Webster v. Motorola: Employees Reclaiming the Right to Privacy: Random Drug Testing for Safety-Sensitive Employees Only
TO: John Smith
FR: Management
RE: Mandatory Drug Testing
DA: March 1, 1996
You have been randomly selected for drug testing in the company's drug testing program. Report to the testing facility tomorrow at 9:00 a.m. to produce your urine specimen. Failure to undergo drug testing at this time will result in termination of your employment. Remember, a drug-free workplace is a safe workplace!
Introduction
The preceding memorandum is a reality for many employees today.(1) In the 1980s, many private employers began to implement drug testing programs to detect evidence of drug use in their workforces.(2) Undeniably, drug use is a major problem in the United States and it does result in workplace accidents.(3) However, drug testing programs are often criticized for invading the privacy rights of employees as well as for being ineffective.(4)
Drug testing programs are said to infringe upon the privacy rights of employees in several ways.(5) An employee's production of the actual specimen--urine--is an "inherently private" act in itself.(6) Furthermore, prior to drug testing, an employee is asked for information regarding the prescriptive drugs he or she is taking, in order that any such drugs may be accounted for in the test.(7) This arguably invades the privacy of employees, because they are required to divulge which medications they are taking in order to prevent distortion of laboratory results.(8) This is considered to be highly personal information; therefore, employees have a significant interest in keeping it private.(9) Additionally, when an employee's urine sample is analyzed, his or her employer is able to discover other private facts, including whether the employee is pregnant, has diabetes, epilepsy, or various other conditions.(10) Drug tests do not indicate whether a person is under the influence of a drug at the time of the test; rather, these tests show whether the employee has taken a drug in the days preceding the test.(11) In this sense, the employer is testing for what an employee does "off-duty."(12) Drug testing also does not distinguish between a person with a drug problem and a casual drug user.(13) This difference is relevant because casual drug users may pose less of a threat of on-the-job impairment than more serious drug users.(14) Finally, if an employee does test positive, this information is passed along to managers and supervisors, and is documented in the employee's file.(15) This disclosure, which informs others of the employee's personal business, is seen as yet another intrusion into an employee's life.(16)
Drug testing programs, in addition to being intrusive,(17) come under scrutiny for being inaccurate, ineffective, and expensive.(18) A situation in which a test result reveals that a person has taken a drug when, in fact, the person never has (i.e., a false-positive result), is possible for even the most reliable tests.(19) Additionally, drug testing programs in the workplace have not been found to deter drug use, increase productivity, or improve workplace safety.(20) Finally, the cost of drug testing programs is exorbitant when compared to the small number of positive results.(21)
The remaining issue is whether a victory in the war against drugs through widespread testing in the workplace is too costly.(22) It has been said that "demanding an unconditional surrender of privacy rights would be a high price to pay to rid our society of drugs."(23) However, drug testing is necessary in some situations and should not be abolished outright from the workplace.(24) Since employers may be held liable for the actions of their drug impaired workers under several legal theories such as negligent hiring, negligent retention, negligent supervision, failure to exercise control, respondeat superior, and negligent entrustment, it is often in their interest to have work-place drug testing.(25) Additionally, to forego drug testing altogether would possibly present safety risks to co-workers as well as the general public.(26) Placing some limitations on drug testing appears to be the most reasonable solution for all parties involved.(27)
Taking this into account, consider the following hypothetical employees who have just received the above-mentioned memorandum: Employee A, a front-desk clerk at a hotel; Employee B, an executive assistant at a nuclear power plant; Employee C, an accountant for the XYZ firm who has been exhibiting signs that he may be using drugs; and Employee D, a crane operator for a construction company. Should all four of these employees receive like treatment with respect to drug testing?
