The Fourth Amendment of the United States Constitution protects an individual from unreasonable searches and seizures. Mandatory urinalysis drug and alcohol testing of prospective and current employees by a government employer is a search within the scope of the Fourth Amendment. (See Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 617 [103 L.Ed.2d 639, 659-660, 109 S.Ct. 1402].) In this case we must determine the reasonableness of such a search.
More specifically, the issue is this: May the government, here the City of Glendale, require all persons seeking government positions—including both current employees seeking promotion and nonemployees tentatively approved for employment—to submit to urinalysis drug and alcohol testing, when the government has no reason to suspect substance abuse and the positions are not ones in which substance abuse poses special safety or security risks? The lead opinion holds, and I agree, that testing of current employees seeking promotion is unconstitutional. With respect to prospective employees, however, the lead opinion holds that the testing does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. I do not join in this holding and would invalidate mandatory testing of both prospective and current employees, because the lead opinion provides no persuasive basis for distinguishing between the two groups.
According to the lead opinion, across-the-board drug and alcohol testing of nonemployee job applicants imposes a “rather minor” intrusion on the *919privacy of these individuals because they, unlike current employees seeking promotion, must submit to a preemployment physical examination that routinely includes urinalysis. (Lead opn., ante, at p. 884.) The lead opinion’s assumption that all “routine” physicals are necessarily constitutional, irrespective of their scope, is questionable, as Justice Mosk notes in his concurring and dissenting opinion. (Conc. and dis. opn. of Mosk, J., ante, at p. 904.)
Furthermore, as Justice Mosk explains: “It is evident from the record that whatever physical examination had been done prior to the institution of drug testing did not compel disclosure of all the medications the applicant was taking, nor administer tests that would reveal the presence of such medication; rather, this disclosure was a particular feature of the drug screening. Although the record is somewhat unclear on this point, it appears that urinalysis before drug screening is only for the presence of blood, sugar, and protein in the urine. Moreover, even if the medical examination had required applicants to respond to a written inquiry concerning the medications they were presently taking, such an inquiry is obviously less invasive than the use of urinalysis to obtain such information.” (Cone, and dis. opn. of Mosk, J., ante, at p. 903.) It also would require the “additional intrusion of monitored urination—‘a type of search particularly destructive of privacy and offensive to personal dignity.’ ” (Ibid.)
The lead opinion stresses the economic interest of employers, public as well as private. It points to studies reporting a link between employee drug use and “increased absenteeism, diminished productivity, greater health costs, . . . and more frequent turnover.” (Lead opn., ante, at p. 1 Nonetheless, with respect to current employees, the lead opinion concludes that suspicionless across-the-board drug and alcohol testing is not necessary to serve the employer’s economic interest. As the lead opinion explains, the employer has a less intrusive way to determine whether a current employee’s work performance is affected by substance abuse, namely, by observing the employee at work and evaluating the employee’s work product, safety record, and attendance record. (Lead opn., ante, at p. 883.)
*920This same method is equally available to evaluate a job applicant hired on a probationary basis. But the lead opinion rejects this approach. Hiring the applicant, according to the lead opinion, “represents a considerable investment on the part of an employer, often involving the training of the new employee,” and replacing the applicant “generally will entail additional expenses, including those relating to the hiring of a replacement.” (Lead opn., ante, at p. 883.) Because of these economic factors, the lead opinion states, the employer needs to conduct suspicionless urinalysis testing of all job applicants.
I question whether the government’s purely economic considerations, as articulated by the lead opinion, can ever be sufficient “to overcome the interests in vindicating human dignity” embodied in the constitutionally guaranteed right of privacy. (Holtzman, Applicant Testing for Drug Use: A Policy and Legal Inquiry (1991) 33 Wm. & Mary L.Rev. 47, 90; see also Note, Middlebrooks v. Wayne County: Does Governmentally Imposed Preemployment Drug Testing Dispose of Constitutional Rights? (1995) 1995 Det. C.L.Rev. 1155, 1178-1179.) The United States Supreme Court has never found a government employer’s economic interest to be sufficient to permit suspicionless drug or alcohol testing. But even assuming, for the sake of argument, that purely economic considerations may sometimes justify such action, to pass constitutional muster the government would have to show that the invasion of the individual’s constitutional right to privacy is necessary because the government’s economic interest is substantial and there is no less intrusive alternative available. Only then would the government’s purely economic interest be “important enough” to justify the particular search at hand. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646,_ [132 L.Ed.2d 564, 579, 115 S.Ct. 2386, 2394-2395], italics in original.) Here, the City of Glendale has not made such a showing.
In this case, I am not persuaded that the City of Glendale’s urinalysis drug and alcohol testing of all job applicants tentatively approved for employment will save the city substantial amounts of money, and that the city has no less invasive alternative. I question how effective such testing is at predicting which persons’ job performance will be impaired by substance abuse. Testing will not weed out persons who begin substance abuse after they are hired. It also will not reveal whether the job applicant has temporarily abstained from the use of alcohol or drugs in order to pass the test. (Note, Middlebrooks v. Wayne County: Does Governmentally Imposed Preemployment Drug Testing Dispose of Constitutional Rights?, supra, 1995 Det. C.L.Rev. at p. 1177.) Nor is it true that every job applicant who tests positive will be an incompetent employee. In sum, the City of Glendale’s urinalysis drug and alcohol screening of all prospective employees is both overinclusive and underinclusive: overinclusive because some capable and productive *921workers will, if a trace of an illicit substance is found, fail the test; and underinclusive because some prospective employees will, simply by temporarily abstaining from using illicit substances, be able to pass the test.
