, 520 U.S. 305,

321–22, 117 S. Ct. 1295, 1305 (1997) (invalidating Georgia law

authorizing random drug tests of elected officials in part because “those

officials typically do not perform high-risk, safety-sensitive tasks”

(emphasis added)).

While nongovernment mandated drug testing by private employers

is not subject to Fourth Amendment constraints, we do not ignore, nor do

we believe the general assembly ignored, the specialized meaning “safety
sensitive” has developed in the context of workplace drug testing in

considering its meaning under Iowa law. See Air Wis. Airlines Corp. v.
 21

Hoeper, 571 U.S. 237, 248, 134 S. Ct. 852, 861–62 (2014) (“[I]t is a

cardinal rule of statutory construction that, when Congress employs a

term of art, it presumably knows and adopts the cluster of ideas that were

attached to each borrowed word in the body of learning from which it is

taken.” (alteration in original) (quoting FAA v. Cooper, 566 U.S. 284, 292,

132 S. Ct. 1441, 1449 (2012))). Many private employers, like Casey’s, have

some employees who are covered by DOT requirements and others who

are not, which makes consistent application of terminology with federal

regulations all the more relevant.2
The only purpose “safety sensitive” serves in section 730.5 is to

provide an option for employers in selecting the pool of employees subject

to unannounced drug testing. An employer may use three different types

of pools: all employees at a work site, all full-time employees at a work site,

or all employees in a safety-sensitive position at a work site—a smaller

pool of employees who pose a particular kind of risk. See Iowa Code

§ 730.5(8)(a). These options offer flexibility to employers like Casey’s,

which have worksites where some employees work in dangerous jobs but

other employees do not. Rather than subjecting all employees (or all

fulltime employees) at a work site to testing, employers may limit their

unannounced, random drug testing to employees in positions the

employer is most concerned about causing serious injuries or significant

property damage if found to be using drugs or alcohol on the job while

exempting others, such as office employees, who do not pose the same

risks. Within this statutory scheme, the definition of “safety sensitive” is

comparable to the meaning used by the Supreme Court in the context of

2Casey’s drug policy at issue in this case has separate provisions for random drug
testing of its CDL Drivers, required to be tested in compliance with DOT regulations, and
“Non-DOT” drug and alcohol testing, at issue here.
 22

public employers. Compare id. § 730.5(1)(j) (“[A] job wherein an accident

could cause loss of human life, serious bodily injury, or significant

property or environmental damage, including a job with duties that

include immediate supervision of a person in a job that meets the

requirement of this paragraph.”), with Skinner, 489 U.S. at 628, 109 S. Ct.

at 1419 (“Employees [in safety-sensitive positions] discharge duties

fraught with such risks of injury to others that even a momentary lapse of

attention can have disastrous consequences.”). As one court has

observed,
For an employee to occupy a truly safety sensitive position, it
is not enough to show that the employee has some interest or
role in safety. Rather, the [employer] must demonstrate that
the employee’s position is one that in the ordinary course of
its job performance carries a concrete risk of massive property
damage, personal injury or death.

Am. Fed’n of Tchrs.-W. Va., AFL–CIO v. Kanawha Cnty. Bd. of Educ., 592

F. Supp. 2d 883, 902 (S.D.W. Va. 2009). These cases make clear that

“safety sensitive” serves a specialized purpose in the context of workplace

drug testing. It identifies employees who, if performing their job functions

while under the influence of drugs or alcohol, could pose such a risk of

harm to people or damage to property that subjecting them to
suspicionless drug testing is justified by the government’s interest in

protecting public safety.

Casey’s could easily have chosen to apply its unannounced random

drug testing program to all employees in the Distribution Center

warehouse work site, but it chose to limit its program to those in safety-

sensitive positions. While the employer designates which employees are

in safety-sensitive positions, see Iowa Code § 730.5(9)(f), the employer may
only designate employees that meet the statutory definition: “a job wherein

an accident could cause loss of human life, serious bodily injury, or
 23

significant property or environmental damage,” id. § 730.5(1)(j). This

definition sets the level of dangerousness, i.e., only an accident that could

cause serious bodily injury or death or significant property or

environmental damage. It does not eliminate the context in which the

definition is applied: identifying jobs that create safety concerns if the

employee was using drugs or alcohol while performing the job. If the

employer had carte blanche to identify which positions it chose to

designate as “safety sensitive,” the employer could easily engage in the very

targeting the complex statute was intended to avoid, see id. § 730.5(14)(a),
by placing only certain employees in the pool. Consistent with the

understanding of “safety sensitive” in the context of workplace drug tests,

employers must base their designations on the functions of the job an

intoxicated person could be performing that would lead to the type of

serious accident identified, not just the environment in which the job is

performed.

Casey’s designated Eller and McCann as performing safety-sensitive

positions because their jobs were located in the warehouse (within the

confines of the chain-link cage), which it considers a dangerous

environment based on the use of heavy equipment outside of the cage.