Looking at the hypothetical employees and their varied job responsibilities, does drug testing seem warranted in some situations but not in others? For example, should Employee A be required to submit to random drug testing as a condition of employment when his job duties do not involve a risk of injury to himself or to others? What about Employee B, whose job is mostly clerical, but is located in a potentially hazardous environment? Contemplate Employee C, whose job requires critical thinking, accuracy, and attention to detail, and who is exhibiting potential signs of drug use. Should an employer be allowed to require drug testing in this situation? Finally, is an employer justified in testing Employee D, whose job involves risks to the employee, other employees, and the general public? In the preceding hypotheticals, the employers' interests in a drug-free workplace must be weighed against the employees' right to privacy.(28)
As a result of Webster v. Motorola,(29) only Employee D may be required to submit to random drug testing as a condition of employment in Massachusetts.(30) Part II of the following Comment examines the background of drug testing via urinalysis(31) in the private sector,(32) the right to privacy for employees in Massachusetts,(33) and drug testing in general in Massachusetts.(34) Part III discusses the facts,(35) procedural history,(36) and the court's opinion in Webster.(37) Part IV will analyze Webster in light of its civil rights and right to privacy claims, and the resulting ramifications of the court's holding.(38) Part V concludes this Comment with a discussion in support of the decision by the Supreme Judicial Court of Massachusetts (SJC) to allow random drug testing of safety-sensitive employees only,(39) a recommendation that the Massachusetts Legislature enact a drug testing statute, and a suggestion for a reasonable suspicion standard for critical employees only.(40)
Background
A. Approaches to Drug Testing
There are four different approaches to drug testing in the workplace:(41) (1) pre-employment drug testing,(42) (2) suspicion-based drug testing,(43) (3) periodic drug testing,(44) and (4) random drug testing.(45)
The first method--the pre-employment drug test--is one in which a prospective employee must pass a drug test before being hired.(46) Urinalysis is most often used in pre-employment testing,(47) and its use has largely been upheld by courts across the country.(48) It is generally agreed upon that because an applicant does not yet have a cognizable interest in the job, there can be no violation of constitutional or statutory rights.(49) The issue for an applicant is more like "no drug test, no job," whereas for an employee, it is more serious: "no drug test, lose your job."(50) Another reason given for upholding the right to test is that an applicant's work performance cannot be evaluated to see if the applicant would be a good employee.(51) In order to determine this, an employer should be able to review the applicant's background, which includes potential drug use.(52)
The second approach to drug testing is a suspicion-based program, which provides for drug testing only if the employer has "a reasonable suspicion of drug use by a particular employee."(53) Erratic behavior or involvement in a suspicious on-the-job-accident are acceptable reasons for requiring testing under this approach.(54) This approach is used primarily in the public workforce, where the government is limited by the Fourth Amendment against unreasonable searches and seizures.(55)
The third method is a periodic drug testing program, where an employee undergoes testing at specific time intervals.(56) Such tests may occur at the employee's annual physical examination, or following vacations or leaves of absence.(57) It is argued that this form of testing is less objectionable to employees because it "does not produce the anxiety that a random or suspicion-based test produces."(58)
The fourth method is the random drug testing program, in which an employee can be selected for testing at any time.(59) The criteria for selection must be neutral.(60) However, while random drug testing carries no stigma, it is sometimes viewed by employees as "an extreme invasion of privacy . . . and may be perceived as indicative of a `guilty until proven innocent' philosophy."(61) Currently, the states of Alaska,(62) California,(63) Massachusetts,(64) New Jersey,(65) and West Virginia(66) recognize the invasiveness of this approach, and now allow random testing of only safety-sensitive employees.(67)
B. Massachusetts Right to Privacy
The Commonwealth of Massachusetts provides its citizens with a statutory right to privacy.(68) State action is not required for a violation of this right to be found, as the statute protects against intrusions by any person or business.(69) For example, the Massachusetts Legislature has recognized that an employer may not seek certain private information about an employee or prospective employee.(70)
An intrusion upon an employee's right to privacy can result from either the collection or the dissemination of personal information.(71) In the employment context, Massachusetts courts consider the following factors to determine whether the alleged intrusion is a violation of an employee's right to privacy: (1) the relevancy of the intrusion to the employee's job performance; (2) the extent of the intrusion; and (3) the nature of the employee's job.(72) Then, "a careful balancing must be made between privacy interests and the need for the requested information, its materiality, and its relevance."(73)