Further, there is a less intrusive alternative to determine whether substance abuse will impair a new employee’s job performance: a probationary period during which the employer can observe the employee on the job. (Note, Middlebrooks v. Wayne County: Does Governmentally Imposed Preemployment Drug Testing Dispose of Constitutional Rights?, supra, 1995 Det. C.L.Rev. at p. 1177.) (This is the same method that the lead opinion applies to current employees being considered for promotion.) Granted, this alternative may impose certain costs on the employer. But such costs are offset, at least to some extent, by the greater accuracy that on-the-job observation would provide in determining a new employee’s job performance. The City of Glendale has not demonstrated that, on balance, the costs of probationary observation are so great as to justify the substantial intrusion on constitutionally protected privacy interests that across-the-board suspicionless urinalysis inflicts on prospective employees.
Because I conclude that the Fourth Amendment does not permit the City of Glendale to engage in blanket suspicionless urinalysis drug and alcohol testing either of employees seeking promotion or of prospective employees, I do not address whether the City’s testing also violates an individual’s right to privacy set forth in article I, section 1 of the California Constitution.
Conclusion
Substance abuse has ruined countless lives and has caused economic losses to government and industry. Yet, when considering the constitutionality of government-conducted suspicionless urinalysis testing for substance abuse, courts must consider not only the government employer’s economic interest but also the constitutionally protected interests of citizens in the sanctity of their privacy. We live in an era when personal information that previously could only have been gathered at great expense, or could not have been gathered at all, is now routinely collected, analyzed, packaged, and distributed at great speed and trivial cost. As the economic and technological barriers to the invasion of privacy have collapsed, the constitutional protection of our privacy assumes an ever-increasing importance.
This case conjures up visions of an Orwellian nightmare in which the government, through intrusive bodily testing, microscopically scrutinizes the most intimate aspects of the bodies and lives of all individuals seeking government positions, justifying such scrutiny on the ground that the intrusions will enhance efficiency, productivity, and cost-effectiveness. In the *922words of one commentator: “[B]y submitting millions of Americans to systematic bio-chemical surveillance of their blood or urine, our level of expectations of individual privacy will greatly diminish, and we will, thereby, surrender a considerable amount of autonomy, dignity and sovereignty. We [will] have allowed the government and employers to transcend an invisible shield which stood at the edge of our bodies. . . . John Stuart Mill’s aphorism, ‘Over himself, over his own body and mind, the individual is sovereign,’ no longer sounds relevant.” (Proposal for a Substance Abuse Testing Act: The Report of the Task Force on the Drug-Free Workplace, Institute of Bill of Rights Law (1991) 33 Wm. & Mary L.Rev. 5, 33-34. [Comment of task force member Cornish, italics omitted.])
CHIN, J., Concurring and Dissenting.I concur in the lead opinion insofar as it upholds the drug testing program of the City of Glendale (City) as to conditionally accepted applicants for new employment. I disagree with the lead opinion, however, to the extent it completely invalidates City’s program as to conditionally promoted, current employee applicants without giving City needed guidance as to which job positions could properly justify applicant testing. I believe City’s program is valid in its entirety, and I fail to see any significant legal distinction between the two categories of applicants. Indeed, the lead opinion’s otherwise informative footnote 1 (lead opn., ante, at p. 853) fails to include the fact that five members of this court (Justice Mosk, Justice Kennard, Justice Baxter, Justice Brown, and myself) find that distinction legally unsound.
In determining the validity of City’s program, the lead opinion purports to balance the job applicant’s privacy interests and expectations with City’s public interest in maintaining a drug-free working environment in its offices. All the applicable authorities support the use of such a balancing test. (See Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646,_[132 L.Ed.2d 564, 574, 115 S.Ct. 2386, 2390-2391] (Vernonia); Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 619 [103 L.Ed.2d 639, 661,109 S.Ct. 1402] (Skinner); Treasury Employees v. Von Raab (1989) 489 U.S. 656, 665-666 [103 L.Ed.2d 685, 702, 109 S.Ct. 1384] (Von Raab); Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 [26 Cal.Rptr.2d 834, 865 P.2d 633] (Hill).) But contrary to the lead opinion, in this case the balance clearly favors City as to both classes of applicants covered by its drug testing program.
In my view, whether we apply the federal or California cases on the subject of drug testing, we should uphold City’s program in its entirety. The supposed privacy intrusions (indirect monitoring of urination and confidential questioning about current use of prescription drugs) are equally minimal, *923whether applied to new or conditionally promoted employees. The testing and medical inquiry is confidential, nonrandom, and relatively nonintrusive, being performed during a comprehensive medical examination routinely given to all applicants for new employment or promotion.
Moreover, City’s interest in assuring that its employees are drug free is as great or greater with respect to applicants seeking promotion to positions carrying higher responsibility than with respect to applicants seeking entry level positions. As we shall see, all the circumstances the lead opinion cites to support drug testing of applicants for new employment likewise would support testing of applicants for promotion.
1. City’s plan is only minimally intrusive
a. Drug testing occurs as part of a routine medical examination
The lead opinion correctly observes that City’s drug testing occurs during a comprehensive medical examination routinely given to all applicants for new employment or promotion. (Lead opn., ante, at pp. 853-854.) As the lead opinion states, “the intrusion on privacy is significantly diminished because the drug testing urinalysis in this case was administered as part of a preemployment medical examination that the job applicant, in any event, would have been required to undergo.” (Lead opn., ante, at p. 884, fn. omitted.)
City’s program requires conditionally promoted employees to take the drug test as part of the same comprehensive medical exam required of all applicants for employment. In my view, this aspect of the plan provides a ready means of distinguishing the high court cases on which the lead opinion relies in invalidating City’s plan as to promoted employees. As the lead opinion itself acknowledges, “neither Skinner nor Von Raab considered whether the intrusion on privacy rises to [a significant] level when such drug testing is not administered as a separate procedure (as it was in Skinner and Von Raab) but rather is conducted as part of a comprehensive medical examination that already includes a urinalysis component.” (Lead opn., ante, at p. 884.)