While we do not disagree that employers likely know best which of their

positions are safety sensitive, Casey’s improperly focused on the

environment in which a job is performed rather than the job functions in

making that determination. Casey’s does not dispute that the specific

functions of Eller’s and McCann’s light-duty jobs sorting cigarettes were

unlikely to lead to accidents causing serious bodily injury or significant

property damage if performed while under the influence of drugs or
alcohol.
 24

Eller and McCann were misclassified by Casey’s as safety-sensitive

employees as defined in section 730.5(1)(j), and the district court properly

concluded they should not have been included in the pool subjected to

drug testing. Eller and McCann were aggrieved by losing their jobs

because they should never have been tested. See id. § 730.5(15)(a)(1).

2. Selection process. The employees challenge two aspects of the

selection process Casey’s used to determine which employees would be

tested. First, all employees not selected as part of the 90% random

selection were placed on an alternate list. Second, the list used to make
the random selection included a number of employees not scheduled to be

at work, which resulted in Casey’s testing all individuals from the alternate

list who showed up for work. These interrelated challenges address two

different statutory requirements: (1) identification of the pool from which

employees were selected for testing, see id. § 730.5(8)(a)(3), and (2) use of

a “random selection process,” see id. § 730.5(1)(l).

We start with Casey’s process for selecting which employees to test.

Subsection (8)(a)(3) defines the testing pool as “[a]ll employees . . . who are

scheduled to be at work at the time testing is conducted.” Id.

§ 730.5(8)(a)(3). The employees allege Casey’s improperly (1) included

twenty-seven employees not scheduled to be at work, (2) excluded two

warehouse employees from the testing pool who should have been

included, and (3) excluded two management-level employees who

frequented the warehouse. The selection requirements are aimed at

preventing employers from targeting or exempting specific employees for

drug tests. See id. § 730.5(14)(a) (imposing a civil penalty of $1000 for

improperly targeting or exempting employees from drug tests). With this
purpose in mind, we consider Casey’s selection process.
 25

The district court found that Casey’s provided a list of 184

employees scheduled to work on April 6 between 10:00 a.m. and 2:00 p.m.

to ARCpoint and requested it randomly select 90% of the names to be

tested. ARCpoint returned a list of 167 names selected at random, and it

placed the remaining 17 names on a list of alternates to be used if

employees on the initial list were not at work. Ultimately, 145 employees

were tested. The original list of 184 names included 21 employees who

had either switched shifts with others or were otherwise approved for leave

between the time the list was generated and it was sent to ARCpoint on
April 5 for its selection process. Another six employees on the list were

scheduled to work but either called in sick, went home sick before the test

was announced, or were “no shows” on April 6. The list was also missing

employees. Two employees were inadvertently left off the list though

scheduled to work, and two management-level employees, as well as an

unidentified number of human resource employees, were excluded from

the list based on Casey’s view they were not part of the Distribution Center

work site.

The district court found that while the selection process was not

perfect, it substantially complied with the selection criteria in

subsection (8)(a)(3). The court found that Casey’s made reasonable efforts

to identify employees scheduled to work on April 6 but that the list had to

be modified due to ordinary changes in work schedules, changes

contemplated by the statute. See id. § 730.5(8)(a)(3) (excluding from the

pool employees not scheduled to work at the time of the testing and

employees excused from work under the company’s normal policies prior

to the time the testing was announced to employees).
With respect to providing an accurate list of employees scheduled to

work on the day of testing, we agree with the district court that substantial
 26

compliance allows some give in compiling the list for the selection process,

particularly for employees who missed work the day of testing for illness

or as no shows. To hold Casey’s violated the pooling requirement by

including those six individuals on the list would make it nearly impossible

for any employer to comply with pooling requirements from a practical

standpoint. The same is true for the two employees inadvertently excluded

from the list. An employer is allowed some room for human error.

The employees’ challenge to Casey’s exclusion of Jay Blair (Vice

President of Transportation and Distribution), Ed Vaske (Director of
Grocery Distribution), and unidentified human resource personnel also

fails as none of them were considered employees of the “particular work

site” that comprised the pool of employees to be tested, id. § 730.5(8)(a)(3),

identified as the Distribution Center warehouse. Even though Mr. Blair

and the human resource employees regularly walked through the

warehouse, their offices were in the corporate headquarters, which was

treated as a separate work site for purposes of Casey’s drug-testing policy.

Plaintiffs do not challenge what constitutes a “work site” or what

determines whether an employee whose job takes them to more than one

work site is an employee of a particular work site.

Although Mr. Vaske was the immediate supervisor of Bill Brauer,

the Distribution Center warehouse manager, section 730.5(1)(j) only

includes the immediate supervisor of persons whose jobs meet the

definition of a “safety sensitive position.” Mr. Brauer was included in the

pool because his office was located in the warehouse. Based on our

clarification of what it means to hold a safety-sensitive position, he likely

would not have met that definition, but he was nonetheless properly
included as the immediate supervisor of the warehouse employees, i.e.,

the employees whose positions were in fact safety sensitive. See id.
 27

§ 730.5(1)(j) (“ ‘Safety-sensitive position’ means a job wherein an accident

could cause loss of human life, serious bodily injury, or significant

property or environmental damage, including a job with duties that

include immediate supervision of a person in a job that meets the

requirement of this paragraph.”). The “immediate supervision” language

in section 730.5(1)(j) limits the requirement to move up the supervision

ladder only one rung, and Mr. Vaske was properly excluded from the pool

on that basis. Casey’s substantially complied with section 730.5(8)(a)(3)

when it excluded these challenged employees from the pool.
With respect to the twenty-one employees who were previously, but

no longer, scheduled to work at the time of testing, the issue is a matter

of timing. At the time these employees were placed on the original list,

they were “scheduled to be at work at the time testing is conducted.” Id.