One example of a case in which the SJC found no invasion of the employee's right to privacy is Cort v. Bristol-Myers Co.(74) As a result of poor performance in its sales division, the Bristol-Myers company developed a questionnaire which had to be filled out completely by employees in that division.(75) The plaintiffs in Cort objected to certain questions on the grounds that the questions were too personal, were offensive, and had nothing to do with job performance.(76) The plaintiffs were then terminated for their refusal to answer these questions.(77)
The SJC acknowledged that "in the area of private employment there may be inquiries of a personal nature that are unreasonably intrusive and [are of] no business of the employer."(78) To determine whether such an inquiry is unreasonable, the court noted, the employer's legitimate interest in determining the employees' job effectiveness should be balanced against the seriousness of the intrusion.(79) In measuring the questionnaire's reasonableness, the court looked to the nature of the plaintiffs' jobs, and stated that a high-level or confidential employee would have a decreased interest in privacy compared to one "who mows grass or empties waste baskets."(80) The court considered the salesmen to be closer on the spectrum to the high-level employee, and as such, concluded that they had a reduced interest in privacy.(81) Also, the court found that most of the unanswered questions were relevant, and that none were overly intrusive, for much of the information could have been found in public records.(82) The plaintiffs' discharges were upheld because the information sought did not, according to the court, constitute an unreasonable interference with their privacy.(83)
Another case which addressed this issue was Bratt v. International Business Machines Corp.(84) In Bratt, the employee's supervisor wrote and distributed to other corporation employees a memorandum stating that the employee appeared to be suffering from a mental problem.(85) The United States Court of Appeals for the First Circuit certified questions of law to the SJC, asking, inter alia, whether this disclosure of private facts was sufficient publication to impair an employee's right to privacy.(86) Relying on the Cort decision, in which an employee's right to privacy was interpreted as "proscrib[ing] the required disclosure of facts about an individual that are of a highly personal or intimate nature when there exists no legitimate, countervailing interest,"(87) the Bratt court stated that it is necessary to "balance the employer's legitimate business interest[s] in disseminating the information against" the extent of the intrusion of the employee's privacy.(88) The Bratt court found that disclosure of this type of information to other employees in the same corporation could sufficiently constitute an invasion of privacy.(89)
In summary, the Commonwealth of Massachusetts recognizes that an employee's right to keep personal information private will prevail unless the employer has a sufficiently compelling reason to obtain or disclose the information.(90) Testing for the presence of drugs in one's system, which is yet another form of personal information, should be analyzed in the same way.(91) Some reasons given to justify an employer's testing for drugs include protecting "valuable employer property, . . . improving productivity, reduction of health insurance or disability premiums, . . . safety concerns,"(92) and promoting a "clean-cut image."(93) With the exception of safety concerns, the preceding grounds for testing are not sufficiently compelling to warrant the intrusion on an employee's privacy.(94)
C. Massachusetts Drug Testing
As previously noted, workplace drug testing in Massachusetts is subject to the statutory right to privacy because it involves the collection and dissemination of highly personal information.(95) The SJC has been somewhat indecisive with regard to drug testing in the public sector.(96) For instance, the court has held that the unannounced drug testing of a police cadet, who had consented to testing as a condition of employment, was not an unreasonable search and seizure or an invasion of his privacy.(97) The court balanced the need for the search against the search's intrusiveness into a person's reasonably expected privacy.(98) The court found that the public interest in discovering and deterring drug use by police cadets was of sufficient weight to make the testing reasonable within Article 14 of the Massachusetts Constitution.(99) The court also held, by using the same balancing test as previously discussed, that the drug testing of the cadet was not an unreasonable interference with his privacy.(100)
In Guiney v. Police Commissioner of Boston,(101) the plaintiff challenged a Boston Police Department rule which authorized drug testing of police officers on both a reasonable suspicion and random basis.(102) Unlike its pro-drug testing decision in O'Connor, the SJC held that this rule constituted an unreasonable search and seizure in violation of Article 14 of the Massachusetts Declaration of Rights.(103) The court reasoned that there was no evidence of a drug problem in the Boston police force, and, as such, "decreasing drug use" was not a sufficiently compelling interest to justify random testing.(104) The difference in results in the O'Connor and Guiney cases hinged upon the fact that in O'Connor, the police cadet had consented to the search.(105)
Outside the realm of the public sector, in Bally v. Northeastern University,(106) the SJC held that a college may require a student athlete to submit to drug testing.(107) In Bally, the plaintiff claimed that the university's policy, which required periodic and random drug testing as a condition of participation in an intercollegiate athletic sport, had violated his civil rights and his right to privacy.(108) The court rejected both of the plaintiff's claims.(109)