A statement in Von Raab also supports this position. In finding that persons seeking promotions to positions involving handling of sensitive materials could be drug tested, the high court added that this testing would be appropriate, “especially if the positions covered under this category require background investigations, medical examinations, or other intrusions that may be expected to diminish their expectations of privacy in respect of *924a urinalysis test.” (Von Raab, supra, 489 U.S. at p. 677 [103 L.Ed.2d at p. 710], italics added.) This statement suggests that applicants’ privacy expectation is diminished, and the analysis differs, when, as here, drug testing is incident to a medical exam.
b. ADA allows medical examinations of promoted employees
In concluding that Von Raab forecloses City’s attempt to test conditionally promoted applicants, the lead opinion erroneously assumes that the federal Americans with Disabilities Act (42 U.S.C. §§ 12101-12213) (ADA) would preclude consensual drug testing and medication disclosure as part of a routine medical examination taken following a conditional offer of promotion. (Lead opn., ante, at pp. 885-886.) I disagree.
First, as the lead opinion observes (lead opn., ante, at p. 886, fn. 18), plaintiff has not raised an ADA challenge to City’s policy of requiring exams for conditionally promoted employees, and the parties have not briefed the issue. We should not reach this important, perhaps even pivotal, point of federal law under these circumstances.
Second, I dispute the lead opinion’s conclusion that the ADA would forbid an employer to require a current employee who seeks a promotion to submit to a medical examination, or would allow such an examination only if “the nature and duties of the employment position to which the current employee is seeking promotion differ in some relevant respect from those of the employee’s current position.” (Lead opn., ante, at p. 886.) To the contrary, the ADA allows medical examinations which are “job-related and consistent with business necessity.” (42 U.S.C. § 12112(d)(4)(A).) Clearly, the conditional approval of a promotion necessarily renders a current medical examination both “job-related” and “consistent with business necessity” under the ADA.
Indeed, the lead opinion acknowledges that, in testing, City “is seeking information that is relevant to its hiring decision and that it legitimately may ascertain.” (Lead opn., ante, at p. 883, fn. 15.) Is not the testing therefore “job-related and consistent with business necessity” under the ADA? (See also 42 U.S.C. § 12114(a) [ADA does not apply to employee or applicant currently engaging in illegal drug use]; Collings v. Longview Fibre Co. (9th Cir. 1995) 63 F.3d 828, 831-836 [provisions of ADA and comparable Washington statute do not protect current drug users from discharge for drug-related misconduct].) Thus, City properly treats newly hired and newly promoted employees equally in requiring drug testing as a component of a comprehensive medical examination.
*925c. Only indirect, aural monitoring of urination is involved
I believe it quite significant that only indirect monitoring of the urination process is involved in City’s program, as contrasted to the more intrusive direct visual monitoring at issue in Hill. Although the lead opinion fails to mention it, all the leading cases observe that such indirect monitoring is minimally intrusive or, as Vernonia describes it, “negligible.” (Vernonia, supra, 515 U.S. at p__[132 L.Ed.2d at p. 578, 115 S.Ct. at p. 2393]; see Hill, supra 1 Cal.4th at pp. 43, 51-52; Skinner, supra, 489 U.S. at p. 626 [103 L.Ed.2d at pp. 665-666]; Von Raab, supra, 489 U.S. at pp. 672-673, fn. 2 [103 L.Ed.2d at p. 706]; Willner v. Thornburgh (D.C. Cir. 1991) 928 F.2d 1185, 1189-1191 [289 App.D.C. 93] (Willner), cert. den. sub nom. Willner v. Barr (1991) 502 U.S. 1020 [116 L.Ed.2d 760, 112 S.Ct. 669].)
The lead opinion does recognize that “[although in this case the city’s addition of the drug screening test to its preexisting medical examination procedure was accompanied by the institution of several new security measures (such as the aural monitoring of the urinalysis process) that entailed some additional intrusion on the applicant’s privacy with regard to providing the urine sample, the incremental intrusion on privacy attributable to these new measures appears rather minor when viewed in the context of a complete medical examination.” (Lead opn., ante, at p. 884, fn. omitted, original italics.) I agree, and I note that such reasoning applies with equal force to conditionally promoted employees.
d. Medical inquiry regarding current drug use is nonintrusive
Finally, I observe that confidential medical inquiry regarding a conditionally hired applicant’s present use of prescribed drugs involves no serious infringement of informational privacy, and the lead opinion appears to agree. (See lead opn., ante, at p. 884, and fn. 17.) The United States Supreme Court has held that requiring advance disclosure of medications as part of a drug testing program is neither per se unreasonable nor a significant invasion of privacy where, as here, the program limits disclosure to authorized medical and administrative personnel. (See Vernonia, supra, 515 U.S. at p._[132 L.Ed.2d at pp. 577-579,115 S.Ct. at pp. 2393-2394]; see also Skinner, supra, 489 U.S. at p. 626, fn. 7 [103 L.Ed.2d at p. 666].) As the record indicates, City’s program required that it hold any medical information it received from applicants in strict confidence and not divulge the information to law enforcement agencies or other persons lacking a legitimate need to know it.
We should keep in mind that City’s medication disclosure requirement was deemed necessary to protect applicants, and not merely to increase the *926accuracy of the testing. The disclosure requirement protects applicants from “false positive” drug test results by allowing them to reveal any legally prescribed medications they may be taking. (See Hill, supra, 7 Cal.4th at pp. 52-54.)
Thus, I think it beyond reasonable dispute that City’s drug testing program resulted in only a slight, minimal, or “negligible” intrusion on personal privacy. I turn next to the question whether new or conditionally promoted employees had or have a reasonable expectation that such minimal intrusions will not occur.