§ 730.5(8)(a)(3). Casey’s Director of Human Resources testified she

obtained the schedules from warehouse supervisors who were themselves

included in the pool of employees to be tested, so she had to be discreet

because she could not disclose the purpose for her request. See id.

§ 730.5(1)(l) (defining unannounced drug test as one conducted without

advanced notice to employees subject to testing). In the time between

gathering the schedules to compile the list and providing that list to

ARCpoint to conduct the random selection of employees to test, twenty-

one employees either switched shifts with other employees or were

approved for leave. The statutory requirement to use an “entity

independent from the employer” to make the selection, id. § 730.5(1)(l),

means there will necessarily be some amount of time between compiling

the list of employees scheduled to be at work and actually selecting the
employees to test. Given Casey’s explanation, and the relatively short time
 28

period3 between compiling the list and providing it to ARCpoint to make

the selection, we agree with the district court that Casey’s substantially

complied with identifying employees scheduled to be at work to include on

the selection list even though the list was not completely accurate.

Requiring the employer to start the compiling process over each time an

employee made a shift change up to the time of testing would make the

process nearly impossible to complete.

We turn now to the employees’ challenge to Casey’s use of an

alternate list, which resulted in Casey’s testing essentially all employees
from the original list who showed up for work, as violating the requirement

to use a “random selection process.” An unannounced drug test is defined

as one:

conducted on a periodic basis, without advance notice of the
test to employees, . . . and without individualized suspicion.
The selection of employees to be tested from the pool of
employees subject to testing shall be done based on a neutral
and objective selection process by an entity independent from
the employer and shall be made by a computer-based random
number generator . . . in which each member of the employee
population subject to testing has an equal chance of selection
for initial testing, regardless of whether the employee has been
selected or tested previously. The random selection process
shall be conducted through a computer program that records
each selection attempt by date, time, and employee number.

Id. § 730.5(1)(l). The employees argue use of an alternate list violated the

requirement that the selection of employees to be tested “be done based

3On our de novo review of the record, it appears Casey’s compiled the original list
on March 31, three business days prior to providing the list to ARCpoint on April 5, and
four before the actual testing. We do not decide how long of a time period between
compiling the list and conducting the selection would result in an employer not being in
substantial compliance with the requirement to limit the pool of employees to those
scheduled to be at work at the time of testing. Obviously, the greater the time period,
particularly with no justification, the less likely an employer could be said to be in
substantial compliance. Likewise, evidence that an employer compiled its list knowing
that work schedules would change significantly before the time of testing could impact
the substantial compliance analysis. No such evidence was presented here.
 29

on a neutral and objective selection process . . . in which each member of

the employee population subject to testing has an equal chance of

selection.” Id.

We do not decide whether Casey’s use of alternates violated the

statutory requirement to utilize a random selection process4 because Dix

and Cattell were not on the alternate list. Section 730.5(15)(a) only makes

the employer “liable to an aggrieved employee.” Id. § 730.5(15)(a)(1)

(emphasis added). Thus, not every violation results in liability.

Determining whether an employee is aggrieved necessarily depends on the
nature of the violation. See Sims, 759 N.W.2d at 340–41 (holding employee

was not aggrieved by loss of employment from delayed notice of rights to

confirmatory testing where testing ultimately confirmed positive results

but was entitled to recover attorney fees and costs where lawsuit was

required to compel employer’s compliance with notice requirements).

Here, the plaintiffs were on the original list, so they would have been tested

regardless of Casey’s use of an alternate list. They were therefore not

aggrieved by Casey’s use of alternates.

3. Opportunity to provide information related to the drugs to be

tested. The district court concluded Casey’s failed to substantially comply

with section 730.5 with respect to “the opportunity for employees to

provide relevant information and the requirement that a list of the drugs

to be tested for be provided to the employees being tested.” Both of those

findings relate to section 730.5(7)(c)(2), which provides:

4We reject the employees’ related argument that the web-based program,

www.randomizer.org, ARCpoint Labs used to select employees was not “a computer-
based random number generator,” Iowa Code § 730.5(1)(l), because it is described as a
“pseudo random number generator” rather than a pure random number generator. The
employees fail to explain how the pseudo random generator differs functionally from a
true random number generator or created a likelihood that certain employees had a
higher chance of selection or exclusion than others. A pseudo-random number generator
is, for the purposes of the statute, random.
 30
An employee or prospective employee shall be provided an
opportunity to provide any information which may be
considered relevant to the test, including identification of
prescription or nonprescription drugs currently or recently
used, or other relevant medical information. To assist an
employee or prospective employee in providing the
information described in this subparagraph, the employer
shall provide an employee or prospective employee with a list
of the drugs to be tested.

Iowa Code § 730.5(7)(c)(2). Casey’s forbade the employees from disclosing

any personal medical information at the time of the testing. However, each

employee who tested positive, including the plaintiffs, was given the

opportunity to provide information to the medical review officer (MRO) who
confirmed their results.

