                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1464
                             Filed January 9, 2020


TYLER DIX, JASON CATTELL, JIMMY McCANN, and JULIE ELLER,
     Plaintiffs-Appellees/Cross-Appellants,

vs.

CASEY'S GENERAL STORES, INC. and CASEY'S MARKETING COMPANY,
     Defendants-Appellants/Cross-Appellees.
________________________________________________________________


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

Judge.



      An employer appeals the district court’s grant of relief to former employees

who challenged its drug-testing program under Iowa Code section 730.5. Former

employees cross appeal other aspects of the ruling. AFFIRMED ON APPEAL;

AFFIRMED ON CROSS-APPEAL.



      Ann H. Kendell of Brown, Winick, Graves, Gross, Baskerville &

Schoenebaum, P.L.C., Des Moines, for appellants.

      David Albrecht of Fielder Law Firm, PLC, Johnston, and Matthew M. Sahag

of Dickey & Campbell Law Firm, PLC, Des Moines, for appellees.



      Heard by Doyle, P.J., and Tabor and Schumacher, JJ.
                                          2


TABOR, Judge.

       This case involves employee drug testing conducted by Casey’s General

Stores, Inc. and Casey’s Marketing Company (Casey’s) under Iowa Code

section 730.5 (2016). Former employees Jason Cattell, Tyler Dix, Julie Eller, and

Jimmy McCann challenged the termination of their employment after three of them

tested positive and one was unable to give a urine sample.

       Following a trial to the bench, the district court found Casey’s improperly

included Eller and McCann in the pool of safety-sensitive workers from which it

selected employees to test. The court awarded Eller back and front pay and

awarded McCann back pay. Casey’s appeals those awards to Eller and McCann

as inequitable and asserts statutory immunity. McCann cross appeals seeking

front pay. By contrast, the court found Casey’s properly included Cattell and Dix

in the testing pool. But the court held Casey’s violated the statute by failing to

provide those employees with a specific list of drugs to be tested and failing to

allow them to provide information relevant to testing. Still, the court did not grant

Cattell and Dix relief, finding they did not prove those statutory violations resulted

in adverse employment actions.       Cattell and Dix cross appeal that decision.

Finding no reversible error, we affirm on both the appeal and cross-appeal issues.

       I.     Statutory Requirements and Background Facts

       In January 2016, Casey’s notified employees at its Ankeny warehouse

about a new drug-testing policy authorized under Iowa Code section 730.5. That

statute allows private employers to conduct drug and alcohol testing in compliance

with detailed safeguards set out in the code and consistent with the employer’s
                                           3


own written policy with proper notice to employees. The employer may test on an

unannounced and periodic basis. Iowa Code § 730.5(1)(i).1

       The employer may elect to test employees selected from certain pools:

(1)“[t]he entire employee population at a particular work site,” (2) “[t]he entire full-

time active employee population at a particular work site,” or (3) “[a]ll employees

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

position and who are scheduled to be at work at the time testing is conducted.” Id.

§ 730.5(8)(a). For unannounced drug testing, employees must be selected “based

on a neutral and objective selection process” and “by an entity independent from

the employer” using a “computer-based random number generator.”                      Id.

§ 730.5(1)(l).   The procedure should ensure “each member of the employee

population subject to testing has an equal chance of selection for initial testing.”

Id. The testing “shall be carried out within the terms of a written policy,” and such

policy must be “provided to every employee subject to testing” and “available for

review by employees.” Id. § 730.5(9)(a)(1).

       The statute allows employers to take disciplinary action against employees

who test positive or refuse to test including termination of their employment. Id.

§ 730.5(10)(a)(3). And the statute gives “an aggrieved employee” a civil cause of

action against “[a] person who violates this section.” Id. § 730.5(15)(a). But the

statute affords an employer immunity from a cause of action if the employer acts

in good faith following a positive test if the employer “has established a policy and


1 Another provision of the statute permits testing when there is “reasonable
suspicion” that the employee “is using or has used alcohol or other drugs” including
when the employee “has caused an accident while at work.” Iowa Code
§ 730.5(1)(i), (8)(c). That provision is not at issue in this case.
                                         4

initiated a testing program” in accordance with the safeguards in the statute. Id.

§ 730.5(11), (11)(a).

       Against that statutory backdrop, Casey’s unveiled its new testing policy.

Cattell, Dix, Eller, and McCann all received the policy. Casey’s planned to perform

drug tests on a periodic basis without advanced notice to employees. The policy

stated Casey’s would select employees for testing at “random” from “a pool of

employees in a safety-sensitive position who are scheduled to be at work at the

time testing is conducted.” The policy also stated, “All employees have an equal

chance of being selected.” Casey’s advised it would terminate any employee who

gave a confirmed positive test, refused to take a test, or failed to provide an

adequate sample.

       Casey’s contracted with an outside laboratory, ARCpoint, to select the

employees and administer the tests. Casey’s also contracted with an outside lab

to conduct the medical review mandated under section 730.5(7)(h) (requiring a

medical review officer to interpret any confirmed positive test results to ensure any

information provided by the individual is considered before reporting the results to

the employer).