2. Conditionally hired or promoted employees have a reduced expectation of privacy as to being tested for illegal drugs
Next I observe that, in addition to the minimally intrusive nature of the procedures involved here, applicants for employment or promotion with City have a reduced expectation of privacy regarding being tested for illegal drugs. Although the lead opinion disclaims reliance on this factor (see lead opn., ante, at p. 886, fh. 19), all applicants (including those seeking promotion) have advance notice of the testing requirement. Most leading cases in the area stress the element of advance notice as a factor in upholding applicant testing as opposed to unannounced, random testing of current employees. (E.g., Von Raab, supra, 489 U.S. at p. 672, fn. 2 [103 L.Ed.2d at p. 706] [advance notice procedure “significantly minimize[s] the program’s intrusion on privacy interests”]; Willner, supra, 928 F.2d at pp. 1188-1194; Harmon v. Thornburgh (D.C. Cir. 1989) 878 F.2d 484, 489 [278 App.D.C. 382], cert. den. sub nom. Bell v. Thornburgh (1990) 493 U.S. 1056 [107 L.Ed.2d 949, 110 S.Ct. 865]; American Postal Workers Union v. Frank (D.Mass. 1990) 734 F.Supp. 40, 41, revd. on other grounds (1st Cir. 1992) 968 F.2d 1373; Transportation Institute v. U.S. Coast Guard (D.D.C. 1989) 727 F.Supp. 648, 654-655; Hill, supra, 1 Cal.4th at p. 42; Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1048-1050 [264 Cal.Rptr. 194]; Middlebrooks v. Wayne County (1994) 446 Mich. 151 [521 N.W.2d 774, 783-784] (conc. opn. of Boyle, J.); Comment, Government Drug Testing: A Question of Reasonableness (1990) 43 Vand. L.Rev. 1343, 1367 & fn. 216, 1368, fn. 220 [minimal intrusion as applied to job applicant testing].)
I conclude that because applicants for City employment or promotion anticipate testing regarding their ingestion of illegal drugs, they have a reduced expectation of privacy regarding such testing.
3. City has important and substantial interests in testing conditionally hired or promoted employees
Even if plaintiff had demonstrated that City’s drug testing program involved a substantial or serious privacy intrusion, and that conditionally *927promoted applicants had a reasonable expectation they would not be tested for illegal drugs, clearly City has shown sufficient justification for imposing a drug test requirement despite the intrusion. City’s interest in maintaining a drug-free working environment for all City offices is equally important and substantial whether new or conditionally promoted employees are involved. Indeed, in most instances, City would appear to have a jfar greater interest in assuring that persons promoted to higher, more responsible City positions are drug free.
Although the lead opinion properly finds the Court of Appeal’s “disastrous consequence” test too restrictive (see lead opn., ante, at p. 900, fn. 25), the lead opinion otherwise gives no further guidance to City or others who wish to design a constitutional drug testing program covering conditionally promoted employees. Instead, the lead opinion simply cites a random testing case (Harmon v. Thornburgh, supra, 878 F.2d 484) as illustrative of “current constitutional and statutory authority.” (Lead opn., ante, at p. 899.) Rather than refer City to an inapposite decision (closer on point would be Willner, supra, 928 F.2d 1185, an applicant testing case), I would advise City that the state and federal Constitutions are clearly satisfied by the following important and substantial public interests City has already asserted in this case.
a. Drug testing helps assure workforce economy, efficiency, and safety
First and foremost, City has an important and legitimate interest in hiring and promoting a safe, secure, dependable, and efficient workforce. In this case, City had experienced prior disciplinary problems related to drug use by its employees. City knew that, in one sampling, more than one fifth of all prospective employees tested positive for illegal drugs. City accordingly could foresee that additional problems would arise in the future unless it initiated an effective drug testing or screening program.
Thus, a consideration present with respect to all applicants for employment or promotion to any City job is City’s need to reduce the adverse effects of drug use among its employees, effects that would include decreased efficiency and morale as well as increased costs from employee assistance or rehabilitation programs, workers’ compensation payments, medical and hospitalization benefits, and sick leave. As the lead opinion acknowledges, “[i]n light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees—increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover—an employer, private or public, clearly has a legitimate (i.e., constitutionally permissible) interest in ascertaining whether persons to be employed in any *928position currently are abusing drugs or alcohol.” (Lead opn., ante, at pp. 882-883, fns. omitted.) These considerations apply with equal force to employees seeking promotion to new, and possibly higher, levels of responsibility.
The lead opinion (ante, at pp. 882-883) speculates that employers presumably have already gathered information regarding existing employees’ productivity, absenteeism records, and the like, and thus have less need to test those employees for drugs. This is a weak point of distinction. An untested, drug-abusing employee who is satisfactorily “getting by" at a lower job level may well prove totally inadequate at a new position involving additional skills or responsibilities. Thus, an employer has an obvious and immediate need to test persons being considered for promotion.
The United States Supreme Court has expressed doubt as to the effectiveness of employer observations for detecting drug use. (See Skinner, supra, 489 U.S. at p. 628 [103 L.Ed.2d at p. 667] [drug-impaired employees “will seldom display any outward ‘signs detectable by the lay person or, in many cases, even the physician’ ”]; Von Raab, supra, 489 U.S. at p. 674 [103 L.Ed.2d at p. 707] [“Detecting drug impairment on the part of employees can be a difficult task, especially where ... it is not feasible to subject employees and their work product to the kind of day-to-day scrutiny that is the norm in more traditional office environments.”]; see also National Treasury Emp. Union v. U.S. Customs Serv. (D.C. Cir. 1994) 27 F.3d 623, 629 [307 App.D.C. 173] [“A use of drugs, including weekend use, that is sufficient to expose an employee to bribery or intimidation by a drug smuggler will not necessarily affect the user’s work product, and may thus escape detection through ‘day-to-day scrutiny’ of the employee’s performance on the job.”].)
Thus, I would conclude that the lead opinion’s purported distinction between newly hired and newly promoted employees is illogical and impractical, and affords insufficient basis for partly invalidating City’s drug testing program.
b. Public nature of City government justifies drug testing
The high court has indicated that the “operation of a government office” may present “special needs” beyond normal law enforcement that would justify drug testing. (Skinner, supra, 489 U.S. at pp. 619-620 [103 L.Ed.2d at p. 661]; see also Willner, supra, 928 F.2d at p. 1188, discussed below.) City’s very nature as a public enterprise involves considerations of public safety, health, security, morale, and fiscal integrity, which are necessarily
*929inherent in some degree in every job category. Drug use predictably could adversely affect City employees’ ability to function effectively and efficiently in all these areas. The overriding public interest in assuring the safe, sound, and efficient operation of City government amply justifies the minimal privacy intrusions involved here.