The first half of Iowa Code section 730.5(7)(c)(2) uses passive

language—“[a]n employee or prospective employee shall be provided an

opportunity”—while the second half is directed at the employer—“the

employer shall provide.” (Emphases added.) This language indicates it is

not necessarily the employer to whom the employee must be given the

opportunity to provide information. Likewise, the statute does not include

a timing requirement for making that opportunity available, and it is

reasonable that making that opportunity available when, and if, the MRO

contacts the employee about a positive result satisfies the requirement.

Allowing the employee to provide the information to the MRO comports

with the rest of section 730.5. The MRO needs the information to perform

his duties of interpreting a positive result prior to providing the result to

the employer. See id. §§ 730.5(1)(g) (requiring MRO to have “appropriate

medical training to interpret and evaluate an individual’s confirmed

positive test result together with the individual’s medical history and any

other relevant biomedical information”), (7)(h) (“A medical review officer
shall, prior to the results being reported to an employer, review and

interpret any confirmed positive test results . . . to ensure . . . that any
 31

information provided by the individual pursuant to paragraph ‘c’,

subparagraph (2), is considered.”). That happened here. Allowing

employees to provide relevant medical information to the MRO satisfies the

statutory requirement.

With respect to the required list of drugs to be tested, it is

undisputed that Casey’s did not provide the employees with a list of

specific drugs on April 6. Instead, it relied on the definition of a “Drug”

contained in the original notice of the drug testing policy provided to

employees two-and-a-half months earlier on January 26:

Any drug or substance defined as a controlled substance that
is included in schedule I, II, III, IV, or V under the Federal
Controlled Substances Act. Said substances include, but are
not necessarily limited to cocaine, phencyclidine (PCP),
opiates, amphetamines, marijuana, MDMA (ecstasy), and 6-
acetylmorphines (6-AM).

The statute requires that “[t]o assist an employee or prospective

employee in providing the information described in this subparagraph, the

employer shall provide an employee or prospective employee with a list of

the drugs to be tested.” Id. § 730.5(7)(c)(2). By using the phrase “to be

tested,” the plain language of the statute makes clear the employer is

required to provide information about the specific drugs to be tested with

each test.

Providing a list of specific drugs to be tested assists the employees

in identifying medical information that “may be considered relevant to the

test, including identification of prescription or nonprescription drugs

currently or recently used, or other relevant medical information.” Id. The

list provided to the employees with the original policy specifically identified

amphetamines and marijuana, the only drugs any of the plaintiffs tested
positive for, and allowed the plaintiffs to provide any relevant information
 32

that would help explain any false positive results. We cannot say this was

a failure to substantially comply with the statute.

With respect to the timing for providing the list, we likewise cannot

say that Casey’s reliance on the initial list of drugs disseminated with the

original drug-testing policy failed to substantially comply with the statute,

at least under the particular facts of this case. The statute does not specify

when the list must be provided, but its purpose indicates it must be

provided sufficiently contemporaneous to allow the selected employees to

provide information about their medical history that would be relevant to
the drugs to be tested. This was the first testing Casey’s conducted after

initiating its new unannounced drug-testing policy, and a copy of the

policy—and its list of drugs—had been provided to all employees just a

couple of months before the testing. Under these facts, Casey’s

substantially complied with the requirement to provide a list of drugs that

allowed employees to provide personal information relevant to the drugs

involved in the April 6 testing. See Sims, 759 N.W.2d at 338 (holding notice

satisfied employer’s obligations where it “nonetheless accomplish[ed] the

important objective of providing notice to the employee of the positive test

result and a meaningful opportunity to consider whether to undertake a

confirmatory test”).

We caution, however, that employers would be well advised to

provide a list with each testing to allow employees to make informed

decisions about what medical information they need to provide to help

interpret any potentially positive results.

4. Additional objections. The employees also raise a number of

miscellaneous challenges, including objections that the sample collection
did not occur in a “collection facility” or meet the privacy requirements of
 33

section 730.5(7), that Casey’s employees were not properly trained, and

that Casey’s failed to test on a periodic basis.

While section 730.5 does not define a “collection facility,” Casey’s

did so in its own policy where it declared testing would occur in a

“Collection Facility,” defined as “[a] certified collection site such as an

occupational health center, a hospital or otherwise identified clinic or

facility to which a prospective or current employee may be sent for a drug

or alcohol test.” It is undisputed the collection of samples here occurred

in the men’s and women’s locker rooms at Casey’s warehouse rather than
a “collection facility” as defined in Casey’s policy.

The district court acknowledged that the collection of samples in the

locker rooms violated Casey’s policy but noted “this only establishes a

violation of the policy, not the statute.” While true, a violation of the terms

of an employer’s policy is itself a violation of section 730.5. Iowa Code

§ 730.5(9)(a)(1) (“Drug or alcohol testing or retesting by an employer shall

be carried out within the terms of a written policy which has been provided

to every employee subject to testing, and is available for review by

employees and prospective employees.” (emphasis added)). Regardless of

whether Casey’s failure to comply with its own policy here amounts to a

lack of substantial compliance, the employees have not pointed to any way

this potential failure harmed, or aggrieved, them. We reject the employees’

attempt to garner equitable relief for each purported violation of the testing

requirements without also identifying how the violation caused them

harm. General claims of harm to their privacy interests do not suffice.