For a successful civil rights claim, the plaintiff had to prove either that his or her rights had been interfered with, or that an attempt had been made to interfere with his or her rights by threats, intimidation, or coercion.(110) The court held that even if the university had interfered with the plaintiff's right to privacy, the drug testing condition for participation in intercollegiate sports did not constitute the requisite threat, intimidation, or coercion.(111) Additionally, the court stated that meritorious civil rights claims involve "measures directed toward a particular individual or class of persons" and "a threat of harm."(112) In Bally, the court held that none of these factors were present because the drug testing had been indiscriminate, and if a student had refused to comply, the result would merely have been exclusion from the college sport.(113) With respect to the right to privacy claim, the court refused to extend Bratt(114) outside the scope of private employment.(115)
Prior to Webster, the only Massachusetts case involving drug testing in the private sector was Folmsbee v. Tech Tool Grinding & Supply, Inc.(116) The defendant company manufactured tools that were "razor sharp and [had to] be handled with great care in order to avoid injury to the Tech Tool employees and to persons using them after they [had] been manufactured and shipped."(117) Tech Tool commenced a drug testing program after two employees were arrested on drug charges and the vice-president of the company found evidence of marijuana on the business premises.(118) The plaintiff, a tool grinder, refused to take the drug test and left the employment of Tech Tool.(119) The plaintiff brought suit claiming, inter alia, that her privacy rights had been violated.(120) The court used the balancing test outlined in Bratt and weighed the competing interests of the employer in testing, against the employee's right to privacy, and concluded that Tech Tool's interests prevailed.(121) This conclusion was based on several factors, namely, that the tool manufacturing business requires extreme alertness and precision, the potential for injury to employees and customers exists, and there was evidence that employees had been using drugs.(122)
Webster v. Motorola
A. Facts
1. The Defendants
Defendant Motorola is a corporation that designs, manufactures, and sells electronic equipment and systems.(123) Motorola employs approximately 60,000 people in the United States.(124) Motorola began drug testing job applicants in 1987(125) and began a random drug testing program on January 1, 1991, which was to be enforced at all of its facilities, including its subsidiaries--defendants Motorola Communications and Codex.(126)
2. The Program
The program that Motorola instituted in 1991 randomly selects employees by a computer.(127) The selected employees are then notified and instructed to report for testing at a designated facility.(128) Before testing, an employee signs an authorization form and divulges whether he or she has taken any medications recently which could affect the results of the test.(129) The employee is then given a cup and is instructed to provide a urine specimen in a private room.(130) Meanwhile, a technician waits outside of the room, and when the employee comes out, the technician examines the urine sample for unusual characteristics.(131)
The specimen is then sent to an independent chemical laboratory where it is tested for the presence of five types of drugs:(132) marijuana,(133) cocaine,(134) opiates,(135) phencyclidine (PCP)(136) and amphetamines.(137) If the sample tests positive for any of these drugs,(138) it is referred to a medical review officer (MRO)(139) for further verification.(140) The MRO reviews the test results and meets with the employee to determine whether any medications or foods may have caused the positive result.(141)
If the MRO verifies a positive test result, the health services department at Motorola's corporate headquarters is notified, and it, in turn, notifies the designated personnel professional in the employee's division, who is responsible for informing the employee.(142) An employee assistance program (EAP) professional at Motorola then meets with the employee to determine the extent of the drug use.(143) An employee who tests positive must meet with an outside provider(144) who will make recommendations for rehabilitation either in the form of drug education, out-patient treatment, or in-patient treatment.(145) If an employee does not follow the recommended treatment plan, or undergo the drug testing procedure itself, the result is termination of employment.(146)
3. The Plaintiffs
The plaintiffs, James A. Webster and Michael P. Joyce, were both at-will employees for Motorola Communications and Codex, respectively.(147) Webster, who started working for Motorola Communications in 1988, was an account executive whose position involved selling communications equipment to state and local government agencies.(148) Selling to these agencies required Webster to drive a company car approximately 20,000 to 25,000 miles a year.(149) On March 2, 1992, Webster was randomly selected for drug testing.(150) The following day, after being notified, he was tested under protest.(151) Joyce was employed as an editor and tester of user manuals developed for the data communications equipment that Codex manufactured, and, although he did submit to the drug testing program, he objected to it.(152)
B. Procedural History
The plaintiffs commenced their civil action on September 26, 1990, in Massachusetts Superior Court against Motorola Inc., Motorola Communications, and Codex.(153) Their complaint was based on four claims, alleging violations of Massachusetts General Laws chapter 12, section 11I (civil rights) and chapter 214, section 1B (right to privacy), breach of contract, and wrongful termination.(154) The plaintiffs sought declaratory and injunctive relief from the drug testing program, costs, and attorneys' fees.(155) The plaintiffs' motion for a preliminary injunction to enjoin testing was denied.(156)