Moreover, running a city effectively requires a high degree of public trust in those who carry out its daily operations. City has an obvious need to maintain public confidence in the integrity and efficiency of its work force and to secure capable and productive employees before their new terms of employment commence. (See Willner, supra, 928 F.2d at p. 1192.)
For example, under City’s “Major Emergency Disaster Preparedness Plan,” all City employees must be prepared to be available to assist the public during major disasters or emergencies. (See Gov. Code, §3100 et seq.) Additionally, many if not most City employees are engaged in tasks— such as operating machinery, working in or near power, water, construction or sanitation facilities, or driving motor vehicles—that could well have public safety implications. Many other City employees are entrusted with or have access to sensitive or confidential information or substantial public funds.
These factors unite to provide important and substantial justifications for City’s drug testing program when balanced against the very minor privacy intrusions involved in that program.
c. Case law supports drug testing
I note that none of the applicable cases, federal or state, draws a distinction between newly hired and newly promoted employees for purposes of privacy analysis. The cases do distinguish generally between across-the-board applicant testing, as involved in this case, and random, unannounced testing, a more difficult area not directly apposite to our situation. (See, e.g., IBEW, Local 1245 v. U.S. NRC (9th Cir. 1992) 966 F.2d 521 [upholding random drug testing for certain nuclear power plant workers]; AFGE Local 1533 v. Cheney (9th Cir. 1991) 944 F.2d 503 [upholding random testing of civilian Navy personnel with access to classified information]; Intern. Broth, of Teamsters v. Dept. of Transp. (9th Cir. 1991) 932 F.2d 1292, 1300-1307, and cases cited at p. 1306 [upholding random testing and preemployment testing for commercial bus and truck drivers]; National Treasury Employees Union v. Yeutter (D.C. Cir. 1990) 918 F.2d 968, 971-976 [287 App.D.C. 28] [upholding drug testing for all “on-duty” Department of Agriculture employees operating motor vehicles carrying passengers, but requiring nexus between employment and potential harm as to “off-duty” drug use]; IBEW, *930Local 1245 v. Skinner (9th Cir. 1990) 913 F.2d 1454 [upholding federal testing of natural gas and pipeline employees]; Bluestein v. Skinner (9th Cir. 1990) 908 F.2d 451, 454-458 [upholding government testing of private pilots, flight crews, and controllers]; Transport Workers’ Union v. S.E. PA. Transp. Auth. (3d Cir. 1988) 884 F.2d 709 [upholding government testing of mass transit workers]; National Federation of Federal Employees v. Cheney (D.C. Cir. 1989) 884 F.2d 603 [280 App.D.C. 164] [invalidating in part random drug testing by Army Department of all civilian employees in certain “critical” positions]; Harmon v. Thornburgh, supra, 878 F.2d 484 [invalidating, as overly broad, random testing of all Department of Justice criminal prosecutors]; American Fed. of Gov. Emp. v. Derwinski (N.D.Cal. 1991) 111 F.Supp. 1493, 1500-1501 [invalidating in part random testing of Veterans Administration personnel for lack of sufficient nexus with job safety].)
The constitutional problems some courts have noted with respect to random drug testing result from its more intrusive nature, which involves occasional, unpattemed, and unannounced drug testing of current employees. Obviously, that testing presents greater privacy concerns than situations where, as here, the persons tested have prior notice of the test, and indeed have initiated the steps leading to the testing to obtain employment or promotion.
To justify random testing of current employees, the government generally must show a direct nexus, usually involving safety, integrity, or security considerations, between the job duties and the anticipated harm. (See, e.g., Harmon v. Thornburgh, supra, 878 F.2d at pp. 488-492, and cases cited; Note, Dimeo v. Griffin: Another Random Drug Test or the Latest Infringement on the Fourth Amendment Rights of American Workers? (1993) 87 Nw. U. L.Rev. 1087,1111-1114.) Unlike applicant testing, random employee testing does not occur at a predetermined time, with advance notice, as part of a routine process which the applicant voluntarily initiates by applying for employment or promotion. Most cases recognize the distinguishable nature of preemployment or prepromotion testing.
Thus, with few exceptions, cases have had no difficulty upholding applicant drug testing programs that would have been of questionable constitutionality if arising in a different context. (See Von Raab, supra, 489 U.S. at pp. 667, 672-673, fn. 2 [103 L.Ed.2d at pp. 706-707]; Piroglu v. Coleman (D.C. Cir. 1994) 25 F.3d 1098, 1103-1104 [306 App.D.C. 392] [upholding random drug tests for trainees during probationary period]; Intern. Broth, of Teamsters v. Dept, of Transp., supra, 932 F.2d at pp. 1299, 1307; Willner, supra, 928 F.2d at pp. 1188-1194 ; IBEW, Local 1245 v. Skinner, supra, 913 *931F.2d at p. 1464 [privacy considerations ordinarily applicable in random testing situations are not pertinent to applicants for employment]; Harmon v. Thornburgh, supra, 878 F.2d at p. 489 [acknowledging distinction]; Nat. Federation of Fed. Employees v. Weinberger (D.C. Cir. 1987) 818 F.2d 935, 943 [260 App.D.C. 286]; American Postal Workers Union v. Frank, supra, 734 F.Supp. at p. 41, revd. on other grounds (1st Cir. 1992) 968 F.2d 1373; Transportation Institute v. U.S. Coast Guard, supra, 727 F.Supp. at pp. 654-655 [upholding preemployment testing for private employees in maritime industry]; Wilkinson v. Times Mirror Corp. supra, 215 Cal.App.3d at pp. 1048-1050 [upholding preemployment testing by private employer]; Middlebrooks v. Wayne County, supra, 521 N.W.2d at pp. 783-784 (conc. opn. of Boyle, J.); see also 4 LaFave, Search and Seizure (3d ed. 1996) § 10.2(g), p. 450 [“somewhat more likely to be upheld are testing schemes which are part of an established physical examination or of a screening process for prospective employees” (fns. omitted)].)