The employees also argue the samples were not collected with

adequate privacy. See id. § 730.5(7)(a) (requiring collection of samples to
be “under sanitary conditions and with regard for the privacy of the

individual” and requiring collection procedures for urine samples to
 34

“provide for . . . a location at the collection site where . . . urination can

occur in private,” which has been visually inspected “to ensure that other

persons are not present,” which prevents “undetected access to the

location” during urination, and “which provides for the ability to effectively

restrict access . . . during the time the sample is provided”). Samples were

provided in typical bathroom stalls. Although bathroom stalls may not

meet the utmost privacy standards, they meet the essential objective of

providing privacy to employees. The use of an employer’s bathrooms fitted

with individual stalls does not amount to a failure to substantially comply
with the statute.

Additionally, we reject the employees’ claim that all employees

involved in the drug testing must meet the training requirements in

section 730.5(9)(h), requiring “supervisory personnel of the employer

involved with drug or alcohol testing” to attend at least two hours of initial

training and one hour annually thereafter. Id. § 730.5(9)(h). It is

undisputed that the supervisor in charge of the drug test and another HR

employee completed this training.

We reject the employee’s cramped reading of the statute that would

require every employee who played a role in conducting the testing to

receive the training. The remainder of subsection (9)(h) reveals the training

is intended to assist in recognizing patterns of drug or alcohol abuse:

The training shall include, but is not limited to, information
concerning the recognition of evidence of employee alcohol
and other drug abuse, the documentation and corroboration
of employee alcohol and other drug abuse, and the referral of
employees who abuse alcohol or other drugs to the employee
assistance program or to the resource file maintained by the
employer pursuant to paragraph “c”, subparagraph (2).

Id. Failure to train employees who would have no involvement in trying to
recognize patterns of drug or alcohol abuse has no effect on the objective
 35

of this portion of the statute. Casey’s did not fail to substantially comply

with the statute by failing to require adequate training of the other

employees assisting with the testing.

Finally, the employees argue Casey’s failed to prove that it conducts

testing on a periodic basis. See id. § 730.5(1)(l) (defining “[u]nannounced

drug or alcohol testing” as “testing for the purposes of detecting drugs or

alcohol which is conducted on a periodic basis” (emphasis added)). The

test at issue here was Casey’s first unannounced drug test. A failure to

test periodically cannot be proven on the very first test.
5. Summary of violations. In sum, we conclude Casey’s failed to

substantially comply with section 730.5 by including Eller and McCann in

the pool of safety-sensitive employees. With respect to the other

challenges, Casey’s actions in carrying out the drug-testing program either

substantially complied with the statutory requirements or did not harm

the plaintiffs.

The district court granted relief to Eller and McCann because they

should not have been tested under Casey’s testing program. Casey’s

appeals the amount of their respective awards, which we take up next.

D. McCann’s and Eller’s Monetary Awards. The district court

awarded McCann back pay but not front pay based on the success of the

truck food business he started after leaving Casey’s. Casey’s challenges

his back pay award based on a lack of mitigation because he turned down

an earlier job offer. McCann challenges the district court’s conclusion that

a front pay award was too speculative to support an award.

The district court awarded Eller both back pay and front pay based

on evidence she was involved in an ongoing worker’s compensation action
related to an injury she received while working at Casey’s that made it
 36

difficult for her to find comparable work. Casey’s challenges this award

based on a failure to mitigate.

Section 730.5(15) allows the district court to award equitable relief,

which we review for an abuse of discretion. Id. § 730.5(15)(a)(1) (providing

for “affirmative relief including reinstatement or hiring, with or without

back pay, or any other equitable relief as the court deems appropriate”);

see also Vaughan v. Must, Inc., 542 N.W.2d 533, 540 (Iowa 1996) (standard

of review). “Under Iowa law, the burden of proof in asserting that a party

has failed to mitigate damages is on the party asserting that claim.” Tow,
695 N.W.2d at 40 (addressing mitigation in a section 730.5(15) claim).

Mitigation is “an issue of fact for the district court to resolve.” Id. In the

context of employment discrimination cases,

an employer can meet its burden of establishing the plaintiff
failed to mitigate damages by showing (1) the availability of
suitable jobs that the employee could have discovered and for
which the employee was qualified, and (2) that the employee
failed to seek such a position with reasonable care and
diligence.

Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 523 (Iowa 2012). A person

is not obligated to accept employment that is not comparable to their

previous employment, but recovery may be reduced if the person failed to

mitigate their damages. See id. Mitigation thus turns on the

reasonableness of the employee’s efforts.