       In April 2016, Dix, Cattell, McCann, and Eller all worked at Casey’s Ankeny

warehouse. Casey’s designated all warehouse employees as holding safety-

sensitive positions. When those employees received notice of the new policy, they

signed an acknowledgment of their understanding. In the warehouse, Dix and

Cattell worked on heavy-duty tasks such as building pallets and operating forklifts

to load trucks. McCann and Eller performed light-duty assignments in the tobacco
                                         5


returns area. That area was cordoned off within the warehouse by a chain-link

fence, earning the structure its nickname—“the cage.”

       Casey’s administered its first unannounced test on April 6, 2016. The day

before, Casey’s gave ARCpoint a roster of the 184 employees scheduled to work

at the warehouse. Casey’s asked ARCpoint to select 90% of the names for

testing.2 To select employees to be tested, ARCpoint used an internet-based

random number generator, called Research Randomizer.3 As it turned out, due to

absences and other circumstances, Casey’s ended up testing all employees at

work on April 6. The four plaintiffs were on the original list of selected employees.

       On testing day, Casey’s Vice President Jay Blair gathered all employees in

the warehouse, announced the testing, and informed them, “If any of you are taking

a prescription, do not discuss it with us. You should proceed to the test and, if

applicable, the Medical Review Officer will contact you at a later date to

substantiate the prescription.” He also said, “If any of you wish to refuse to test,

you are free to leave at any time and it is regarded as a resignation.”

       Casey’s moved employees into “holding areas” so they could not leave or

falsify tests.   From there, Casey’s escorted the employees in pairs to the


2  Internal emails showed management would have preferred to test all the
employees but felt they could not justify 100% selection as “random.” Testimony
from human resources supervisor shows Casey’s intended to follow its policy to
test only employees in safety-sensitive positions.
3 Research Randomizer acknowledges,

        [a]s with most computer-based “random number generators,” this
        program is best described as a “pseudo-random number generator”
        because the numbers are generated by use of a complex algorithm
        (seeded by the computer’s clock) that gives the appearance of
        randomness.
About, Research Randomizer, http://www.randomizer.org/about/ (last visited Jan.
5, 2019).
                                            6


warehouse restrooms where they entered individual stalls and provided urine

specimens. Casey’s and ARCpoint employees were present in the restrooms

outside the stalls and collected the specimens for testing. ARCpoint employees

conducted initial tests at the warehouse. Employees tested either “negative” or

“nonnegative.” Casey’s informed employees who had “nonnegative” tests that

they were suspended. Later, employees with “nonnegative” initial tests received

by certified letters the results of confirmatory tests specifying the drugs detected.

       Cattell, Dix, and McCann gave their samples as directed.            Cattell and

McCann both tested positive for marijuana and amphetamine; Dix tested positive

for marijuana. Casey’s ultimately fired all three. Eller did not provide a specimen

sufficient for testing on the first try. Casey’s provided her water to drink, but she

was still unable to provide a sufficient sample on the second try. At that point, Eller

chose to leave, and Casey’s deemed her action to be a voluntary resignation.

       Cattell, Dix, Eller, and McCann filed civil claims against Casey’s under

section 730.5(15). The district court consolidated their actions. After extensive

pretrial litigation, the parties tried the claims to the bench.

       II.    District Court Decision

       At trial, the employees alleged Casey’s violated the statute in numerous

ways. Their threshold allegation dealt with the selection of the employees to be

tested. The employees then claimed even if Casey’s properly selected them, the

employer violated the statute in carrying out the drug test in six ways: (1) failing to

pursue periodic testing; (2) failing to identify the warehouse as a collection site;

(3) failing to properly train its employees in administering the testing; (4) failing to

provide adequate privacy at the testing site; (5) failing to give employees an
                                          7


adequate opportunity to provide relevant information; and (6) failing to give

employees a specific list of the drugs being tested.

       Resolving the threshold issue, the district court concluded Casey’s method

for selecting employees for testing substantially complied with the statute with one

exception—the court found Casey’s improperly designated McCann and Eller, as

being in “safety-sensitive positions.” Because Casey’s should not have tested Eller

and McCann in the first instance, the district court granted them relief.

       On the other claims related to selection of employees for testing, the district

court found Casey’s substantially complied with the statute. On the remaining six

claims regarding testing procedures, the district court agreed with Cattell and Dix

on two points: (1) Casey’s did not give employees adequate opportunity to provide

additional information relevant to the testing and (2) Casey’s did not give the

employees a list of the drugs being tested. The court found both defects violated

the statute. But the court also found Cattell and Dix did not prove they suffered an

adverse employment action as a result of these defects and were not, therefore,

“aggrieved” under the statute. For that reason, the court found they could not

obtain relief.

       Casey’s appeals the district court’s grant of relief to Eller and McCann. Eller

and McCann defend the court’s ruling on their claims and, joining Cattell and Dix,

cross-appeal the denial of their remaining claims.

       III.      Scope of Review/Compliance Standard

       The parties differ on the scope of review. To settle their dispute, we look

first to the language of the statute.
                                          8


      The civil remedies subsection states:

              a. This section may be enforced through a civil action.
              (1) A person who violates this section or who aids in the
      violation of this section is liable to an aggrieved employee or
      prospective employee for affirmative relief including reinstatement or
      hiring, with or without back pay, or any other equitable relief as the
      court deems appropriate including attorney fees and court costs.