The motion judge granted summary judgment for the defendants on the civil rights, breach of contract, and wrongful termination claims.(157) The plaintiffs filed a motion to reconsider their civil rights claims, which was denied.(158)
A three-day bench trial began on June 12, 1992, on the plaintiffs' right to privacy claims.(159) The trial judge ruled that Motorola's program violated Joyce's right to privacy, and enjoined the defendants from testing him under the program.(160) The trial judge reasoned that because Joyce's job duties as a technical writer did not involve a risk of injury to others, his right to privacy outweighed Codex's interests in testing him for drugs.(161) Regarding Webster, however, the trial judge ruled that the defendants had not violated his right to privacy, based on the safety risk that would exist to the public if Webster were under the influence of drugs while driving, which was a significant aspect of his job.(162)
The SJC granted a request for direct appellate review.(163) On appeal, the plaintiffs alleged error in the entry of summary judgment on their civil rights claims, and Webster appealed the ruling on his right to privacy claim.(164) The defendants cross-appealed the trial judge's decision on the privacy claim in favor of Joyce.(165)
C. The Webster Opinion
1. Civil Rights
The first issue that the SJC addressed was whether the defendants had violated the plaintiffs' civil rights.(166) To establish a cause of action under the Massachusetts Civil Rights Act,(167) the following elements must be proven: (1) that a person's "exercise or enjoyment of rights secured by . . . the Commonwealth" (2) was "interfered with, or attempted to be interfered with" (3) by "`threats, intimidation, or coercion.'"(168) The plaintiffs claimed that the defendants' conditioning of their employment on submission to drug testing constituted coercion.(169) The SJC agreed with the motion judge's ruling that, as a matter of law, the defendants' conduct did not constitute a threat, intimidation, or coercion.(170)
The SJC's reasoning stressed the fact that the plaintiffs were at-will employees with no contractual rights to their jobs.(171) The basis of an at-will job is that it can be terminated by the employer or employee at any time for any reason, and, therefore, conditioning further employment upon submission to drug testing was not "actionable conduct."(172)
The court also addressed the fact that successful civil rights claims in Massachusetts traditionally involve actions directed toward a particular individual or class of persons.(173) The court contrasted the defendants' universal drug testing program which did not target particular employees, with successful civil rights claims, and stated that Motorola's program was "`not comparable with the direct assault found in cases where we have granted relief under the Massachusetts Civil Rights Act.'"(174)
2. Right to Privacy
The second issue addressed by the SJC was whether each plaintiff's right to privacy had been violated by the defendants' drug testing program.(175) The trial court judge used the previously established balancing test to determine this issue, weighing the employees' interests in privacy against the employer's competing interest in determining whether employees are using drugs.(176)
The trial court judge recognized that requiring an employee to urinate for a drug test is a "significant invasion of privacy" and that an employee has a strong interest in opposing random drug testing.(177) The weight of the employer's interests in obtaining this information was determined by an analysis of the nature of the employee's duties, and the safety risk to the employer, employee, and the public.(178)
The SJC upheld the trial judge's application of the balancing test as to each plaintiff.(179) The trial judge found that because Webster's job entailed a substantial amount of driving, and because an employee's driving while impaired involves tremendous safety and liability risks, Motorola had a stronger interest in requiring drug testing.(180) The SJC also recognized that Motorola's drug testing program, which contained several procedural safeguards to guarantee privacy and ensure accuracy, minimized the intrusion upon safety-sensitive employees.(181) As to Joyce, however, the trial judge found that the interests of his employers (Codex and Motorola) did not outweigh his right to privacy because, as an editor of user manuals, there was no sufficient "nexus between his job duties and the harms feared."(182) The court made this determination based upon the following factors: (1) that Joyce's work is always checked by others before release; and (2) that "Joyce d[id] not have a security clearance" at the company, "nor d[id] he work directly on matters of national security."(183)
Analysis
A. Reasonable Suspicion Versus Safety Sensitive: Employee C?
The SJC's decision in Webster, which analyzes the reasonableness of a drug testing program in light of the nature of the employer's business and the employee's duties and responsibilities, essentially adopts the safety-sensitive approach.(184) Because the plaintiffs in Webster were randomly selected for testing, the court did not address the reasonable suspicion standard. The following discussion, however, will look at the strengths and weaknesses of both standards.
1. Strict Reasonable Suspicion Standard
A proponent of the reasonable suspicion standard claims three principal strengths of this approach: (1) it poses less of a constitutional threat than does random testing; (2) it forces an employer to carefully supervise employees while looking for potential signs of drug use; and (3) it minimizes the intrusion on an employee's privacy because under this standard, fewer employees will have to undergo testing.(185)