The district court granted McCann back pay, concluding his “efforts

post-termination cannot be described as unreasonable,” but denied front

pay because “such an award in McCann’s case on the present record

would be unduly speculative and provide nothing short of an unjustified

windfall to him” since he was still able-bodied and there was no showing
he was unable to work. McCann withdrew his application for a job that

may have been comparable to working for Casey’s because of the distance
 37

from home, the time commitment of the startup company, his daughter,

and, potentially, concern over passing a drug-screening test. Instead,

McCann started a food truck business, which took some time to become

profitable. These are valid considerations in determining mitigation. See

id. (holding distance between former job and potential job is a proper

consideration in mitigation); see also Brown v. Smith, 827 F.3d 609, 616

(7th Cir. 2016) (“[S]elf-employment, if reasonable, counts as permissible

mitigation.” (quoting Smith v. Great Am. Rests., Inc., 969 F.2d 430, 438

(7th Cir. 1992))); Serricchio v. Wachovia Sec., LLC, 606 F. Supp. 2d 256,
262–63 (D. Conn. 2009) (“[U]nder appropriate circumstances self-

employment may be a proper way to mitigate earnings losses.”), aff’d, 658

F.3d 169 (2d Cir. 2011). We agree with the district court that McCann’s

effort to start his food truck business was an earnest one. In contrast to

Hansard v. Pepsi-Cola Metropolitan Bottling Co., where the United States

Court of Appeals for the Fifth Circuit concluded the employee’s “flea

market business was never more than a part-time enterprise,” 865 F.2d

1461, 1468 (5th Cir. 1989), McCann treated the food truck business as

his primary business, and Casey’s failed to offer evidence indicating

McCann did not dedicate appropriate efforts to starting this business, id.

(“Further, Hansard did not approach the flea market as a business, rather

he primarily gathered odds and ends from his home and sold them.”). The

district court properly awarded McCann back pay.

McCann separately appeals the district court’s denial of front pay.

Judgment was entered on August 21, 2018, over two years after McCann

was terminated. McCann started earning revenue from his food truck

business in June 2017, which was expected to go into full-time production
by summer 2018. The business showed a net loss for 2017, its start-up

year, which, in resisting Casey’s failure-to-mitigate defense, McCann
 38

argued was expected given that “expenses are highest and presence in the

market is lowest” early in the business’s life. The district court considered

the 2017 loss in awarding McCann back pay.

“The plaintiff bears the initial burden of providing the district court

‘with the essential data necessary to calculate a reasonably certain front

pay award’ . . . .” Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995)

(quoting McKnight v. Gen. Motors Corp., 973 F.2d 1366, 1372 (7th Cir.

1992)). McCann calculated his annual pay from Casey’s and asked for five

years’ worth of front pay for a total of $289,807, stating “there was no
evidence that Plaintiff McCann’s business will perform better financially

than it has in the past, so nothing has been deducted for mitigation.” The

district court denied the request for front pay as “unduly speculative” and

an “unjustified windfall.” McCann’s assertion that his business would

remain unprofitable for an additional five years is inconsistent with his

own testimony that he was going into full-time production and his first six

months’ of business, the only period of financial information provided, was

unprofitable because his expenses were high and his presence in the

market low at the start of his business. The district court did not abuse

its discretion in concluding McCann’s request for front pay was too

speculative to justify an award.

The district court concluded Eller was entitled to both back pay and

front pay but limited the front pay award to two years rather than five

years, as Eller requested. Casey’s challenges Eller’s monetary awards

because she failed to apply for any other jobs. According to Casey’s, Eller’s

explanation that she could not perform other jobs precluded her from

receiving any monetary awards from Casey’s.
At the time of Eller’s termination, she had been working for over two

years in the light-duty position Casey’s provided following her workplace
 39

injuries. Eller provided evidence that the injuries left her physically unable

to perform the vast majority of jobs she otherwise would have been

qualified to perform but that she would have been able to continue the

relatively nonlabor intensive work of sorting cigarette returns. This,

combined with her age and education level, made her job prospects dim.

Casey’s failed to offer any contrary evidence. In these circumstances,

Eller’s failure to look for other work does not preclude her back pay and

front pay awards. See Tow, 695 N.W.2d at 40 (holding employer has

burden to prove failure to mitigate); Hunter v. Bd. of Trs. of Broadlawns
Med. Ctr., 481 N.W.2d 510, 517 (Iowa 1992) (concluding testimony from

aggrieved employee “that his future employment prospects were especially

dismal for [identified] reasons” required the employer to show lack of

mitigation); see also Channon v. United Parcel Serv., Inc., 629 N.W.2d 835,

848 (Iowa 2001) (“Front pay is a ‘form of relief that assumes the plaintiff

would have continued in [his or her] position absent unlawful actions by

the defendant.’ ” (alteration in original) (quoting Eileen Kuklis, Comment,

The Future of Front Pay Under the Civil Rights Act of 1991: Will it be Subject

to the Damage Caps?, 60 Alb. L. Rev. 465, 469 (1996))). The district court

did not abuse its discretion in awarding Eller both back pay and front pay

under section 730.5(15).

IV. Conclusion.

For the foregoing reasons, we vacate the decision of the court of

appeals and affirm the district court’s judgment.

DECISION OF COURT OF APPEALS DECISION; DISTRICT

COURT JUDGMENT AFFIRMED.

Appel, Waterman, and Mansfield, JJ., join this opinion. McDermott,
J., files an opinion concurring in part and dissenting in part, in which

Christensen, C.J., and McDonald, J., join.
 40
#18–1464, Dix v. Casey’s Gen. Stores, Inc.
McDERMOTT, Justice (concurring in part and dissenting in part).

The majority, in declaring that Casey’s improperly designated

distribution warehouse employees Eller and McCann as having safety-

sensitive positions, ventures into the role of HR director for Casey’s

General Stores, Inc. The majority’s holding tells Casey’s that it has little

conception of which of its own warehouse positions come with safety risks.