Iowa Code § 730.5(15). The statute also provides for injunctive relief. See id.

§ 730.5(15)(a)(2).

      Casey’s seizes on the availability of equitable relief to argue the district court

sat in equity and thus our review would be de novo. See Iowa R. App. P. 6.907.

On the other side, the employees note we review questions of statutory

construction for correction of errors at law. See Ryan v. Heritage Trails Assocs.,

Inc., 745 N.W.2d 724, 728 (Iowa 2008). Our supreme court reviewed for correction

of legal error in its most recent cases under section 730.5. See Ferguson v. Exide

Tech., Inc., ___ N.W.2d ___, ___, 2019 WL 6794312, at *2 (Iowa 2019); Sims v.

NCI Holding Corp., 759 N.W.2d 333, 337 (Iowa 2009); but see Skipton v. S & J

Tube, Inc., No. 11-1902, 2012 WL 3860446, at *4–5 (Iowa Ct. App. Sept. 6, 2012)

(reviewing de novo because case was tried in equity with no evidentiary

objections). In Sims, the parties submitted the case by stipulated facts. 759

N.W.2d at 337.4 Following Sims, we will review for correction of errors at law.

      We will affirm the district court’s findings of fact if they are supported by

substantial evidence. Tow v. Truck Country of Iowa, 695 N.W.2d 36, 38 (Iowa

2005). Evidence is substantial if a reasonable mind would accept the evidence as


4This court has also reviewed for legal error in a recent case. Whitman v. Casey’s
Gen. Stores, Inc., No. 18-1320, 2019 WL 4678172, at *2 (Iowa Ct. App. Sept. 25,
2019) (further review pending).
                                         9

adequate to reach the same findings. Frontier Props. Corp. v. Swanberg, 488

N.W.2d 146, 147 (Iowa 1992).

      The parties also spar over the level of compliance necessary to satisfy

section 730.5.     The employees argue Casey’s must meet the statutory

requirements with strict compliance. They acknowledge Sims held substantial

compliance with the notice requirements was adequate. See 759 N.W.2d at 338.

But they view Sims as a narrow exception. We disagree. Substantial compliance

means satisfying the reasonable objectives of a statute as to essential matters. Id.

Our courts have adopted that level of compliance for other important matters. See,

e.g., State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002) (guilty plea colloquy);

Nedved v. Welch, 585 N.W.2d 238, 240 (Iowa 1998) (disclosure of expert

witnesses); Iowa Dep’t of Human Servs. ex rel. Greenhaw v. Stewart, 579 N.W.2d

321, 323 (Iowa 1998) (notices of appeal); Brutsche v. Coon Rapids Cmty. Sch.

Dist., 255 N.W.2d 337, 342 (Iowa 1977) (notice of an election). We believe

substantial compliance applies to all mandates in section 730.5.

      IV.    Analysis

      Casey’s challenges the finding Eller and McCann were not safety-sensitive

employees subject to drug testing and their awards. In doing so, Casey’s invokes

the employer immunity clause. See Iowa Code § 730.5(11)(a).

      In response, the employees argue because Casey’s failed to comply with

the provisions of 730.5, the employer both lost immunity and is liable for the

adverse employment decisions it made regarding all the plaintiffs. McCann also

argues he should have been awarded front pay like Eller.
                                          10


       A. Employer Immunity Clause

       We start by interpreting the immunity clause. It provides:

              Employer immunity. A cause of action shall not arise
       against an employer who has established a policy and initiated a
       testing program in accordance with the testing and policy safeguards
       provided for under this section, for any of the following:
              a. Testing or taking action based on the results of a positive
       drug or alcohol test result, indicating the presence of drugs or
       alcohol, in good faith,[5] or on the refusal of an employee or
       prospective employee to submit to a drug or alcohol test.

Iowa Code § 730.5(11). Casey’s gleans three requirements from this provision:

(1) establish a policy in accordance with the statutory safeguards; (2) initiate a

testing program, also in compliance with the statute; and (3) take action based on

a positive drug test in good faith. Casey’s believes it satisfied all three conditions.

And therefore, it claims immunity from liability for testing Dix, Cattell, McCann and

Eller and from taking actions based on positive test results for Dix, Cattell, and

McCann and on the test refusal by Eller.

       The district court reasoned an employer who violates section 730.5 “is no

longer immune from liability.” Thus the court rejected Casey’s immunity claim

because the employer violated the statute by placing Eller and McCann in the

safety-sensitive employees’ pool and by not providing a list of drugs to be tested

or giving employees the opportunity to provide relevant information.              That

reasoning leads us on a somewhat circular path. An employer who violates the

statute cannot benefit from the immunity, but an employer who does not violate the




5The statute defines “good faith” as “reasonable reliance on facts, or that which is
held out to be factual, without the intent to be deceived, and without reckless,
malicious, or negligent disregard for the truth.” Iowa Code § 730.5(1)(f).
                                         11


statute has no need for immunity because an employee would have no viable

claim. We strive to construe the statute to avoid that circularity.