While a strict reasonable suspicion standard may initially sound appealing, it is very subjective.(186) Fatigue and stress can produce the same symptoms that result from drug use.(187) Realizing this, the strict reasonable suspicion standard has the potential to create hostility in a working environment.(188) If a drug-free employee must submit to drug testing as a result of the employer having a reasonable suspicion, ill feelings may arise because of the stigma attached to this method of testing.(189)
In addition to the fact that this policy results in possibly targeting non-drug users, the reasonable suspicion standard is under-inclusive.(190) That is, there are some drug users who appear to function quite well in the workplace without arousing suspicion.(191) If such drug users work in safety-sensitive positions(192) and are not tested, disaster could result.(193) The reasonable suspicion standard does not differentiate between employees involved in potentially dangerous positions and those who are not.(194) This standard, therefore, has the potential of missing employees who should be tested, and including both drug-free employees and employees who pose no safety threat.(195) As a result, this standard is too flawed to be applied across a broad spectrum of employment situations.(196)
2. Safety-Sensitive Standard
Random testing for safety-sensitive employees, while not perfect, "comes closest to striking an equitable balance between an employer's concerns and an employee's privacy rights."(197) It allows an employer to detect a drug problem and confront it before an accident occurs.(198) At the same time, this standard recognizes that, while safety-sensitive employees have a reduced interest in privacy due to the nature of their jobs, other employees do not have a reduced interest in privacy and thus should not be tested.(199)
Four arguments have been posed against the safety-sensitive standard.(200) First, critics say that "[it] ignores the fact that drug abuse among employees, including those who are not in safety-sensitive positions, is damaging to the employer's productivity."(201) Second, employees who are not in safety-sensitive positions may pose significant risks to their fellow employees because some drugs cause an increased propensity for violence.(202) Third, requiring testing only of those employees classified as being in "safety-sensitive" jobs would likely cause dissention and disharmony in the workforce.(203) Finally, this standard causes controversy in determining which positions are safety-sensitive and which are not.(204)
These criticisms aside, the safety-sensitive standard still comes out the clear winner.(205) While drug abuse among employees may be damaging to an employer's productivity, the employer can simply terminate at-will employees for poor performance rather than require such employees to undergo drug testing.(206) The idea that drug-impaired employees will exhibit violence against other employees is the result of pure hysteria.(207)
With regard to workforce harmony, the safety-sensitive standard does not arouse the same feelings of hostility as does the reasonable suspicion standard.(208) Although this may mean that certain employees may be required to undergo drug testing while others in the same workplace will not be so required, the difference in treatment is based on job description, not on an individual employee's behavior.(209) Thus, employee dissension and disharmony is unlikely to occur.(210)
a. Weakness 1: What is a Safety-Sensitive Employee? Employee B
A safety-only standard is easily mapped out at the polar extremes. Airline pilots, nuclear plant workers, and surgeons would be subject to testing; janitors, lawyers, and other office workers would not. Defining an area between the poles where safety is important enough to justify the intrusion, however, requires a bit of finesse.(211)
One of the weaknesses of the safety-sensitive standard involves the question: What is a safety-sensitive employee? The SJC in Webster illustrated the factors to be considered in the determination: (1) the nature of the employee's duties; and (2) the safety risk to the particular employee, to other employees, and to the public.(212) The court stated that there must be a direct nexus between the employee's duties and the potential for harm.(213) Returning to hypothetical Employee B, the executive assistant at a nuclear power plant: although the employee works in a potentially hazardous environment, there is no direct nexus between the employee's job duties and a safety risk. Under this standard, therefore, Employee B may not be required to submit to drug testing.(214)
b. Weakness 2: What About Critical Employees? Employee C
Another weakness of the safety-sensitive approach is the fact that it does not apply to "critical" employees.(215) A critical (or high-level or sensitive) employee is one whose job entails sensitive or confidential information, or involves a tremendous amount of responsibility.(216) If a critical employee is impaired and makes an error of judgment, the employer could be subjected to liability.(217) Despite this, under the safety-sensitive standard, an employer would not be able to randomly test such an employee.(218)
The federal government recognizes this dichotomy and requires "sensitive" employees to be tested.(219) A sensitive employee includes one who, inter alia, has access to classified information or whose position requires a high degree of trust and confidence.(220) The United States Supreme Court and the SJC have also recognized that employees such as these have decreased interests in privacy as a result of their jobs.(221) Due to this decreased interest in privacy and the fact that there is a closer nexus between drug impairment and potential for harm in this situation, it may be in the employer's interest to require drug testing.(222) The court in Webster did not address this issue.
