Full opinion text
OPINION AND ORDER ROBERT P. PATTERSON, Jr., District Judge. This is a consolidation of challenges to the urine testing procedures utilized by the New York City Transit Authority (the TA) since January 1, 1984 to test for use of marijuana. The plaintiffs seek both monetary and equitable relief. During the trial of this ease, the Court approved the parties’ agreement to bifurcate the issues of liability and remedy. This Opinion represents only the Court’s findings of fact and conclusions of law on liability. Background Defendant TA is a public benefit corporation created by New York Public Authorities Law to operate New York City’s public transit facilities, including subway and bus systems. The individual defendants are the TA President, the TA Chairperson, the TA Medical Director and the TA’s Assistant Vice President for Labor Relations. The evidence does not show, and the plaintiffs have not contended in their trial briefs, proposed findings of fact and proposed conclusions of law, that the individual defendants ever violated the Constitution without reasonable grounds for believing their actions were constitutional. Accordingly, the individual defendants have qualified immunity and cannot be held liable in their personal capacity. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (qualified immunity when officials do not act maliciously and without reasonable grounds for believing their actions were constitutional); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). The plaintiffs consist of representatives of three subclasses certified pursuant to Federal Rule of Civil Procedure 23, as well as the individual plaintiff John Fa, and plaintiff-intervenor James Salazar. All of the plaintiffs were either permanent or probationary employees or were applicants, who have been or will be denied employment or a promotion, suspended, required to undergo drug counseling, terminated or otherwise penalized solely because of a marijuana positive urinalysis test. Burka v. New York City Transit Authority, 110 F.R.D. 595, 600 (S.D.N.Y.1986) (Goettel, J.). The three certified subclasses, as described by Judge Goettel, are: (A) those TA employees who deny drug use but who have been or in the future will be subjected to adverse employment action based on drug-positive test results obtained pursuant to a periodic physical examination, a promotion application or an on-duty incident (“Subclass A”); (B) those TA employees who admit to off-duty drug use and who have been or in the future will be subjected to adverse employment action due to testing connected with the above activities (“Subclass B”); (C) those applicants for positions with the TA who deny drug use and who have been or in the future will be denied employment based on drug-positive test results (“Subclass C”). Burka v. New York City Transit Authority, 121 F.R.D. 215, 216 (S.D.N.Y.1988). These subclasses may assume a greater significance in the determination of remedies, but at this point it is important to note that the subclasses, including plaintiff-in-tervenor Salazar and plaintiff Fa, neither include nor represent either (1) applicants who admit to drug use, (2) employees tested solely due to supervisor’s suspicion, or (3) employees tested because a prior test revealed evidence of drug use. Id. at 216 n. 2. Plaintiffs represent employees from whom urine has been taken in four circumstances since January 1, 1984: (1) following an extended absence or suspension, (2) as part of certain periodic physical examinations, (3) as part of a physical examination for promotion, (4) when directed by a supervisor or manager following an “incident” that occurs while on-duty. In addition, the plaintiffs represent applicants who deny drug use and tested positive for marijuana since October 1984. All plaintiffs present parallel challenges and the claims were consolidated for purposes of trial. On February 1, 1988, Judge Goettel granted summary judgment for defendants on all issues except for the due process claims of employees, and the privacy and unreasonable search and seizure claims. Burka v. New York City Transit Authority, 680 F.Supp. 590, 612 (S.D.N.Y. 1988). Those surviving claims are based upon clauses in both the federal and New York State Constitutions. The federal constitutional challenges are brought pursuant to 42 U.S.C. § 1983. A non-jury trial took place from April 14, 1989 through May 24, 1989. The parties submitted proposed findings of fact and conclusions of law on September 15, 1989. Evidence was only presented at trial of the TA’s testing procedures through April 1987. The parties have each subsequently submitted generalized descriptions of the post-April 1987 testing procedures; however, these descriptions do not constitute an adequate evidentiary basis for a determination of constitutionality. Accordingly, this Opinion only determines the lawfulness of TA drug testing from January 1, 1984 to April 1987. In October 1989, the lawyers for the certified subclasses submitted for the Court’s approval a consent order to settle the due process “accuracy of testing” claims of those tested from January 1984 through September 1984 by the Laboratory for Chromatography. After a public hearing and several submissions from the parties, the Court issued an opinion approving the agreement subject to certain modifications. See Opinion and Order of January 22, 1990. The parties agreed to the modifications and the consent order was finally approved on February 1, 1990. On March 29, 1990, the Court held a conference at which it requested additional submissions addressing the costs and effectiveness of alternative, on-site drug testing procedures. On May 10, 1990, the parties submitted a joint stipulation of facts, expert affidavits and legal memoranda discussing the availability of on-site drug testing procedures and whether the implementation of on-site testing was constitutionally mandated. Discussion This Court is not asked to rule on whether there is a substantive due process right to ingest marijuana. Plaintiffs do not directly challenge the current unlawful status of marijuana use under state and federal law. Nor do plaintiffs call into question the rights of the TA either to discipline an employee who ingests marijuana during his spare time or to refuse to hire an applicant who does the same. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 1398, 103 L.Ed.2d 685 (1989) (Scalia, J., dissenting) (government “employees can constitutionally be denied promotion, or even be dismissed, for a single instance of unlawful drug use, at home or at work”). Instead, these actions are directed at the procedures utilized by the TA to determine whether plaintiffs were contemporaneously using marijuana. In particular, plaintiffs argue that the TA conducted drug testing in a manner which (1) constituted unlawful searches and seizures and (2) resulted in deprivations of interests in property and liberty without due process of law. The search and seizure claims focus on the reasonableness of the decision to take urine, while the due process claims focus on whether adequate procedural safeguards accompanied the determination that, based on the urine sample, one is a user of marijuana. For purposes of determining plaintiffs’ rights to sue under Section 1983, as well as the due process clauses and the search and seizure clauses of the state and federal constitutions, the acts of the TA are attributable to a local government entity. See West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (“under color of state law” requirement is conterminous with state action doctrine of Fourteenth Amendment). New York statute authorizes the TA to perform “an essential governmental function.” New York Public Authorities Law §§ 1201,1207-g. Accordingly, the TA acts as a local arm of government and “under color of” state law. See, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 587, 99 S.Ct. 1355, 1366, 59 L.Ed.2d 587 (1979) (TA is “a governmental unit” for purposes of Fourteenth Amendment analysis); Kissinger v. New York City Transit Authority, 274 F.Supp. 438, 441 (S.D.N.Y.1967) (TA decisions are “state action”); see also Subway-Surface Supervisors Association v. New York City Transit Authority, 44 N.Y.2d 101, 404 N.Y.S.2d 323, 329, 375 N.E.2d 384 (1978). The findings of constitutional infringements are limited to those acts constituting a component of patterns of practice, customs or policies of the TA. Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). I. Search & Seizure Plaintiffs argue that the TA took urine from employees and applicants in an unconstitutional manner. The Fourth Amendment’s prohibition against unreasonable searches and seizures applies to searches and seizures authorized by the TA, an arm of the state and municipal governments. Skinner v. Railway Labor Executives Association, 489 U.S. 602, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989). Under Supreme Court precedent, the TA’s taking of urine from a public employee or an applicant constitutes a search and “must meet the reasonableness requirement of the Fourth Amendment.” Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1412-13; see also O’Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714 (1987) (plurality opinion) (Fourth Amendment protects government employees from unreasonable searches). The reasonableness of a search depends upon a balance of individual privacy interests and legitimate government interests. Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1414. A. Warrant Requirement Whether the TA may dispense with the Fourth Amendment’s warrant requirement depends on a balance of the individual interests and the government interests at stake in having a warrant requirement. 1. Individual Interests The Fourth Amendment provides: [N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A warrant provides the individual with the protection of “the detached scrutiny of a neutral magistrate” to ensure that “such intrusions are not the random or arbitrary acts of government agents.” Skinner, 109 S.Ct. at 1415. A warrant not only restrains the government from engaging in unreasonable practices, but also functions as a manifestation which provides individuals with assurance that “the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope.” Von Raab, 109 S.Ct. at 1391; Skinner 109 S.Ct. at 1415. Individual interests protected by the warrant requirement are reduced when the search is (1) preceded by notice, and (2) administered subject to “minimal discretion.” Skinner, 109 S.Ct. at 1415-16. The TA has made efforts to provide notice to employees of the drug testing rules. The testimony shows that those efforts did not meet the standard of “doubtless” success in notifying all employees of future drug testing, achieved by the government in Skinner and Von Raab, cases in which the Supreme Court held that a warrant was not required. Compare Tr. 34, 124, 191, 258, 336, 364-68 (notified of laboratory testing of urine, but scope of the test unspecified); Ex. 106 at 34, ¶ 8(e); Ex. 107 at 47-50, with Skinner, 109 S.Ct. at 1415 (rules on urinalysis “doubtless are well known to covered employees”); Von Raab, 109 S.Ct. at 1391. A review of the “minimal discretion” found present in Von Raab and Skinner is useful before determining whether the TA plan satisfies this second individual interest protection factor. In Skinner, urine could only be taken after there had been a “major train accident,” an “impact accident,” a fatality to an on-duty railroad employee, a reasonable suspicion by a supervisor after a “reportable accident or incident,” certain rule violations, or suspicion of impairment by two supervisors — one of whom had training in detecting drug use. 109 S.Ct. at 1408-09. Regulations defined the terms “major accident” and “impact accident” with a limited list of specified events. Id. In Von Raab, the Customs Service tested individuals after deeming them initially qualified and before final selection. 109 S.Ct. at 1388. This suit challenges the taking of urine under four circumstances. See supra text accompanying note 2. The only circumstance which lacks the minimal discretion present in the Supreme Court cases is testing after an “incident,” because that term is not defined by a narrow list of circumstances. Nevertheless, the use of the term “incident” does not grant perilously broad authority to order a drug test at any time for an arbitrary reason and the evidence does not show that the TA has used its discretion in an arbitrary manner. See Dent v. New York City Transit Authority, N.Y.L.J., May 10, 1990, at 28 (N.Y.Sup.Ct. May 7, 1990) (“proviso that there be an ‘unusual incident’ before the employee submits to a drug test serves to prevent unbridled discretion on the part of the TA”). 2. Government Interests in Preventing Drug Users From Engaging in Safety-Sensitive Tasks The government interest prong dictates against a warrant requirement when “the intrusion serves special governmental needs, beyond the normal need for law enforcement.” Von Raab, 109 S.Ct. at 1390-91. The government’s interest in preventing drug users from “engaging] in safety-sensitive tasks” in public transportation presents one such “special need.” Skinner, 109 S.Ct. at 1414-15. Before determining whether TA jobs involve safety-sensitive tasks, it is first necessary to address plaintiffs’ two threshold arguments that there could not be any safety interests related to the TA’s urinalysis program. First, plaintiffs contend that marijuana does not cause impairment of performance. The expert testimony on this issue varied from one extreme to the other. Defendants’ expert, Dr. Jack H. Mendel-son, testified that marijuana can have an effect lasting for days during which the user may experience delusions and serious interference with motor coordination. On the other extreme, Dr. Reese Jones testified, for the plaintiffs, that marijuana only has an effect for three hours, during which “significant performance impairment” does not necessarily result. Tr. at 2635. Dr. Jones’ conclusions rest upon a theory that “the nature of the way the human system works [is] that you have alternative pathways to get things done ... if we are impaired in system A we can throw in system B and still function.” Tr. at 2635. The studies supplied to the Court by defendants and upon which Dr. Jones was cross-examined, Tr. at 2671-74, show that these “alternative pathways” do not function as well for some as for others in all situations. The evidence shows that marijuana use results in impairment of one’s motor functions for at least a few hours and if an employee smoked a marijuana cigarette during a break or before work then he or she would more than likely be impaired during working hours. Plaintiffs’ second argument is that urinalysis