In Willner, supra, 928 F.2d 1185, plaintiff applicant was disqualified for failing to take a drug test for an attorney position with the Department of Justice. Plaintiff sued, and the federal district court enjoined further drug testing, relying on an earlier random testing case (Harmon v. Thornburgh, supra, 878 F.2d 484). On appeal, a majority of the court reversed the judgment. The court’s reasoning is quite pertinent to our case.
First, the Willner majority observed that the challenged drug testing program was supported by a special need beyond mere law enforcement, namely, the government’s interest in the “ ‘operation of a government office.’ ” (Willner, supra, 928 F.2d at p. 1188, quoting Skinner, supra, 489 U.S. at pp. 619-620 [103 L.Ed.2d at p. 661].) Perhaps recognizing that such a “special need” arguably fell short of the safety, integrity, or security concerns present in many of the random search cases, Willner distinguished applicant testing and observed that no “high degree of justification” would be required in those cases, where the applicants had little or no reasonable expectation of privacy, and the intrusion into their personal privacy was minimal. (Willner, supra, 928 F.2d at pp. 1188-1189.) That analysis is consistent with Skinner and Von Raab and is fully applicable here.
Willner stressed that (1) the job applicant testing involved only indirect monitoring; (2) all applicants had prior notice that drug tests would be conducted as a prerequisite to employment; (3) testing was neither random nor discretionary but certain to occur as part of the application process; and (4) testing resulted from the exercise of a personal choice to apply for the position. (Willner, supra, 928 F.2d at pp. 1189-1191.) Each of these factors reduced the applicants’ expectation of privacy and effected a minimal *932privacy intrusion. All of them exist in the present case, as to applicants both for initial employment and for promotion.
Thus, Willner observed that job applicants “know they will have to undergo a drug test if they are tentatively selected for employment .... Pre-employment testing is not random. . . . [A]ll applicants must provide a urine sample before being hired. The procedure is scheduled ahead of time and the applicant is given advance notice of the date. All of this, Von Raab indicated, reduces ‘to a minimum’ the unsettling effect of unexpected intrusions. ...[<][] Similarly, it is significant that the individual has a large measure of control over whether he or she will be subject to urine testing. No one is compelled to seek a job at the Department of Justice. [Citation.] If individuals view drug testing as an indignity to be avoided, they need only refrain from applying. This too is an important distinction between applicants and incumbents. The choice presented to current employees—undergo random drug testing or lose your job—is not comparable to that facing applicants.” (Willner, supra, 928 F.2d at pp. 1189-1190.)
Willner noted that, under Von Raab, the employees “became subject to drug testing only because they chose to apply for promotions. To that extent, they also had control over whether they would be tested and they had advance knowledge of the testing. The Supreme Court considered these factors among others that served to diminish their expectation of privacy. [Citation.]” (Willner, supra, 928 F.2d at p. 1190.)
As for the competing governmental interests that courts must weigh in the balance, Willner elaborated on the justification it had mentioned earlier, namely, the special needs inherent in operating a government office. The court stated that a government entity “has a legitimate interest in maintaining public confidence and trust” in its operations. (Willner, supra, 928 F.2d at p. 1192.) Drug use by its employees would seriously undermine that confidence. (Ibid.) Additionally, the government has an overriding interest in securing a work force qualified to do the assigned work. (Ibid.) see also Comment, Weighing the Factors of Drug Testing for Fourth Amendment Balancing (1992) 60 Geo. Wash. L.Rev. 1151, 1186-1187 [discussing government’s interest in assuring integrity of its workplace as justification for drug testing].)
I do not, of course, reach the more difficult question whether or not these considerations would justify random testing of incumbent, nonapplicant government employees. Different factors (including the employees’ possibly heightened expectation of privacy) may come into play in these situations. (See Willner, supra, 928 F.2d at pp. 1192-1193.) But a public employer’s *933need to screen out unsuitable applicants for employment or promotion before they join the work force or assume their new positions is obvious and substantial.
4. Conclusion
The privacy intrusions involved in City’s drug testing program (indirect, aural monitoring; confidential questioning) are minimal and negligible under the applicable case law. Testing is neither random nor discretionary, but is predictable, routine, and certain, being conducted in a medical environment as part of a regular, comprehensive medical examination given to all applicants for employment or promotion. The tests are performed under circumstances aimed at maintaining a reasonably high degree of confidentiality, personal dignity, and privacy.
Applicants for employment or promotion, having prior notice that they must take drug tests, have a reduced expectation of privacy concerning tests designed to disclose facts regarding any present illegal drug use.
Balanced against the minimal intrusion on the applicants’ privacy are City’s important and substantial interests in maintaining a drug-free environment for all its new or promoted employees, in minimizing the costs inherent in drug abuse and rehabilitation, and in serving the overriding public interest in the safe and efficient operation of City government.
I would uphold City’s drug testing program in its entirety.
Baxter, J., and Brown, J., concurred.
BROWN, J., Concurring and Dissenting.I join in Justice Chin’s concurring and dissenting opinion. Of necessity, his opinion accepts the existing terms of the debate and argues—persuasively in my view—the City of Glendale’s drug testing plan could be sustained under the current standards enunciated by the United States Supreme Court. Of course, the alternate view is equally sustainable since the balancing test articulated in recent precedents is “inherently, and doubtless intentionally, imprecise.” (Willner v. Thornburgh (D.C. Cir. 1991) 928 F.2d 1185, 1187 [289 App.D.C. 93] (hereafter Willner).) Thus, I write separately to point out why the debate is neither compelling nor useful in deciding the narrow question of the constitutionality of noticed, mandatory drug testing.