The SJC made the appropriate decision in Webster by adopting the safety-sensitive approach,(223) and applied it correctly to the two plaintiffs. Webster's job entailed duties which could have resulted in harm to himself or others had he been impaired by drugs.(224) Conversely, if Joyce had been impaired, there would not have been a risk of harm or danger.(225) Case law from Alaska,(226) California,(227) New Jersey,(228) and West Virginia(229) supports the SJC's decision.(230)
B. Supporting Case Law
1. Alaska
In Luedtke v. Nabors Alaska Drilling, Inc.,(231) the issue before the Supreme Court of Alaska was whether public policy based on privacy rights protected employees from drug testing.(232) Luedtke concerned two employees who worked on drilling rigs and were fired because they had refused to undergo the drug testing required by the defendant employer.(233) The Supreme Court of Alaska balanced the public policy supporting employee privacy against the public policy supporting health and safety.(234) Recognizing that drugs (specifically marijuana) impair physical and cognitive functions, and that an oil rig constitutes a dangerous working environment,(235) the court held that the public policy supporting the plaintiffs' privacy was substantially outweighed by the public policy supporting the protection of the health and safety of the plaintiffs and other employees on the oil rig.(236) As a result, according to the court, the defendant was justified in requiring the plaintiffs to undergo drug testing.(237)
2. California
The plaintiff in Luck v. Southern Pacific Transportation Co.(238) had been employed as a computer programmer until she was fired for refusing to take a random drug test.(239) The Court of Appeals stated that, although California's constitutional right to privacy does not prohibit all intrusion into an individual's privacy, it provides that "any such intervention must be justified by a compelling interest."(240) The court ruled that the non-safety interests given by Southern Pacific to justify testing (deterrence, efficiency, competence, creating a drug-free environment, enforcing rules against drug use, and ensuring public confidence in the integrity of the railroad industry), were not compelling enough to outweigh the plaintiff's privacy rights.(241) The court held that, while safety is a compelling interest, because the plaintiff worked at a computer terminal all day, having "nothing to do with the actual operation of trains and no responsibility for the operation of railroad equipment," there was no "clear, direct nexus between the employee's duties and the nature of the feared harm."(242) Therefore, the court held, Southern Pacific's requirement that the plaintiff submit to random drug testing had been an intrusion upon her privacy right.(243)
3. West Virginia
In Twigg v. Hercules Co.,(244) the plaintiff's job entailed the maintenance of the stock of supplies at Hercules, a company which manufactured highly explosive and dangerous fuels.(245) The plaintiff refused to submit to random drug testing and his employment was terminated.(246) The court in Twigg held that because of the employee's right to privacy, with two exceptions, it was contrary to public policy to require an employee to submit to drug testing.(247) The two exceptions in which drug testing would be permitted were: (1) if an employer has a "reasonable suspicion" that the employee is using drugs;(248) and (2) if the employee's job responsibility "involves public safety or the safety of others."(249) The court specified that even where the employer's business itself involves an area in which public safety or safety concerns for others exists, the employer must show that the job responsibilities of the employees required to undergo drug testing are "connected to the safety concerns of others."(250) Thus, in Twigg, even though the defendant company was a potentially dangerous workplace because it manufactured highly explosive and dangerous fuels, the employee could not be subjected to random drug testing if the employee's job responsibilities did not involve the safety of others or public safety.(251)
4. New Jersey
In Hennessey v. Coastal Eagle Point Oil Co.,(252) the plaintiff was fired when he tested positive for drugs in the company's random testing program.(253) The plaintiff claimed that his termination was against public policy because the testing had been a violation of his common law and statutory right to privacy.(254) The plaintiff was employed as a lead pumper at the defendant oil refinery.(255) This position involved translating orders and instructions to the gaugers who blend the gas with additives and manage the flow of gasoline products through the refinery.(256) Because the gaugers rely solely on the direction of the lead pumper, this job requires meticulous calculations, accurate record keeping, and the ability to interpret and relay orders.(257)
The New Jersey Supreme Court stated that, in order to determine whether the plaintiff's discharge was wrongful and against public policy, the violation of the plaintiff's right to privacy must outweigh competing public interests of safety.(258) Relying, in part, on Luedtke,(259) the court concluded that safety concerns can, in some situations, outweigh an employee's right to privacy.(260) The Hennessey court held that "[t]he public's interest in ensuring that workers in safety-sensitive positions are drug-free outweighs any individual right to privacy . . . ."(261) The balancing test with which the court ascertained whether an employee is safety-sensitive revolved around whether the "employee's duties are so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large."(262) If these factors are present, according to the court, there would be no violation of public policy for discharging an employee who tests positive for drugs.(263) Applying this balancing test to the job duties of the plaintiff, the court found that the plaintiff was a safety-sensitive employee, and thus, his termination was not violative of public policy.(264) The court concluded that because the issue of drug testing in the workplace is so complex, it is up to the legislature to enact legislation to "more fully define the contours of the competing rights of employers and employees."(265)
C. Ramifications of Webster
A trend is developing in various jurisdictions which recognizes that only safety-sensitive employees should be subjected to random drug testing.(266) To determine whether drug testing is warranted, these courts are balancing the competing interests of employees and employers, while weighing the very important factor of the safety-sensitive nature of an employee's job.(267)