does not identify on-duty impairment and therefore there can be no connection between the TA’s testing and safety concerns. Even though urinalysis is not necessarily determinative of impairment from marijuana while on-duty, the Von Raab decision approved urine testing as a means of preventing those who carry fire arms from being impaired while on-duty. See Jones v. Jenkins, 878 F.2d 1476, 1477 (D.C.Cir.1989) (per curiam). The TA’s urine testing program is also a means for prevention of on-duty impairment from marijuana use. Plaintiff’s argue that supervisors properly trained in detecting marijuana impairment would be a less intrusive and equally effective alternative. While supervisors could in certain instances screen employees and thus be able to prevent an impaired worker from causing an injury, the weight of the evidence that supervision would be an adequate means for identifying and deterring impairment was less than the preponderance. Tr. 1647-49. See also Fowler v. New York City Department of Sanitation, 704 F.Supp. 1264, 1275 (S.D.N.Y.1989) (citing expert testimony and Mulholland v. Department of Army, 660 F.Supp. 1565, 1569 (E.D.Va. 1987)). There may be means more effective than urinalysis with which to supplement supervision in order to identify and to prevent on-duty impairment, but the selection of a cost-effective alternative is not a choice for the judiciary. Accordingly, urinalysis is found to be a suitable means for addressing safety concerns and the issue remaining is whether the TA possesses surpassing safety interests, as regards each of its occupational categories. A “safety-sensitive task” is “fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Skinner, 109 S.Ct. at 1419; Von Raab, 109 S.Ct. at 1393. Chief Judge Wald, writing for a panel of the D.C. Circuit after the Skinner and Von Raab decisions, elaborated that a safety-sensitive position is not one in which the threat to the public is “through a chain of ensuing circumstances” or an “indirect risk.” Harmon v. Thornburgh, 878 F.2d 484, 491 (D.C.Cir.1989), cert. denied sub nom., Bell v. Thornburgh, — U.S. -, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). The Harmon decision further explained: The public safety rationale adopted in Von Raab and Skinner focused on the immediacy of the threat. The point was that a single slip-up by a gun-carrying agent or a train engineer may have irremediable consequences; the employee himself will have no chance to recognize and rectify his mistake, nor will other government personnel have an opportunity to intervene before the harm occurs. Id. (emphasis in original). In Skinner, the plaintiffs did not dispute that the railroad employees covered by the drug testing program were engaged in safety-sensitive tasks. In this case, plaintiffs only concede that five of the positions covered by the TA’s drug testing program are safety-sensitive: train operator, bus operator, tower operator, train conductor and conductor-flagman. Inattentiveness by workers with those five titles clearly can result directly in serious harm to either the public or other workmen. The Court finds, based on the evidence presented at trial, that several other positions also entail safety-sensitive tasks and that many others do not, as follows. a. Stations and Revenue Departments Employees in the Stations and Revenue Departments include the booth clerks, who sell tokens; the cleaners, who are responsible for cleaning and maintaining the station and track walls; the collection agents; the turnstile maintainers; and the stock-handlers. The evidence reveals that the booth clerks, cleaners and the collection agents are in safety-sensitive positions. Booth clerks are charged with the responsibility of reporting all emergency situations in the station via a special communications line to the TA command center. Tr. at 2458. In addition, when a human being or debris falls on to the trackbed, the booth clerk must immediately contact the train-master and then cut power on the third rail. Crime in the subways is an everyday occurrence about which booth clerks are expected to be vigilant. Furthermore in recent years, derelicts and defenseless homeless people have taken to living in the stations. New York City subway stations present bizarre and unpredictable dangers to the public and a booth clerk alert to such developments enhances directly the public’s safety. The cleaners are in safety-sensitive positions because they perform the duties of a clerk during the clerk’s break, Tr. at 2466, and because they must drive the mobile wash unit trucks. Tr. at 541. Like a gun, a motor vehicle on a public motorway can instantly become a deadly instrument if misused. The collection agents are in safety-sensitive positions for the simple reason that they carry guns and must be prepared to make life or death decisions. See Von Raab, 109 S.Ct. at 1388, 1393. Although the collection agents rarely if ever use their fire arms, the fact that they are entrusted with deadly force and authorized to use that force in the presence of others renders their position safety-sensitive. Id. at 1392 (surpassing safety interest in those required to “carry” firearms); see also Caruso v. Ward, 72 N.Y.2d 432, 534 N.Y.S.2d 142, 147, 530 N.E.2d 850 (1988); but see Hartness v. Bush, 712 F.Supp. 986, 992 (D.D.C.1989) (testing employees who carry firearms but who rarely use them may be “found to be overkill”). Employees with other titles in the Stations and Revenue Departments are certainly not in risk free positions. Turnstile maintainers and stockhandlers must operate equipment with care. However, the evidence shows that an error on the part of these other personnel would have no direct effect on the safety of either the public or other workmen. Harmon v. Thornburgh, 878 F.2d at 491. b. Car Equipment Department Trains and small forklifts operated by the Car Equipment Department neither carry members of the public, operate in the midst of the public nor threaten seriously the safety of other workers. Painters and certain cleaners in the Car Equipment Department lack even an attenuated connection to safety. There is an indirect connection between public safety and the repairs done by many Car Equipment personnel. Based on the evidence, however, that connection does not rise to the level of safety-sensitivity because a mistake by a Car Equipment worker will not have the direct and immediate disastrous consequences required by Harmon v. Thornburgh, supra. Uncontro-verted testimony shows that after employees have completed repairs and before the repaired train is put back into usage, a different employee or team of employees re-inspects the train. Tr. 466-67. In addition, Car Equipment laborers work under the scrutiny of supervisors, forepersons, and co-workers. After repairs on a particularly critical part like the air brake and certain electrical systems, the train is actually turned on and tested by a team of workers before the train is exposed to public use again. The road car inspector is the one Car Equipment Department position in which a connection between a mistake and public safety is not attenuated. The road car inspector is the only repair-person who performs his duties outside the repair barns and shops. He works in the system where the trains are running. His job is he’s on there on call anytime there’s a call from the motorman or trainmaster or dispatcher that