Never mind that these jobs were developed and filled by Casey’s, in a

warehouse outfitted and operated by Casey’s, and thus with safety

designations rooted in the familiarity and experience of Casey’s. And,

adding insult to injury, the majority finds Casey’s in the wrong not because

Casey’s was too lax in failing to designate its employees having safety-

sensitive roles, but too zealous. Employers in Iowa might be surprised to

find that they’re setting themselves up for liability by being overly vigorous

in designating warehouse positions as safety sensitive in their efforts to

ensure a drug-free workplace.

We start with the statute, which defines “safety-sensitive position”

as

a job wherein an accident could cause loss of human life,
serious bodily injury, or significant property or environmental
damage, including a job with duties that include immediate
supervision of a person in a job that meets the requirement of
this paragraph.

Iowa Code § 730.5(1)(j) (2016). The definition does not require that the

particular job’s tasks cause the harm. Instead, it refers to a job in which

an accident could cause the harm. The majority’s focus on the tasks

involved in a particular job as the determining factor as to safety

sensitivity, instead of evaluating more broadly whether the job is one in
which an accident could cause injury or damage, narrows the focus in a

manner inconsistent with the statute’s language.
 41

Against the plain language of the statute, the majority interprets

“safety sensitive” as a legal “term of art” and thus seeks to define the term

through its application in federal court cases primarily involving public

employers and private employers required by the government to conduct

drug testing. Those cases have no application here. Public employers and

private employers required to conduct drug testing are constrained in

conducting suspicionless drug testing under the United States

Constitution’s Fourth Amendment search and seizure standards. As the

majority acknowledges, the validity of a suspicionless drug test under the
Fourth Amendment generally depends on the degree to which the testing

of the employee is essential to ensure public safety. In that constitutional

context, it makes sense that the case law would focus on the employee’s

job-related tasks to determine how testing the particular employee affects

public safety. But Casey’s is a private employer not required to conduct

drug testing of these employees, and Casey’s ability to conduct drug

testing is not limited to advancing only those interests sufficient to satisfy

the Fourth Amendment. See Skinner v. Ry. Lab. Exec.’s Ass’n, 489 U.S.

602, 614, 109 S. Ct. 1402, 1411 (1989) (“[T]he Fourth Amendment does

not apply to a search or seizure, even an arbitrary one, effected by a private

party on his own initiative.”). Section 730.5 recognizes this distinction and

allows the private employer greater authority to designate safety-sensitive

positions based on whether the position is one in which an accident could

cause serious injury or property damage rather than whether the

employee’s particular job tasks implicate public safety. See Iowa Code

§§ 730.5(1)(j), .5(9)(f).

Further, “[w]hen the legislature has defined words in a statute—that
is, when the legislature has opted to ‘act as its own lexicographer’—those

definitions bind us.” State v. Coleman, 907 N.W.2d 124, 135 (Iowa 2018).
 42

In any interpretation of a statute, the words of the text are of paramount

importance. Bribriesco-Ledger v. Klipsch, 957 N.W.2d 646, 650 (Iowa

2021) (citing Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 33 (2012)). Had the Legislature left the term

undefined, the majority’s interpretation would find firmer footing. But the

words of the statute—and particularly the omission of any reference to job

tasks and the inclusion instead of jobs “wherein an accident could cause”

serious injury or property loss—do not abide the majority’s interpretation.

Iowa Code § 730.5(1)(l).
In looking beyond the statute for its conclusion, the majority also

misses another important feature of the statute: that designations of

safety-sensitive positions generally belong to the employer. Section

730.5(9)(f) states that “[a]n employee of an employer who is designated by

the employer as being in a safety-sensitive position shall be placed in only

one pool of safety-sensitive employees.” (Emphasis added.) If the

determination of whether an employee has a safety-sensitive job is not to

be made by the employer, the legislature could just as easily have deleted

that portion of the sentence and stated “an employee shall be placed in

only one pool of safety-sensitive employees.” We interpret every word and

every provision of a statute to give it effect, if possible. Bribriesco-Ledger,

957 N.W.2d at 650–51. Deference to an employer’s designations of safety-

sensitive positions isn’t unlimited, but courts should avoid usurping an

employer’s designation decision unless the designation is so irrational that

it demonstrates an intent to circumvent the statutory testing protocols.

See, e.g., Usery v. Godfrey Brake & Supply Serv., Inc., 545 F.2d 52, 55 (8th

Cir. 1976) (considering whether corporate conduct showed intent to
“circumvent important statutory purposes”); Pertuis v. Front Roe Rests.,

Inc., 817 S.E.2d 273, 280 (S.C. 2018) (considering whether corporate
 43

structure has been abused to circumvent a statute); Minnelusa Co. v.

Andrikopoulos, 929 P.2d 1321, 1324 (Colo. 1996) (en banc) (considering

whether corporate conduct “circumvents [the] intended purpose” of a

statute protecting creditors and minority shareholders).

No grounds to interfere with Casey’s designation exists in this case.