       We begin that quest with the text of the statute. See Gardin v. Long Beach

Mortg. Co., 661 N.W.2d 193, 197 (Iowa 2003). “We do not search beyond the

express terms of a statute when that statute is plain and its meaning is clear.” Id.

We also read a statute as a whole to reach a sensible and logical construction. Id.

When the debate is over a word or phrase, we examine the context in which it is

used. Exceptional Persons, Inc. v. Iowa Dep’t of Human Servs., 878 N.W.2d 247,

251 (Iowa 2016). When the legislature has not defined a term, we look to its

ordinary meaning, sometimes by reference to a dictionary.             See Gardin, 661

N.W.2d at 197. “A statute is ambiguous if reasonable minds could differ or be

uncertain as to the meaning of a statute.” State v. Lopez, 907 N.W.2d 112, 116

(Iowa 2018).

       Although the legislature enacted the byzantine provisions of section 730.5

decades ago, only a handful of appellate cases interpret these drug-testing

measures and only one case interprets the immunity provision. In an unpublished

disposition, a panel of this court determined the immunity provision did not apply

to an employer who violated the statute in the “administration” of the test. See

Skipton, 2012 WL 3860446, at *6. The employer tested Skipton in the absence of

a workplace accident, contrary to its own written policy. Id. We wrote, “We leave

aside the question of whether [the employer’s] written policy was in accordance

with section 730.5 because the evidence clearly shows its testing program was not

administered in accordance with the testing and policy safeguards in that code
                                           12

section.” Id. (emphasis added). Accordingly, we found the employer was not

immune from liability. Id.

       Casey’s takes issue with Skipton, pointing out the immunity provision does

not require drug tests be “administered” in accordance with the statute. We agree

Skipton unnecessarily focused on how the employer “administered” the test rather

than on whether the employer “established” a policy and “initiated” a testing

program that complied with the statutory safeguards.6

       Unbound by that analysis in Skipton, we consider the scope of the employer

immunity clause. We find the employer-immunity provision at section 730.5(11) is

ambiguous when viewed in the context of the entire drug-testing statute. When

statutory language is ambiguous, we seek the “manifest intent of the legislature.”

Stanley v. Fitzgerald, 580 N.W.2d 742, 747 (Iowa 1998). To ascertain that intent,

“we look to the spirit of the statute as well as the words and give it a sensible,

workable, practical, and logical construction.” Id.

       At trial, counsel for Casey’s argued section 730.5(11) showed the intent of

the legislature “to protect employers from liability for the activities of third parties.”

Counsel explained:

       So the legislature puts the burden on the employer to have an
       independent entity do randomization, to have . . . a qualified lab,
       perform the results or the testing of the results as well as medical
       review officer to interpret those results. Those are all things outside
       of the employer’s control, and it is clear that the legislature therefore

6 “Administer” carries a meaning distinct from the statutory terms “establish” and
“initiate.” “Administer” means “to have charge of; manage.” Administer, American
Heritage Dictionary (2nd College Edition 1982). But to “establish” a policy, an
employer would “introduce [it] and put [it] into force.” Establish, American Heritage
Dictionary. And to “initiate” a testing program, an employer would “cause [it] to
begin.” Initiate, American Heritage Dictionary. Thus, the statutory words have a
foundational aspect, while the verb used in Skipton does not.
                                         13


       intended to protect the employer from any issues with regard to that
       by allowing for immunity under this section.

Casey’s returns to this position as its fallback on appeal. The employer contends:

“It is, at a minimum, a reasonable interpretation of the statute that the legislature

wanted to immunize employers acting in good faith from liability arising from third

parties’ statutory violations.”

       We agree it is reasonable to construe section 730.5(11)(a) as inoculating

employers only from suits arising from third-party conduct. Such a construction

resolves the apparent circularity of the immunity clause and is consistent with the

civil remedy at section 730.5(15) being applicable against “[a] person” rather than

exclusively the employer. And even then, the employer would enjoy immunity only

if it established a policy and initiated a testing program in line with statutory

safeguards, and drug tested or took action based on a positive test, in good faith.

       We realize our supreme court has characterized statutory immunities—in

other contexts—as having a broad scope. See Cubit v. Mahaska Cty., 677 N.W.2d

777, 784 (Iowa 2004) (interpreting section 670.4(11) and collecting cases). But

the court has also recognized section 730.5 offers “protections for employees who

are required to submit to drug testing.” Sims, 759 N.W.2d at 338; see Harrison v.

Emp’t Appeal Bd., 659 N.W.2d 581, 588 (Iowa 2003) (“Although the legislature

now allows random workplace drug testing, it does so under severely

circumscribed conditions designed to ensure accurate testing and to protect

employees from unfair and unwarranted discipline.”).         Limiting an aggrieved

employee’s ability to enforce those protections through a broad application of
                                         14


employer immunity would defeat the legislature’s detailed list of safeguards in the

testing and notification process. See Iowa Code § 730.5(6)–(8), (15).

       Under that construction, the employer immunity clause would not insulate

Casey’s from its own actions allegedly in violation of section 730.5. Instead, for

those actions, Casey’s would avoid liability only if it can show substantial

compliance with the statutory requirements for drug-testing in the workplace.