there’s some problems with a train in service_ He probably has more responsibilities than any other maintainer. Tr. 499-500. This emergency repair-person/inspector has to make on the spot decisions about the proper way to fix a train, which is in service and possibly filled with passengers. The adequacy of the road ear inspector’s service directly affects the safety of the public. His or her work is necessarily immediately subject to neither supervision, testing nor re-inspection. Frequently it is not until later in the day that a supervisor will evaluate the road inspector’s decisions. As a result of the direct effect of a road car inspector’s work on the public, the position is safety-sensitive. c. Track Division The Track Division of the Track and Structures Department contains track walkers, track workers, track equipment maintainers, chauffeur-specialists, crane operators, railroad track cleaners and power distribution maintainers. The track walkers inspect all of the tracks “for defects such as broken rail, improper gauging, cracks, base wear,” Tr. 2375, as well as “lose spikes, [and] rail joints.” Tr. 571. The track walker performs these inspections on his own with only spot checks by a supervisor. After inspecting miles of track, the walker writes a report and the necessary repairs are made in response to the report. The track walker’s ability to make an accurate report is critical to the safety of the subway tracks. The evidence shows that if a track walker leaves a defect out of his report, there is little chance that the defect will be noticed until either the occurrence of an accident or the next time the tracks are inspected. Since a track walker’s report is important to the safety of the transport system and not necessarily double-checked by another employee, the track walker position is safety-sensitive. Track workers are the ones who actually fix the track. The work is performed exclusively in groups. Tr. at 2374. In addition to the co-workers, there also usually is a foreperson overseeing a track worker’s performance. Due to the degree of supervision of his or her work by co-workers and forepersons, the track worker is not a safety-sensitive title. Track equipment maintainers are mechanics who repair the various tools used by the track maintenance crew. They work on their own and their repair work is not inspected and observed to the extent of a repair-person working in the Car Equipment Department’s repair station. Often they go out alone and repair machines in the tracks and then return. The equipment they work on is often potentially dangerous equipment like chainsaws and a tamping machine — a powerful device that lifts the railroad ties. The safety of other TA workers depends upon a track equipment maintainer’s care and in light of the minimal supervision over this position, it is found to be safety-sensitive. A track cleaner cleans out debris from the track area. They work in groups and their work is checked by a foreperson. The track cleaners have a role in the safety of the subway. They help prevent fires and dispose of infectious waste. Nevertheless, track cleaners are not in a safety-sensitive position because their work is checked and there is only an indirect connection between a negligent cleaning job and disastrous consequences. The power distribution maintainers are responsible for maintaining the electrified third rail. They always work either in a group or with a foreperson. Although the job sounds dangerous, the evidence shows no relation between the attentiveness of a power distribution maintainer and the safety of others. The only ramification of negligent power distribution is that the worker may hurt himself or not repair the third rail efficiently and the foreperson’s supervision should prevent such occurrences. The evidence reveals nothing about a potential public danger for which the power distribution maintainer could be responsible. Accordingly, these well-supervised employees are not in safety-sensitive positions. The chauffeur specialist and crane operator are responsible for driving and operating “cranes, cherry pickers, bulldozers and tractor trailers." Tr. at 2382. Testimony reveals that these large and powerful vehicles are often operated at street level and in the presence of others. Motor vehicles in public can instantly become a deadly instrument if misused and therefore these operators are found to be in safety-sensitive positions. d. Structure Division and Line Equipment Division The Structure Division of the Track and Structures Department contains carpenters, masons, iron workers, tinsmiths, plumbers, sign painters, general painters and maintainers of heating and air conditioning. The Line Equipment Division of the Track and Structures Department contains maintainers of lighting, elevators, escalators, ventilation and hydraulic systems. The work of these divisions is done either in groups or in a shop environment. There is also “on-site supervision.” Tr. 2387. Evidence reveals that these workers are essential to the smooth operation of the subway system and that negligence on their part can be part of a chain of events which ends in injury. However, there is only evidence that a lapse of attention by one category of workers in these divisions could lead directly to a disastrous consequence. That category is the workers charged with maintaining the TA’s heating plants. The heating units are complex and the pressure must be checked hourly. If a worker does not check the high pressure heating plant properly an explosion, endangering the public and other workers, can result. Accordingly, the Structure and Line Equipment Divisions do not contain safety-sensitive positions, except for those workers charged with checking and maintaining the heating plant. e. Electrical Power Department The Electrical Power Department is primarily responsible for supplying the 600 volts of electricity in the third rail. All members of this department working directly with the power lines do not work alone and are supervised at a ratio of approximately eleven workers to one supervisor. The repairs are subject to testing, inspection or the approval of a foreperson. However, certain acts may result in disasters despite the safeguards of supervision and testing. When removing a high voltage circuit breaker to conduct routine maintenance, the power maintainer must be able to judge exactly when the circuit breaker is in a proper condition for removal or else an explosion can result. The Superintendent of Electrical Power testified that there are also other occasions when a power maintainer’s misjudgment could cause an explosion. The various workers directly involved with maintenance of the power, as opposed to those supervisors in administrative positions, are in safety-sensitive positions because of the imminence of a dangerous explosion if they make a mistake. The Signals Division is also within the Electrical Department. The signal equipment constitutes “the traffic lights of the subway system.” Tr. 2491. This system is critical to the safe operation of the subways. It not only notifies train operators of when they must stop and slow down, but it actually causes trains to brake automatically to prevent accidents. Signal maintainers and their helpers repair, test and maintain the signal equipment. They work in pairs and the quality of their work is only spot-checked or