Eller and McCann—the two employees that the majority finds Casey’s

misdesignated as having safety-sensitive positions—worked in a

distribution center warehouse. Their core tasks involved processing boxes

of cigarettes. They performed these tasks in an area of the warehouse
enclosed by a common chain-link fence referred to as “the cage.” Panels

on the fence opened so pallets of cigarettes could move in and out. The

cage allowed Casey’s to keep cigarettes—a highly regulated controlled

substance—separate from other goods stored and sorted for distribution

at the warehouse. For employees to get to and from this cigarette area,

they must walk through the warehouse. In doing so, they traverse areas

and aisles lined with conveyor belts and trafficked with forklifts. The

forklifts constantly move pallets on and off shelves, some of which rise to

the ceiling. Stickers on the floor warn of forklift traffic. Employees who

work in the cigarette area move through these aisles multiple times per

day, including every time they start or finish a shift, use the breakroom,

or use the restroom.

Despite the efforts of employers and employees to minimize risk and

maximize safety in the regular operation of a warehouse, injuries and

property damage nonetheless often still occur. See Occupational Safety &

Health Admin., U.S. Dep’t of Lab., OSHA 3220-10N 2004, OSHA Pocket

Guide: Worker Safety Series—Warehousing 1 (2004), https://
www.osha.gov/sites/default/files/publications/3220_Warehouse.pdf

[https://perma.cc/27JM-V8Z8] (stating that “[w]arehouse operations can
 44

present a wide variety of potential hazards for the worker” and that “[t]he

fatal injury rate for the warehousing industry is higher than the national

average for all industries”). And employees can still be injured by their

proximity and movements in a warehouse even when they, themselves,

aren’t performing dangerous tasks. See, e.g., Pella Corp. v. Marshall, No.

14–2121, 2016 WL 1358956, at *1 (Iowa Ct. App. Apr. 6, 2016) (employee

struck by forklift); Dunlap v. Action Warehouse, 824 N.W.2d 545, 548 (Iowa

Ct. App. 2012) (warehouse employee injured by falling onto a forklift);

Gamerdinger v. Schaefer, 603 N.W.2d 590, 592 (Iowa 1999) (nonforklift
operator hit by a forklift); Justus v. Anderson, 400 N.W.2d 66, 67 (Iowa Ct.

App. 1986) (warehouse supervisor injured by negligently-stacked boxes

falling on him); Brigdon v. Brandrup, 267 N.W.2d 396, 398 (Iowa 1978) (en

banc) (warehouse employee injured by truck); Webber v. E. K. Larimer

Hardware Co., 234 Iowa 1381, 1383, 15 N.W.2d 286, 287 (1944)

(warehouse employee injured by steel sheets falling on him). An

employee’s own tasks often might bear little relevance to whether she holds

“a job wherein an accident could cause loss of human life, serious bodily

injury, or significant property or environmental damage.” Iowa Code

§ 730.5(1)(j) (emphasis added).

In a distribution center environment like the one described in this

case, not only could employees impaired by drugs fail to avoid injuries to

themselves, but they could cause injuries to others. Casey’s described

potential risks to employees like Eller and McCann in the record. It isn’t

hard to imagine an impaired employee on the way to the breakroom

ambling in front of a moving forklift. The forklift conceivably could hit the

impaired employee, crash into another employee or machine in avoiding
the collision with the impaired employee, or cause damage to property

along the aisle. Suffice it to say that the permutations of ways impaired
 45

people in a busy distribution center with moving conveyors and hurtling

forklifts loaded with pallets could cause accidents resulting in personal

injury or property damage are vast. Permitting only employees with jobs

whose duties generally present greater risks ignores the risk created by

others who necessarily interact with them in their space. See, e.g., Knox

Cnty. Educ. Ass’n v. Knox Cnty. Bd. of Educ., 158 F.3d 361, 378–79 (6th

Cir. 1998) (finding school teacher and school administrator positions

properly designated as safety sensitive since “[c]hildren, especially younger

children, are active, unpredictable, and in need of constant attention and
supervision” and “[e]ven momentary inattention or delay in dealing with a

potentially dangerous or emergency situation could have grievous

consequences”).

And in this case, it would appear that—until they filed their

lawsuit—neither Eller nor McCann disagreed with Casey’s designation of

them as safety sensitive. Almost three months before their drug test, Eller

and McCann received the memorandum from Casey’s human resources

department sent to “All Safety Sensitive Employees” about random drug

testing. The memorandum required employees to return a signed drug-

testing verification form to their supervisor. Both did. The form stated: “I

further understand that I may contact my immediate supervisor or the

Vice President of Human Resources at the Corporate Headquarters if I

have any questions with regard to these polices.” If either employee

doubted or disputed whether they should be considered safety-sensitive

employees when they received the memorandum or submitted their signed

verification form, it has escaped capture in this record.

The warehouse described in this record certainly presents a
sufficiently hazardous environment for Casey’s to have designated both

Eller and McCann as employees with safety-sensitive positions at this
 46

work site. I thus respectfully dissent from the majority’s holding on this

issue in division III.C.1 and similarly dissent from the majority’s holding

in division III.D that Eller and McCann are entitled to associated monetary

damages. I join divisions III.A, III.B, III.C.2, and III.C.3 of the majority’s

opinion.

Christensen, C.J., and McDonald, J., join this concurrence in part

and dissent in part.