       Having addressed Casey’s employer-immunity claim, we turn to the

violations alleged by the employees, starting with the misclassification of Eller and

McCann as holding safety-sensitive positions.

       B. Safety-Sensitive Position Employees

       The district court found Casey’s violated the statute by including Eller and

McCann in the pool of employees eligible for random testing though they did not

hold safety-sensitive jobs. As discussed above, the statute authorizes employers

to conduct unannounced drug tests of all employees at a particular work site or all

employees who hold a safety-sensitive positions at a particular work site. Iowa

Code § 730.5(8)(a). The statute defines a “safety-sensitive position” to mean “a

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

significant property or environmental damage, including a job with duties that

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

this paragraph.” Id. § 730.5(1)(j). Casey’s policy statement uses virtually identical

language to define a safety-sensitive position. And Casey’s notice to employees

about the policy stated it would only test those in safety-sensitive positions.

       Casey’s now asserts every employee working in the warehouse had a

safety-sensitive position. Casey’s argues, with forklifts “zipping” around and boxes
                                         15


stacked to the ceiling, an accident could result in anyone at the warehouse getting

hurt. That argument did not convince the district court, which emphasized it is not

the warehouse environment but the duties the particular employee discharges that

determine whether the job is safety-sensitive:

       [T]he fact that a light-duty warehouse employee (or a human
       resources employee) is injured in the warehouse when struck by an
       errant forklift driver does not make the former a safety-sensitive
       position. It is the operation of the forklift that makes its driver a
       safety-sensitive position, not the environment in which it is operated.

       Casey’s contends that ruling improperly usurped its business judgment.7

Because the employer would be liable for a warehouse accident, Casey’s reasons

it should determine whether a job is classified as safety-sensitive. Further, Casey’s

urges it was the legislature’s intent that the employer identify safety-sensitive

employees. See Iowa Code § 730.5(9)(f) (“An employee . . . who is designated by

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

pool of safety-sensitive employees subject to drug or alcohol testing . . .).”

       We see no authority for the view that the employer’s designation trumps the

statutory definition, particularly when Casey’s handbook definition tracks the

statute. And section 730.5(9)(f) only admonishes the employer not to multiply a




7 The Iowa Association of Business and Industry, as amicus curiae, also supports
this position and argues the employer’s designations should be given deference
as a “business judgment.” We hear amicus’s warning that courts should not “sit
as super-personnel departments” and review the decisions of a business that is in
a better position to decide what positions are safety-sensitive. Elam v. Regions
Fin. Corp, 601 F.2d 873, 880 (8th Cir. 2010). But the case before us is not a close
one where the employer’s knowledge of the conditions puts it in a better position
to understand the dangers and risks involved. The duties performed by Eller and
McCann clearly did not meet the definition of “safety-sensitive.”
                                          16


particular employee’s chance of being selected for testing by placing that

employee in more than one pool of safety-sensitive employees.

       No Iowa cases interpret “safety-sensitive position” as used in this statute.

But the district court’s logic is bolstered by other authority. For instance, in Skinner

v. Ry Labor Executives’ Ass’n, 489 U.S. 602, 629 (1989), the Supreme Court

justified drug testing without an individualized suspicion as a compelling

government interest noting, “Employees subject to the tests discharge duties

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

can have disastrous consequences.” Significantly, the employee who “discharges

duties” involving those risks is subject to testing.

       Other jurisdictions agree job duties determine the employee’s status. See

Bryant v. City of Monroe, 593 Fed. Appx. 291, 297 (5th Cir. 2014) (finding city’s

interest in drug testing safety-sensitive jobs applied to truck driver because duties

included “driving City vehicles and transporting co-workers, operating heavy

groundskeeping equipment, handling pesticides, and working in high-risk areas

such as highway medians”); Kreig v. Seybold, 427 F. Supp. 2d 842, 854–55 (N.D.

Ind. 2006) (approving drug testing of employee whose job duties included

operating a riding mower on a median or embankment, traveling at high rates of

speed, and using other equipment that “might become ‘lethal’ when ‘operated

negligently’”); Am. Fed’n of Teachers-W. Va., AFL-CIO v. Kanawha Cty. Bd. of

Educ., 592 F. Supp. 2d 883, 902 (S.D. W. Va. 2009) (“For an employee to occupy

a truly safety sensitive position, it is not enough to show that the employee has

some interest or role in safety. Rather, the government must demonstrate that the
                                         17


employee’s position is one that in the ordinary course of its job performance carries

a concrete risk of massive property damage, personal injury or death.”).

        With that legal foundation in mind, we look to the plaintiffs’ job duties.

Without question, Cattell and Dix did heavy-duty work—building inventory pallets

and operating forklifts. So they were properly included in the pool of safety-

sensitive employees. Not so with Eller and McCann, who did light-duty work. They

processed returns of tobacco products in “the cage”—a protected area they

entered and exited through one door. Their duties did not involve any tasks where

an accident could risk loss of life, injury, or significant damage to property or the

environment. Even if the general warehouse environment was dangerous, as

Casey’s maintains, Eller and McCann were protected during the normal course of

their work. Substantial evidence supports the district court’s finding Eller and

McCann were not in safety-sensitive positions and thus not subject to drug testing

under the employer’s policy.