checked weekly by a maintenance supervisor. If a signal maintainer does not notice a problem with a signal then it appears likely that it can go undetected until an accident occurs. It is especially important that the worker maintain the complex “fail-safe mode” of the signal system, which causes a “stop” signal whenever any of the electrical circuits malfunction. In addition, the helper provides “basic flagging protection” by telling the maintainer when a train is coming. Tr. 2494. The deputy supervisor and other superintendents are responsible for assessing the information produced by a computer system and then allocating the maintenance workers to different track areas. In sum, the Signals Division is responsible for a delicate aspect of the subway system which is integral to the system’s safety. The different positions each constitute a safeguard against signal failure. The improper performance of any of these tasks could lead to signal problems which is the direct cause of many train accidents. Although the number of safeguards and the degree of supervision is admirable, there is little immediate double-checking of performance. Accordingly, the jobs in this division are all safety-sensitive. The final subdivision of the Electrical Department is the Communications Division. The Communications Division’s telephone maintainers, electronic maintainers and helpers are responsible for installing, repairing and maintaining the various alarm, public address and emergency communication systems located throughout the transit system. Other transit employees, such as booth clerks, and passengers depend upon these systems for safety from violent crime. Often repair work is done in the field, rather than in the shop. Although the electronic maintainers work primarily in the shop they also must go out to the subway cars to install new radios. When repair work is done in the field, the only way a supervisor can know whether many of the repairs or maintenance have been completed improperly is by receiving a complaint that a communications apparatus is operating in a faulty manner. Due to the importance of the communications equipment to the safety of the transit system and the lack of supervision in the field, the telephone maintainers, electronic maintainers, and their helpers are in safety-sensitive positions. Telephone maintainer also is a safety-sensitive title because it entails driving trucks. Tr. 2278. However, the power electronic maintainers are not included because they work in a supervised laboratory environment where all equipment is tested before it leaves, f. Surface Department The Surface Department operates and maintains the buses. The Department consists of dispatchers, supervisors, Group A bus maintainers, Group B bus maintainers, cleaners, maintainers’ helpers, Group C mechanical maintainers, and bus operators— which has already been stipulated to be a safety-sensitive job title. Cleaners have various custodial duties. Crew dispatchers assign bus operators their work. Yard dispatchers assign the operator to a specific bus. None of those jobs entail safety-senstive tasks. The repair work performed by the bus maintenance staff is essential to the safety of the buses. However, evidence shows that the repair system operates in a manner which prevents a momentary lapse of attention from directly causing disastrous consequences. After all maintenance work has been done, the bus must be inspected by a foreperson. The repair work is further checked by a road test after major repairs. Finally, the bus operator conducts a safety test at the beginning of each shift. The conduct of the road test is the only maintenance duty which rises to the level of safety-sensitive. There was testimony that road tests have been conducted on highways and in populated areas. The operation of a bus on these motorways, even though there are no passengers, directly puts the safety of members of the public at risk and therefore all maintainers whose position entails road tests have safety-sensitive jobs. The quality control dispatcher is another Surface Department employee with a safety-sensitive job. This position entails checking that certain essential features of the bus, such as lights, are operating. If the quality control dispatcher overlooks an essential safety feature, then the public will be exposed to a dangerous bus. Accordingly, it is a safety-sensitive position, g. Rapid Transit Operations Plaintiffs have stipulated that the train conductors, train operators and motor operators of Rapid Transit Operations are in safety-sensitive positions. The motor instructor, however, is not in a safety-sensitive position. His duty of surveying and then evaluating train crew performance is a safety-related task; but a mistake on his part lacks the direct and immediate consequences of a safety-sensitive position, like that of the worker actually operating the train. In sum, based on the evidence presented at trial, the following positions are found to be safety-sensitive: train operators, bus operators, train conductors, conductor-flagmen, and tower operators; the Station and Revenue Department’s booth clerks, station cleaners and collection agents; the Car Equipment Department’s road car inspectors; the Track Division’s track walkers, track equipment maintainers, chauffeur specialists, and crane operators; the Structure and Line Equipment Divisions’ heating plant workers; the Electrical Power Department’s workers directly involved with maintenance of the power; the Signals Division’s employees; the Communications Divisions’ telephone maintainers, electronic maintainers and helpers; and the Surface Department’s quality control dispatchers and employees who drive buses in public. 3. Weighing the Individual and Government Interests The TA possesses a “special need” to take urine from those employees in safety-sensitive positions. Skinner, 109 S.Ct. at 1414. This “special need” to conduct a search outweighs the private interests in having the protection of a warrant. Accordingly, it did not violate the Fourth Amendment for the TA to fail to obtain a warrant before taking urine from employees in safety-sensitive positions and applicants for safety-sensitive positions. A more delicate balancing of government and private interests is necessary to resolve whether a warrant is required before the TA may take urine in relation to non-safety-sensitive positions. Although the TA did not have a “special need” to search these employees, the Fourth Amendment does not entirely negate the legitimacy of the TA’s interest in disciplining employees with non-safety-sensitive jobs who have engaged in unlawful drug use prior to or at work. Von Raab, 109 S.Ct. at 1398 (Scalia, J. dissenting). The TA’s interest in taking urine from transit workers in non-safety-sensitive positions did not rise to the level of a “special need,” but it rose to the level of a legitimate interest connected to the efficient operation of the workplace. In O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 1500-01, 94 L.Ed.2d 714 (1987), and United States v. Collins, 349 F.2d 863 (2d Cir.1965), cert. denied, 383 U.S. 960, 86 S.Ct. 1228, 16 L.Ed.2d 303 (1966), warrant-less searches by public employers of employees’ possessions were upheld because of recognition of the government’s “work-related purpose,” 107 S.Ct. at 1500, and an employer’s need “to supervise and investigate the performance of” its employees. 