Under the standard fashioned in Treasury Employees v. Von Raab (1989) 489 U.S. 656, 665 [103 L.Ed.2d 685, 701-702, 109 S.Ct. 1384], mandatory *934drug testing is an unreasonable search prohibited by the Fourth Amendment unless it is required by “special governmental needs, beyond the normal need for law enforcement,” and those needs outweigh the employee’s privacy interest. “The Court did not purport to list all of the factors that should be weighed or to identify which factors should be considered more weighty than others.” (Willner, supra, 928 F.2d at p. 1187.) This is not a standard; it is a conundrum. As with other attempts to apply amorphous balancing tests, multitiered levels of scrutiny, and abstract evidentiary exclusions, the results can only be described as whimsical. (Comment, Weighing the Factors of Drug Testing for Fourth Amendment Balancing (1992) 60 Geo. Wash. L.Rev. 1151, 1152-1153, 1168-1196; Comment, Government Drug Testing: A Question of Reasonableness (1990) 43 Vand. L.Rev. 1343, 1369-1372, 1375-1376.)
In this case and others like it involving the interests of government solely as an employer and the surrender of a constitutional right as a condition of obtaining a mere benefit or “privilege,” I would argue for a return to an earlier view, pungently expressed by Justice Holmes while a member of the Supreme Judicial Court of Massachusetts: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” (McAuliffe v. Mayor, etc., of City of New Bedford (1892) 155 Mass. 216 [29 N.E. 517].)
I realize, of course, that for many years Holmes’s view has been out of fashion. His epigrammatic flair in McAuliffe, and later in Frost Trucking Co. v. R. R. Com. (1926) 271 U.S. 583, 601 [70 L.Ed. 1101, 1108, 46 S.Ct. 605, 47 A.L.R. 457] (“acts in other circumstances unlawful may be justified by the purpose for which they are done” (dis. opn. of Holmes, J., joined by Brandeis, J.)), may even have helped provoke the reevaluation that led to the shibboleth of “unconstitutional conditions” and, for a time, the near disappearance from American constitutional law of the so-called “rights-privilege distinction.” (See, e.g., Speiser v. Randall (1958) 357 U.S. 513, 518-519 [2 L.Ed.2d 1460,1468, 78 S.Ct. 1332]; Sherbertw. Verner (1963) 374 U.S. 398, 404 [10 L.Ed.2d 965, 970-971, 83 S.Ct. 1790]; Pickering v. Board of Education (1968) 391 U.S. 563, 568 [20 L.Ed.2d 811, 817, 88 S.Ct. 1731]; Perry v. Sindermann (1972) 408 U.S. 593, 596-598 [33 L.Ed.2d 570, 576-578, 92 S.Ct. 2694].)
If a doctrine of unconstitutional conditions does exist, its purview is quite limited. There are certainly circumstances in which we should view any claim of consent with a jaundiced eye. For example, when the government runs the only game in town (the ability to hold public office), makes a citizen an offer that cannot be refused (your money or your life), conditions *935the exercise of one constitutional right on the relinquishment of another compatible constitutional right (freedom to practice religion in exchange for silence in the political process), or seeks to impose a condition having no conceivable connection to the underlying activity, the degree of coercion inherent in such a bargain may vitiate any claim of voluntariness. (See generally, Easterbrook, Insider Trading, Secret Agents, Evidentiary Privileges, and the Production of Information (1981) Sup. Ct. Rev. 309, 348-349.) However, to the extent the doctrine of unconstitutional conditions purports to hold that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold the benefit altogether, it seems more a figment of academic imagination than a reality.
As Judge Easterbrook has pointed out, “[constitutional rights are waived every day. People incriminate themselves, surrender their rights to counsel, waive a bundle of rights as part of plea bargains, and sign contracts surrendering a right to trial through arbitration or confession of judgment clauses. . . . Congress routinely makes states offers they cannot refuse, states take federal money and surrender rights to autonomous government. ... In all of these cases, people sell their constitutional rights in ways that, they believe, make them better off. They prefer the benefits of the agreement to the exercise of their rights.” (Easterbrook, Insider Trading, Secret Agents, Evidentiary Privileges, and the Production of Information, supra, Sup. Ct. Rev. at pp. 346-347, fns. omitted.)
Here, applicants and promotional candidates know the job offer or promotional opportunity is conditioned on consent to a medical examination which includes drug testing. They are notified of the date and time of the test, the conditions under which it will be conducted, and the consequences of failure. Each applicant for employment or promotion signs a waiver before the procedure begins. Neither job applicants nor employees risk the loss of anything they already possess. Employees who test positive are not fired; they are simply ineligible for promotion. The information remains confidential and no referral is made to law enforcement.
A search of a person is constitutional if consent is freely and voluntarily given. (See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854, 858, 93 S.Ct. 2041].) Under the City of Glendale’s testing program, an applicant’s or employee’s obligation to undergo testing for current drug use “can be triggered only by her own decision to alter her [employment] status.” (Harmon v. Thornburgh (D.C. Cir. 1989) 878 F.2d 484, 489 [278 App.D.C. 382], italics added.)
Because incumbent employees seeking promotion have consented to undergo drug testing as part of a medical examination after notice of the testing *936requirement, this case is analogous to the airport search cases of a generation ago. There the federal courts concluded that advance notice to commercial air travelers of mandatory preboarding searches of all enplaning passengers survived constitutional scrutiny. As a matter of constitutional law, “a prospective passenger has a choice: he may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave. If he chooses to proceed, that choice, whether viewed as a relinquishment of an option to leave or an election to submit to the search, is essentially a ‘consent,’ granting the government a license to do what it would otherwise be barred from doing by the Fourth Amendment.” (United States v. Davis (9th Cir. 1973) 482 F.2d 893, 913 (maj. opn. by Browning, J.); see also United States v. Edwards (2d Cir. 1974) 498 F.2d 496 (maj. opn. by Friendly, J.); cf. Willner, supra, 928 F.2d at p. 1190 [“No one is compelled to seek a job at the Department of Justice. [Citation.] If individuals view drug testing as an indignity to be avoided, they need only refrain from applying.”].)