        Casey’s counters it does not matter if it violated its own policy in placing

Eller and McCann in the safety-sensitive pool because the statute authorizes

employers to designate a pool consisting of all the employees at a particular

worksite. See Iowa Code §§ 730.5(8)(a)(1), (2). That option does not help Casey’s

here.    Employers can only test “within the terms of a written policy.”           Id.

§ 730.5(9)(a)(1). Casey’s policy limited testing to “employees in a safety-sensitive

positions.” Casey’s breached its policy, and in turn the statute, by testing Eller and

McCann. The testing resulted in their termination. The district court correctly

found Casey’s is liable to Eller and McCann under section 730.5(11).
                                        18


       Because Eller and McCann properly obtained relief on this basis, we need

not reach their remaining claims. We next turn to the claims by Cattell and Dix that

Casey’s violated numerous other provisions in section 730.5.

       C. Other Alleged Violations

       Employees Cattell and Dix claim Casey’s violated the statute in a dozen

different ways.   For ease of analysis, we group the alleged violations as

deficiencies in the selection process and deficiencies in the testing procedure.

       1.     Selection Process

       The employees allege Casey’s included a handful of people in the testing

pool who were not working that day, excluded a handful of people without

explanation, used only a “pseudo-random” number generator to select which

employees to test, and ended up testing 100% of the employees present. After

considering these allegations, the district court found Casey’s substantially

complied with the statutory requirements surrounding selection. We agree.

       The day before the test, Casey’s provided ARCPoint, an independent and

impartial entity, with a roster of employees scheduled to work in the warehouse.8

ARCPoint made the random selections and provided a list of alternates. It was

reasonable for Casey’s to list employees expected on the job, even if it did not

account for various absences the next day. ARCPoint used a “pseudo-random”

number generator to select employees to test. The purpose of the statutory

requirements at the selection phase is to ensure employees are selected “based


8 We recognize Casey’s may assert immunity under section 730.5(11) for the
actions of ARCPoint or other third-party actors, but we need not decide on that
ground because we find substantial compliance with the selection and testing
requirements in the statute.
                                           19


on a neutral and objective” process and each has “an equal chance of selection

for initial testing.” Id. § 730.5(1)(l).

       This procedure, while not mathematically perfect in distributing the chance

of being selected, assured the reasonable objectives of the statute. See Sims,

759 N.W.2d at 338. In addition, even though Casey’s wanted to test 90% of its

warehouse employees and ended up testing them all, the statute does not

prescribe any particular percentage the employer may select from a properly

drawn pool. Plus, the plaintiffs were all selected in the first draw, so enlarging the

selection percentage did not affect them. Casey’s ensured the selection criteria

were neutral and objective and allowed an independent, neutral entity to make the

random selections using a computer-modeled random-number generator.

Employees had a roughly equal chance of being picked, though some upper

management were excluded and two other workers inadvertently left off the roster.

We find no error in the district court’s conclusion Casey’s substantially complied

with the selection procedure outlined by statute.

       2.      Testing Procedure

       We now examine the alleged deficiencies of the testing procedure. First,

the employees complain Casey’s used the warehouse as a collection site contrary

to the policy requiring referral to “[a] certified collection site such as an occupational

health center, a hospital or otherwise identified clinic or facility to which a

prospective or current employee may be sent for a drug test or alcohol test.” But

the policy makes clear any “confirmatory” testing would occur at a certified site.

The statute does not specify where initial collection or testing must occur. Casey’s

substantially complied with the statute in this respect.
                                          20


       Second, the employees allege Casey’s violated section 730.5(7)(a) (“The

collection of samples shall be performed under sanitary conditions and with regard

for the privacy of the individual . . . ”). The employer took employees to either the

men’s or women’s restrooms where they produced a urine sample inside a stall

with the doors closed. These steps constituted substantial compliance with the

statutory requirement.

       Third, the employees argue Casey’s failed to give supervisory personnel

training required under section 730.5(9)(h). The record shows human resources

supervisor, Marcella Burkheimer, and human resources specialist, Melinda Karl,

both had the requisite hours of training. Burkheimer and Karl supervised the

testing but delegated certain duties to staff.    The staff monitored warehouse

workers waiting to be tested, assisted them in filling out a chain-of-custody form,

and escorted them from the holding area to the restrooms. The district court

concluded “training is not required for employees engaged in the sort of ministerial

tasks delegated” to them on testing day.        We agree.     Casey’s substantially

complied with the training requirement.

       Fourth, the employees argue Casey’s failed to show it tests on a periodic

basis under section 730.5(1)(l). The record here discloses only what happened on

Casey’s first administration of its new testing program. As the district court found,

the employees cannot establish a violation on this limited record.

       The employees’ fifth and sixth claims focus on their right to offer medical

information relevant to the testing, under the following provision.

       An employee or prospective employee shall be provided an
       opportunity to provide any information which may be considered
       relevant to the test, including identification of prescription or
                                          21


       nonprescription drugs currently or recently used, or other relevant
       medical information.    To assist an employee or prospective
       employee in providing the information described in this
       subparagraph, the employer shall provide an employee or
       prospective employee with a list of the drugs to be tested.

Id. § 730.5(7)(c)(2).