349 F.2d at 868.) Ortega and Collins are not directly on point because the searches were of an employee’s property located in public and in work areas, where an individual’s interests are less significant than in this case in which the TA is searching one’s body. Allowing the TA to dispense with the warrant requirement is also made difficult because of the deficiencies of the TA’s notice procedures. However, requiring a warrant before a “work-related,” as opposed to a law enforcement-related, search is a substantial burden on the government. Moreover, the individual liberty interests at stake in a work-related urine taking, although significant, are less than those at stake when criminal law enforcement is at issue. Since the TA conducted its urine testing for a work-related purpose and in a manner that was not subject to unbridled discretion, the Court finds that the TA’s interest in taking urine from a non-safety-sensitive employee outweighed those private interests which would require a warrant requirement. Accordingly, the TA did not violate the Fourth Amendment by refraining from obtaining a warrant before taking urine from employees in non-safety-sensitive positions. B. Determining the Appropriate Objective Standards for the Search Conducted The next stage in this Fourth Amendment inquiry is to determine whether the proper standard was followed in the decision to conduct the search. In making this determination, the reasonableness test ‘requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against “an objective standard,” whether this be probable cause or a less stringent test.’ Security and Law Enforcement Employees v. Carey, 737 F.2d 187, 203-04 (2d Cir.1984) (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). Courts have applied three standards to determine the reasonableness of a search: (1) probable cause, (2) reasonable suspicion, also known as “ ‘some quantum of individualized suspicion,’ ” Skinner, 109 S.Ct. at 1417 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976)); Terry v. Ohio, 392 U.S. 1, 21 & n. 18, 88 S.Ct. 1868, 1879 & n. 18, 20 L.Ed.2d 889 (1968); Carey, 737 F.2d at 204-205 (reasonable suspicion standard); see also Von Raab, 109 S.Ct. at 1393 (“founded suspicion” is less than probable cause), and (3) reasonable in the absence of reasonable, individualized suspicion, or what this Opinion will call “bare reasonableness.” See Skinner, 109 S.Ct. at 1417 (applying reasonableness standard without an individualized suspicion requirement) and Von Raab 109 S.Ct. at 1392 (same). The standard chosen for this Fourth Amendment analysis is based on the standard applied by courts when analogous private and government interests have been at stake. See Carey, 737 F.2d at 204. In Von Raab and Skinner, the Supreme Court weighed the government-employer interest in preventing drug use in safety-sensitive positions against the intrusion upon personal privacy by a taking of urine. Accordingly, it is proper to apply the same bare reasonableness standard utilized in Von Raab and Skinner, to determine whether the TA acted in a constitutional manner when taking urine in relation to safety-sensitive positions. The taking of urine in relation to non-safety-sensitive positions requires a higher standard. The Von Raab and Skinner opinions emphasize the serious intrusion entailed by “requiring] employees to perform an excretory function traditionally shielded by great privacy.” Skinner, 109 S.Ct. at 1418. “ ‘There are few activities in our society more personal or private than the passing of urine.’ ” Skinner, 109 S.Ct. at 1413 (quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir.1987), aff’d in part and vacated in part, — U.S.-, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)). When safety-sensitive work is not at issue, then an individual’s expectations that such privacy will not be infringed is higher than was the case in Skinner and Von Raab. Skinner, 109 S.Ct. at 1418 (safety-sensitivity of position diminishes employees’ expectations of privacy); Von Raab, 109 S.Ct. at 1394. Just as the absence of safety-sensitivity increases the privacy interests, it also reduces the government’s interests by eliminating the presence of a “special need.” Accordingly, when safety-sensitive work is not involved, the balance of private and government interests mandates a standard higher than bare reasonableness to satisfy the Fourth Amendment. The highest standard is probable cause. The probable cause standard “ ‘is peculiarly related to criminal investigations,’ ” where significant losses of liberty are at stake. Von Raab, 109 S.Ct. at 1391 (citations omitted). The evidence shows that enforcement of the criminal code is not a goal of the TA’s drug testing program. The TA’s primary goal is its understandable interest in ensuring its workforce is free from the inefficiencies caused by use of the unlawful drug, marijuana. Since the search is pursuant to a legitimate, prophylactic, work-related measure, probable cause is too high a standard. Von Raab, 109 S.Ct. at 1392. The Supreme Court has described "individualized suspicion” as the minimum standard “usually” applied when special government needs are absent. Skinner, 109 S.Ct. at 1417; New Jersey v. T.L.O., 469 U.S. 325, 342 n. 8, 105 S.Ct. 733, 743 n. 8, 83 L.Ed.2d 720 (1985). The Second Circuit has applied this standard in its Fourth Amendment scrutiny of strip searches of corrections officers. Carey, 737 F.2d at 204-05. Although taking of urine may be deemed slightly less intrusive than a strip search, the state prison authorities conducting the searches in Carey possessed special safety interests, which were entitled to deference by the court and which diminished the expectations of privacy of the corrections officers. Id. at 205. Thus, Carey is a sufficiently analogous balance of government and private interests. The Court is also persuaded by the application of the reasonable suspicion standard by two district courts scrutinizing urine testing of federal employees in non-sensitive positions. See National Treasury Employees Union v. Lyng, 706 F.Supp. 934, 949-50 (D.D.C.1988) (Department of Agriculture employees with non-sensitive jobs); Bangert v. Hodel, 705 F.Supp. 643, 645, 650-51 (D.D.C.1989) (Interior Department employees with non-sensitive jobs); see also Hartness, 712 F.Supp. at 992 (Lyng and Bangert v. Hodel are “entitled to great respect” after Skinner and Von Raab). Accordingly, the individualized suspicion standard, also referred to as the reasonable suspicion standard, is the appropriate standard for assessing the constitutionality of the taking of urine from TA employees in non-safety-sensitive positions. C. Application of the Reasonable, Individualized Suspicion Standard to the Taking of Urine in relation to Non-Safety-Sensitive Positions The individualized suspicion standard requires the TA to be able to justify taking urine for a drug test by ‘point[ing] to specific objective facts and rational inferences that they are entitled to draw from those facts in light of their experience.’ Inchoate, unspecified suspicions do not meet this definition. Carey, 737 F.2d at 205 (quoting Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982)). See also Hartness, 712 F.Supp. at 993 (“reasonable, articulable, and individualized suspicion of use of drugs on-duty or off-duty causing a reasonable suspicion that a specific employee may be under the influence of drugs while on-duty”); Bangert v. Hodel, 705 F.Supp. at 650 (approving limited list of concrete, objective factors from the definition of “reasonable suspicion” promulgated in the drug testing plan of the Department of Interior). Reasonable suspicion “must be directed to a specific person.” Carey, 737 F.2d at 205; see also Bangert v. Hodel, 705 F.Supp. at 653 (suspicion under the Fourth Amendment is “personal” and “suspicion of entire classes ... [is] abhorrent to the American Constitution”). Courts have only found evidence of generalized drug use amongst a group to be pertinent to a Fourth Amendment inquiry when the positions are safety-sensitive. See Skinner, 109 S.Ct. at 1407-08, 1419; Jones v. McKenzie, 833 F.2d 335, 340 (D.C.Cir.1987), vacated sub nom., Jenkins v. Jones, — U.S.-, 109 S.Ct. 1633, 104 L.Ed.2d 149 aff’d and amended, 878 F.2d 1476 (D.C.Cir.1989) (per curiam); Hartness, 712 F.Supp. at 990-92. The TA argues that its testing satisfies a reasonable suspicion standard based upon nationwide statistics of drug use and the evidence that there are drug users on the TA workforce. While these contentions might raise a generalized suspicion, they are insufficient to satisfy a reasonable or individualized suspicion standard. Courts have flatly rejected the nationwide drug use argument as inadequate to constitute reasonable suspicion of an individual under the Fourth Amendment. See, e.g., Bangert v. Hodel, 705 F.Supp. at 653 & n. 36 (citing Lyng, 706 F.Supp. at 945 n. 40; Harmon v. Meese, 690 F.Supp. 65, 68 (D.D.C.1988) [, aff’d sub nom., Harmon v. Thornburgh, 878 F.2d 484 (D.D.C.1989), cert. denied sub nom., Bell v. Thornburgh, — U.S. -, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990)]; Hansen v. Turnage, No. 88-30261, slip op. at 9, 1988 WL 147881 (N.D. Cal. July 28, 1988) (“evidence of a nationwide drug problem cannot be generalized to subject innocent and hardworking federal employees to urinalysis”)). The “drug use amongst the workforce” argument might conceivably be enough to satisfy an individualized suspicion standard if there were, in the TA workforce, “strong evidence of a veritable ‘drug culture’.” Jones v. McKenzie, 833 F.2d at 340. The evidence shows that in the years 1984 through 1986, approximately two percent of the employees and six percent of the applicants tested positive solely for marijuana. Only a “small number” tested positive for marijuana and other drugs. Ex. 106 at 41,11 22. These statistics are insufficient to impute a reasonable suspicion of marijuana use to either all workers or all applicants. Drug testing related to non-safety-sensitive positions can only satisfy the reasonable suspicion standard, if the circumstances which the TA considered sufficient to trigger marijuana testing did, in fact, constitute grounds for reasonable suspicion. The TA has brought forth no evidence to show that three of the four occasions upon which plaintiffs were tested for marijuana use are grounds for suspecting drug use: an employee’s return to work after an extended absence or suspension, an application for a promotion or to become a TA employee, and a periodic physical. A more detailed examination is necessary to determine whether reasonable suspicion is satisfied by testing after an on-duty incident or accident. The TA defines an incident as "any unusual occurrence such an accident, altercation, passenger’s complaint, or the observation of bizarre behavior.” Ex. 106 at 40, 1115. An accident is “any unforeseeable event that results in injury to a person, vehicle or property.” Id. It is reasonable to suspect that an employee impaired as the result of using marijuana may have been the cause of an incident or accident. Ideally, TA authorities would resort to drug tests to determine whether marijuana use was the incident’s cause only after having conducted a lengthy investigation which reveals a reasonable suspicion that certain employees were using drugs and caused the incident. However, whether impairment from marijuana use was a possible cause can only be verified if a drug test is conducted shortly after the accident or incident, because the drug metabolites may not remain in the body for a long period and can be reduced by passing urine. Therefore, it is reasonable to conduct marijuana testing of all employees who might have been the cause of the incident or accident shortly after the event has occurred. In light of the circumstances, a reasonable suspicion of drug use arises from the rational inference of a causal connection between an employee’s impairment and an incident or accident. The only reservation the Court has about the constitutionality of post-incident testing is the vagueness of the terminology. Evidence, however, does not show that the TA has exploited the definition of “incident” in order to justify arbitrary drug testing. See Dent v. New York City Transit Authority, supra. In hindsight, certain drug tests may not have been necessary because the employee actually bore no responsibility for the incident. However, the record does not show that at the time of the testing the TA did not have a reasonable suspicion that there may have been a causal connection between the incident and drug use by the employee subjected to testing. Only one knowing in advance the outcome of an investigation into the cause of the incident could make a more rational determination of whether a reasonable suspicion of drug use exists. In connection with the proceedings on remedies, to be hereinafter scheduled, the Court will consider proposals for a more limited set of circumstances raising a reasonable suspicion of marijuana use, which would be a more precise way of assuring that there are no aberrations from compliance with Fourth Amendment standards for testing those in non-safety-sensitive positions. See, e.g., Bangert v. Hodel, 705 F.Supp. at 650-51 (rejecting “open-ended ‘among other things’ clause” in list of circumstances which constitute reasonable suspicion). In sum, the marijuana testing related to non-safety-sensitive job titles fails to meet the appropriate Fourth Amendment standard of reasonable suspicion, except when the test is conducted after an incident or accident. Even though the post-incident testing is after circumstances which create a reasonable suspicion, such testing still may violate the Fourth Amendment if “significant safeguards” do not accompany the urinalyses. Bangert v. Hodel, 705 F.Supp. at 650. If the search — even when conducted upon reasonable suspicion — does not satisfy the standards of minimal intrusiveness, enunciated and discussed in the next section, then the private interests may outweigh the government interests. D. Application of the ‘Bare Reasonableness’ Standard The degree of Fourth Amendment scrutiny appropriate for testing related to safety-sensitive tasks is set forth in Von Raab and Skinner. The Supreme Court examined urinalyses conducted when there were no grounds for individualized suspicion in Von Raab and urinalyses conducted after an accident, which may have given rise to an individualized suspicion, in Skinner. Since the standard of scrutiny was “bare reasonableness,” the presence of individualized suspicion as a predicate to the testing in Skinner was irrelevant to the holding. As Judge Oberdorfer has observed, Skinner and Von Raab both only required a “substantial generalized