In the same spirit, federal courts have held a union may consent to drug testing and that employees are generally bound by the agreement. (Bolden v. Southeastern Pennsylvania Transp. Auth. (3d Cir. 1991) 953 F.2d 807, 827-829 [to the best of our knowledge no court has held the right to be free from drug testing is one which cannot be negotiated away]; Utility Workers of America v. Southern Cal. Edison (9th Cir. 1988) 852 F.2d 1083, 1086 [same]; see American Postal Workers Union v. U.S. Postal (1989) 871 F.2d 556, 567 [where court rejected a Fourth Amendment challenge to searches of employee lockers because the searches were authorized by the collective bargaining agreement and waivers signed by employees].)
As some members of the high court have recognized, on occasion, the government’s interest as an employer is distinct from its interests as sovereign, and context is often critical. (See, e.g., Snepp v. United States (1980) 444 U.S. 507, 509, fn. 3 [62 L.Ed.2d 704, 708, 100 S.Ct. 763] [“[T]he CIA [may] protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment.”]; Buckley v. Valeo (1976) 424 U.S. 1, 290-291 [46 L.Ed.2d 659, 841-842, 96 S.Ct. 612] [“The limits imposed by the First and Fourteenth Amendments on governmental action may vary in their stringency depending on the capacity in which the government is acting. . . . [^D . . . [U . . . [C]ases which deal with the government as employer or proprietor are not fungible with those which deal with the government as a lawmaker enacting criminal statutes applying to the population generally.”] (conc. and dis. opn. of Rehnquist, J.); Healy v. James (1972) 408 U.S. 169, 203 [33 L.Ed.2d 266, 292, 92 S.Ct. 2338] [“The government as employer or *937school administrator may impose upon employees and students reasonable regulations that would be impermissible if imposed by the government upon all citizens.”] (conc. opn. of Rehnquist, J.); and see Wells & Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law (1980) 66 Va. L.Rev. 1073, 1113-1121.)
The direct relationship of drug use to job performance can hardly be doubted. Private firms competing in the same labor market as the government routinely insist on comparable forms of drug testing. They obviously believe drug use is rationally related to job performance. I see nothing in the circumstances of this case to suggest that the city’s interest in providing an environment for its employees free of illegal drugs and their effects on the workplace is in principle any different from the same interest of private employers. For that reason, I am skeptical that the government employer should be required to select and promote its work force hampered by constraints intended primarily to limit its penal interests. Indeed, I question whether government as an employer should be required to operate under constraints that are any different from those affecting the private employers with whom it must compete in the labor market.
The dissenters’ concern about the relentless erosion of the private spheres of human conduct is certainly legitimate. The hegemony of the data bank has left us little privacy to protect and scant ability to control how, when, or to whom personal information is disclosed. It is this control—the right to prevent disruption of routine, invasion of property rights, embarrassment, and to protect the privacy of information—that the Fourth Amendment and state privacy provisions seek to protect. (See Posner, Rethinking the Fourth Amendment (1981) Sup. Ct. Rev. 49, 51, 52.) And it is precisely this security which is undermined by endlessly malleable balancing tests. In that respect, more autonomy is sacrificed on the altar of arbitrary ad hoc determinations than will ever be lost through consensual searches of public employees.
Thus, were we writing on a clean slate, I would opt for a clear, concise rule. I would conclude that applicants and incumbent Glendale city employees who seek promotion after notice of the city’s drug testing requirement have consented to drug testing, a consent that is constitutionally valid and avoids Fourth Amendment concerns. Where the underlying interest is not constitutionally protected, “the greater power to completely ban” a given activity “necessarily includes the lesser power” to impose conditions on its exercise. (Posadas de Puerto Rico Assoc. v. Tourism Co. (1986) 478 U.S. 328, 345-346 [92 L.Ed.2d 266, 283, 106 S.Ct. 2968].) Moreover, since drug use and its effects are closely related or “germane” to job performance, no specter of an unconstitutional condition arises. (Nollan v. California Coastal *938Comm’n (1987) 483 U.S. 825, 835-837 [97 L.Ed.2d 677, 688-689, 107 S.Ct. 3141]; Sullivan, Unconstitutional Conditions (1988) 102 Harv. L.Rev. 1415, 1458-1468; Epstein, Unconstitutional Conditions, State Power and the Limits of Consent (1988) 102 Harv. L.Rev. 4, 65, 67-73; cf. FCC v. League of Women Voters of California (1984) 468 U.S. 364, 408 [82 L.Ed.2d 278, 309-310, 104 S.Ct. 3106] (dis. opn. of Rehnquist, J., joined by Burger, C. J. and White, J.).)
Simply put, Glendale’s drug testing policy gives applicants and promotional candidates a clear choice: they may consent to a limited invasion of their privacy or they may decline to take the test and forego the employment or the opportunity for promotion.
These tradeoffs are part of the cost of being a public servant. Thus, federal employees cannot run political campaigns; FBI agents do not go on strike. State employees are required to reveal detailed financial information knowing it will be publicly disseminated. Such choices are neither easy nor comfortable.
But that is life. Sometimes beauty is fierce; love is tough; and freedom is painful.
The lead opinion also asserts that it is “well documented” that drug abuse will lead to “increased safety problems and potential liability to third parties.” (Lead opn., ante, at p. 882.) I do not doubt that employees performing certain types of work (for example, tree trimmers using chain saws) endanger their own safety and that of others when they work while under the influence of alcohol or drugs; urinalysis testing of applicants for such positions is certainly permissible to determine substance abuse. (See Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. 602,628 [103 L.Ed.2d at p. 667].) By contrast, the duties performed by a file clerk ordinarily pose no special hazard. I am aware of no evidence that generalized safety or security concerns justify across-the-board testing of all applicants for government employment, regardless of the nature of the positions for which they apply.