       The employees believed Casey’s should have assured their opportunity to

provide relevant information when the employer collected the urine samples, not

later when the employees interacted with the medical review officer. They also

argue Casey’s was not precise enough in disclosing a list of drugs to be tested.

The district court agreed with the employees on these points.9

       We view the record differently. Substantial evidence does not support the

conclusion Casey’s notice was too vague or over-inclusive as to what drugs were

to be tested. The policy warned employees that testing may detect “[a]ny drug or

substance defined as a controlled substance . . . under the Federal Controlled

Substances Act.”        We agree that alone might be inadequate to identify the

particular drugs to be tested. But the policy went on to state, “Said substances

include, but are not necessarily limited to cocaine, phencyclidine (PCP), opiates,

amphetamines, marijuana, MDMA (ecstasy), and 6-acetylmorphines (6-AM).” This

list is sufficiently specific—and includes amphetamine and marijuana, the two

drugs found in the plaintiffs’ samples.




9 Although the district court concluded Casey’s violated the statute in these two
ways, the court declined to grant relief, finding the employees did not establish the
violations “adversely affected their employment” and therefore, they were not
“aggrieved” as that term is used in section 730.5(15). Because we conclude
Casey’s substantially complied with section 730.5(7)(c)(2), we do not reach the
question whether the district court’s reading of “aggrieved” was correct.
                                         22


       We also disagree that Casey’s violated the statute by giving notice of the

drugs to be tested too far in advance. The purpose of the notice is to enable

employees to share information about their medications that could be relevant to

the test results. Id. § 730.5(7)(c)(2). The district court interpreted the statute to

require Casey’s to provide the notice at the time of testing because the legislature

placed the requirement immediately before the provision discussing review by a

medical control officer. We agree it makes sense for the employee to provide their

“additional information” close to the time of testing. But the statute’s text does not

prescribe the timing of the employer’s notice of drugs to be tested. See State v.

Rivera, 614 N.W.2d 581, 584 (Iowa Ct. App. 2000) (“The court cannot read into a

statute something that the legislature did not make apparent by the language.”).

Casey’s substantially complied with the statute by distributing the list of drugs a

few months before the testing.

       Similarly, the statute does not require the employer to afford employees the

opportunity to give their “relevant information” when they submit their sample. In

fact, requiring those disclosures then could force employees to reveal private

information before they tested positive. Relatedly, Iowa Code section 730.5(7)(h)

provides

       A medical review officer shall, prior to the results being reported to
       an employer, review and interpret any confirmed positive test results,
       including both quantitative and qualitative test results, to ensure that
       the chain of custody is complete and sufficient on its face and that
       any information provided by the individual pursuant to paragraph “c”,
       subparagraph (2), is considered.

Until the medical review officer is called to “review and interpret any confirmed

positive test result,” an employee’s additional information is not necessary.
                                          23


       After the plaintiffs gave their samples and the initial testing showed

“nonnegative” results, ARCPoint sent the samples to the Quest laboratory to

perform the confirmatory tests. Quest forwarded the confirmatory tests to Global

Lab Solutions and their medical review officer. She contacted the plaintiffs with

confirmed positive tests. Cattell and Dix both testified they spoke with the medical

review officer and gave her relevant information. On this record, we conclude

Casey’s substantially complied with section 730.5(7)(c)(2).

       Because Casey’s substantially complied with all statutory provisions

challenged by Cattell and Dix, we affirm the district court’s denial of relief to those

employees.10

       D. Awards to Eller and McCann

       An employer who violates section 730.5 is liable for “affirmative relief

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

relief as the court deems appropriate.” Iowa Code § 730.5(15)(a). The district

court awarded McCann $94,889.05 in back pay but denied his claim for front pay.

The court awarded Eller $85,630.75 in back pay and $96,871.72 in front pay. 11

Awards for both back pay and front pay are subject to the employee’s duty to

mitigate damages. Skipton, 2012 WL 3860446, at *8.




10 Cattell and Dix contend the court should have awarded them attorney fees.
Under section 730.5(15) the court may award affirmative relief “as the court deems
appropriate including attorney fees and court costs.” See Sims, 759 N.W.2d at
340. But because Cattell and Dix did not prevail at trial or on appeal, they are not
entitled to attorney fees.
11 The court calculated these figures from stipulated wage rates. The amounts are

not in dispute.
                                             24


       We review an award for back pay to determine if it was “supported by

substantial evidence or was induced by an improper application of law.” Tow, 695

N.W.2d at 38. Front pay is available when reinstatement is inappropriate.12 Ogden

v. Wax Works, Inc., 29 F. Supp. 2d 1003, 1011 (N.D. Iowa 1998). Factors to

considered when calculating front pay include plaintiff’s age, length of employment,

likelihood employment would have continued, plaintiff’s work and life expectancy,

plaintiff’s ability to work, plaintiff’s ability to work for defendant, and plaintiff’s status

as an at-will employee. Id. at 1015. The question whether to award front pay

presents a challenging issue for the district court because it is based on many

factors, and the court must consider all the appropriate circumstances involved for

determining equitable relief. Standley, 5 F.3d at 322.