suspicion” of drug use among workers as a condition precedent to testing when surpassing safety interests were at stake. Hartness, 712 F.Supp. at 991. In this case, the Court takes notice of the high levels of marijuana use in New York City and the nation, Tr. at 1651, 1672, 2651; as well as the results of the tests (positive results were received by two per cent of employees and six per cent of applicants) and concludes that there is grounds for a generalized suspicion that there are marijuana users among TA workers and applicants. See Von Raab, 109 S.Ct. at 1395 (“little reason to believe that American workplaces are immune from this pervasive social problem”); but see, id. at 1400 (Sealia, J., dissenting) (condition precedent to testing must be “well demonstrated evils in that field, with well known or well demonstrated consequences”). Satisfaction of the “bare reasonableness” standard, as applied in Skinner and Von Raab, also requires minimal interference with privacy interests so that the government’s interest in safety outweighs the privacy interests. Determining the results of that balance is difficult in this case because in several significant respects the TA has interfered with expectations of privacy to a greater extent than did the government in Skinner and Von Raab. The first privacy factor is notice of the test. Von Raab, 109 S.Ct. at 1394 n. 2, 1396 n. 4. There was evidence that a number of employees were not on notice that they would be subject to marijuana testing by urinalysis. Compare Tr. 34, 124, 191, 258, 336, 364-68 (notified of laboratory testing of urine, but scope of the test unspecified); Ex. 106 at 34, ¶ 8(e); Ex. 107 at 47-50, with Skinner, 109 S.Ct. at 1415 (occasions when drug testing urinalysis will occur “doubtless are well known to covered employees”); Von Raab, 109 S.Ct. at 1391 (“every employee” is aware of the drug testing procedures). TA employees are from a full range of educational and cultural backgrounds and the TA should have adjusted its notice procedures to assure that all employees comprehended not only that urine would be taken for analysis, but also that it would be tested specifically for marijuana, as well as other drugs whose mere possession constitutes criminality. An inexpensive vehicle for providing such notice would have been to precede each taking of urine with the individual receiving an oral explanation and signing a consent form, stating in plain English, and in other languages if necessary: that the urine would be tested for marijuana; that there is possibility of a false positive; what the possible consequences of a positive result are; and what means are available for challenging the veracity of a positive result. Another difference is that the searches were not conducted in a professional, medical environment which exhibits respect for the individual’s dignity. “[Pjersonnel unrelated to the railroad employer” collected the samples in Skinner. 109 S.Ct. at 1418. That was not the case in the TA program. Moreover, the TA refrained from utilizing the less intrusive, yet inexpensive techniques employed by the federal government in Skinner and Von Raab in which the monitor did not have to observe directly the act of urination. Skinner, 109 S.Ct. at 1418; Von Raab, 109 S.Ct. at 1394 n. 2; see also Skinner, 109 S.Ct. at 1428 (Marshall, J., dissenting). There was also evidence that in TA testing in 1984 and 1985 there was often neither a urinal for overflow nor running water for washing. Furthermore, the TA’s governmental interest in taking urine is diminished because the legitimate end of the tests — detecting only drug users — may not have been met because the tests did not produce results of undisputed validity. As the second part of the Opinion finds, the practices of the TA and the laboratory did not result in an indisputably accurate indication that the individual was a drug user. Thus, the government’s interest in taking urine here is less than in Skinner and Von Raab, where the government’s interest in taking the urine was enhanced because the ensuing (EMIT plus GC/MS) tests were stipulated as producing highly accurate results. Von Raab, 109 S.Ct. at 1394 n. 2. Precedent is unclear on what effect these aberrations from the factual circumstances present in Skinner and Von Raab should have on the evaluation of the reasonableness of the search. The D.C.Circuit recently observed that the use of the Supreme Court drug testing cases as a tool for determining whether the balance of private and government interests satisfies the Fourth Amendment “presents a delicate task.” Harmon, 878 F.2d at 488. The [Supreme] Court did not ... indicate whether it deemed the ease [Von Raab ] a close one, in the sense that minor variations in the facts would have tipped the balance in the other direction. Nor did it indicate which (if any) of the relevant factors would be essential to a constitutional testing plan. Id. at 488-89 (emphasis in original). A close reading of the Supreme Court cases persuades the Court that the balance as to safety-sensitive tasks tips in favor of the government. Not only does safety-sensitivity create a special need for the government, but the safety-sensitivity of a task also diminishes the workers’ and applicants’ expectations of privacy. Since safety is the overwhelming factor in both the government and privacy portion of the balance, the Court finds that the balance tips in favor of the government when safety-sensitive tasks are at issue. However, the Court notes that the Fourth Amendment jurisprudence on drug testing is still evolving and it would be a wise precaution for the TA to avoid departures from the “minimal invasiveness” of Skinner and Von Raab in the future. The Court also must determine whether “bare reasonableness” was satisfied with regard to the procedures for taking urine samples from non-safety-sensitive employees upon reasonable suspicion—i.e., post-incident testing of non-safety-sensitive employees. The procedural infringements upon the privacy expectations outlined above are more serious in the case of non-safety-sensitive workers because the safety factor is not present. In light of this absence of a surpassing safety interest, the infringement on private interests are more serious than the government interests at stake. The evidence presented at trial does not show that any members of the class received exceptional treatment which complied with the intrusiveness factors of Skinner and Von Raab. Accordingly, the Court finds that the TA’s procedures for taking of urine from non-safety-sensitive employees after an incident violated the Fourth Amendment. Although post-incident testing satisfied the reasonable suspicion standard, the procedures followed by the TA did not satisfy “bare reasonableness” and therefore violated the Fourth Amendment. The TA’s procedures for obtaining test samples with respect to safety-sensitive tasks are upheld as constitutional under the “bare reasonableness” standard. E. State Constitutional Claim Plaintiffs argue that the search and seizure clause of the New York State Constitution, Article I, § 12, is more stringent than the equivalent clause in the Fourth Amendment. Although that may be true in certain contexts, a survey of the leading New York cases reveals that the federal and state search and seizure analyses of urine taking for the purpose of drug testing are the same. In the seminal