       Casey’s argues Eller and McCann are not entitled to back pay because they

did not sufficiently mitigate their damages, or in Eller’s case, make any attempt to

mitigate damages. Eller and McCann point out the burden is on the employer to

prove (1) other substantially equivalent positions were available to the employees

and (2) the employees failed to use reasonable diligence in attempting to secure

such a position. See Children’s Home of Cedar Rapids v. Cedar Rapids Civil

Rights Comm’n, 464 N.W.2d 478, 482 (Iowa Ct. App. 1990).

       The plaintiffs also argue the employer must offer substantial evidence they

could have mitigated their losses. See Greenwood v. Mitchell, 621 N.W.2d 200,


12Front pay is “money awarded for lost compensation during the period between
judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du Pont de
Nemours & Co., 532 U.S. 843, 846 (2001); see also Standley v. Chilhowee R-IV
Sch. Dist., 5 F.3d 319, 322 (8th Cir. 1993) (stating “front pay is an equitable remedy
and may be awarded at the court’s discretion”).
                                         25


205 (Iowa 2001). The duty to mitigate requires only reasonable action by the

employee.      Children’s Home, 464 N.W.2d at 482 (“We disagree with the

employer’s interpretation of reasonable care and diligence as meaning that the

discharged employee is required to make every effort to find employment. A

claimant is only required to make every reasonable effort to mitigate damages and

is not held to the highest standard of diligence.” (cleaned up for readability)).

         Casey’s argues McCann is not entitled to back pay because he turned down

a job at a plumbing supply warehouse to start his own business. McCann texted

with the plumbing supply manager about a job but ultimately decided to cash out

his retirement account to start a food truck business. From the inception of the

business until trial, he had not yet turned a profit. McCann testified the plumbing

supply job was in Des Moines, but he lives in Pleasantville and his daughter goes

to school in Pella; he did not want to miss her activities due to the distance. But in

texts with the manager, McCann also mentioned he “enjoyed a ‘left handed

cigarette’ at the end of the day so the prescreening test would be an issue” if he

began employment there.13 Although it was skeptical of his rationale for declining

the plumbing job, the district court could not conclude McCann acted

unreasonably.

         We agree Casey’s did not show McCann acted unreasonably in pursuing

the food truck business.     He testified about his earnest efforts to set up the

business and the risks he was taking. The limited financial record shows that while

the business had a gross profit of $14,485 in 2017, McCann had a negative net



13   McCann explained by “left-handed cigarette” he meant marijuana.
                                          26


income of $19,321 after considering his expenses. McCann’s testimony and the

financials support the finding he acted with reasonable care and diligence in

starting his business. See Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061,

1065 (8th Cir. 1988) (finding discharged employee’s efforts to mitigate damages

were reasonable though he turned down a job offer to pursue his own business

venture). The district court appropriately awarded McCann back pay.14

       McCann argues he should have gotten front pay as well. The district court

rejected that request finding McCann, then age of thirty-eight, was “in the prime of

his work life and able-bodied.” The court noted, “[T]here appears to have been no

adverse effects from his termination that would have prevented him from making

a timely return to the job market.” McCann took the risk of starting the business

rather than pursuing the plumbing supply job or a similar position with more certain

wages. Under these circumstances, although we conclude McCann did not act

unreasonably in pursuing a business that did not immediately make a profit, we do

not find front pay is warranted.

       As for Eller, Casey’s argues she did not make any effort to mitigate her

damages because she did not search for new work after her termination. Casey’s

cites Quint v. A.E. Staley Manufacturing Co., where the court reduced the award




14 Casey’s also argues McCann was not entitled to relief because he did not have
“clean hands” given his drug use. See Ellwood v. Mid States Commodities, Inc.,
404 N.W.2d 174, 184 (Iowa 1987) (“The clean hands doctrine stands for the
principle that a party may be denied relief in equity based on his inequitable, unfair,
dishonest, fraudulent, or deceitful conduct.”). We decline to apply that equitable
principle here, particularly because we affirm the finding Casey’s was not
authorized to test McCann.
                                          27


for back pay for the “utter failure” to seek similar employment. 172 F.3d 1, 16 (1st

Cir. 1999).

       Rejecting the employer’s argument, the district court noted Eller’s

considerable physical restrictions, her age of fifty-one, and credited expert

testimony that she is likely unable to find work. Eller presented evidence from a

vocational specialist that seeking employment would have been futile based on

her restrictions that “drastically reduced if not totally eliminated” her access to the

job market. Casey’s did not offer any countering evidence. We find substantial

evidence supports the conclusion that other jobs are unavailable to Eller and her

failure to seek other employment was reasonable under these circumstances.

       Casey’s also contends Eller was not entitled to front pay if she was disabled

and could no longer work. See Children’s Home, 464 N.W.2d at 482. This

argument is unpersuasive because Eller testified she could have continued in her

light-duty job at Casey’s as she had been performing it, if she had not been fired.

The district court properly awarded Eller back and front pay.

       Because we find no reversible errors in the district court’s ruling, we affirm

on both the appeal and cross appeal claims.15

       AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL.




15
  Our court files another case challenging employer actions under section 730.5 today,
Woods v. Charles Gabus Ford, Inc., No. 19-0002, 2020 WL ________, at *___ (Iowa Ct.
App. Jan 9, 2020).