In response to the SJC's holding in Webster, the executive director of the Washington D.C.-based Institute for a Drug-Free Workplace commented that "many corporations feel so strongly about providing a drug-free workplace that they may avoid locating businesses in states with restrictive [drug testing] laws."(268) This prediction that job growth and development in Massachusetts will be affected due to the Webster decision, is unfounded. First, employers are starting to realize the cost-ineffectiveness of drug testing programs, and are acting accordingly.(269) For example, in a follow-up survey of 145,000 businesses, the Bureau of Labor Statistics found that one out of three businesses that had a drug testing program in 1988 no longer had one in 1990.(270) Thus, to some extent, drug testing programs are decreasing independently from the courts and state legislatures.(271) The result of Webster will make drug testing programs more cost effective because it allows testing of the fewest number of people and bases the testing on criteria that make the most sense.(272) The notion that companies may leave Massachusetts due to this decision is likely a response from drug testing laboratories that fear a loss of business.(273)
Positive ramifications of Webster for non-safety-sensitive employees include the development of alternatives to drug testing that are less intrusive.(274) For example, companies could train supervisors how to spot signs of drug abuse in the workplace and deal with it effectively.(275) Employee assistance programs have proven effective in addressing problems of employee substance abuse.(276) Additionally, companies could develop drug awareness and education programs to educate employees.(277)
A relatively new approach for testing on-the-job impairment is the performance test.(278) For example, tour bus drivers at Old Town Trolley Tour in San Diego use a computerized, self-administered test to measure their hand-eye coordination before going "on-the-job."(279) This test, which takes seconds to complete, involves a computer which shows a light in the center of its screen.(280) The light is programmed to move continuously, and the employees use a dial to keep the light centered.(281) The results of the test are compared to the employee's base-line scores.(282) The employee is allowed a re-test if he or she fails.(283) If the employee fails again, he or she must meet with a supervisor.(284) The developers of the test argue that it does not violate the employees' rights to privacy because it only measures whether an employee can do the job, and not what the employee does on his or her own time.(285) The test recognizes that factors aside from drug use, such as fatigue or stress, can cause impairment.(286) As one commentator notes: "[t]he fact of the matter is that whether the individual is impaired because of illegal drugs or a severe case of the flu is beside the point."(287) Another benefit of the performance test is that it provides the result immediately, as opposed to urinalysis which takes several days and which could be too late to prevent an accident.(288) Additionally, the performance test is able to detect alcohol impairment, where urinalysis cannot.(289)
While the SJC's decision in Webster created reasonable guidelines for employers, the Massachusetts Legislature must become involved in the drug testing issue. Massachusetts, unlike other states,(290) does not have a drug testing statute, although drug testing legislation has been introduced twice.(291) The Massachusetts Civil Liberties Union lobbied for a bill that would prohibit, without exceptions, the testing of bodily fluids for drugs as a condition of employment.(292) In 1986, such a bill called the Employee Urinalysis Testing Protection Act was introduced by Representative Hynes.(293) Because the bill was considered radical, however,(294) it was "scrapped" for lack of support.(295)
In 1987, David Cohen, of the Massachusetts House of Representatives, proposed an amendment to Massachusetts General Laws chapter 149, section 19B, a statute which protects employees from lie detector tests.(296) This bill limited the testing of employees for drugs and alcohol to instances in which the employer had probable cause to believe that the employee was using drugs, and to instances in which the employee worked in a job where impairment would present a safety risk to the employee or to others.(297) This bill was very restrictive in that it would not allow any random drug testing.(298) Additionally, employers would be required to have probable cause instead of a reasonable suspicion--a very difficult standard to satisfy.(299)
As stated in Hennessey, because the issues of drug testing are so complex, the question of which types of jobs should require testing would be better resolved by legislative action.(300) Further delineation of the Webster definition of safety-sensitive positions requires legislative guidance.(301) Disastrous effects could result if fearful employers eliminate testing to avoid the litigation that would result if they were to wrongly test persons who are not safety-sensitive employees.(302) Conversely, employees who refuse to submit to drug testing on the ground that they are not safety-sensitive employees could find themselves jobless if a court determines that they indeed are safety-sensitive employees. Additionally, legislation is needed to outline procedural safeguards to minimize the intrusion on privacy rights and to increase the accuracy of drug testing.
Conclusion
The SJC's decision in Webster was an important victory for the right to privacy in the employment context. Employees are reclaiming their right to privacy after a decade of unregulated drug testing in the private sector. The SJC recognized that certain employees should not be subjected to drug testing, and made a wise choice with the safety-sensitive standard. The legislature needs to define more clearly a "safety-sensitive employee" and outline the procedures that must be complied with for drug testing, so that there is uniformity throughout the Commonwealth. For optimum results, the SJC and the legislature should consider the hybrid safety-sensitive/critical employee approach suggested in this Comment, and implement it in the future.
Michelle Lynn O'Brien*
1. It is estimated that in 1992, 22 million Americans were tested for drugs as part of their job requirements. 1 Kevin B. Zeese, Drug Testing Legal Manual § 1.03, at 1-18 (1994). One commentator has characterized the prevalence of drug testing "as American as, well, drugs." David Behrens, Testing the Limits: The Right to Privacy vs. A Drug-Free America, Newsday, Jan. 13, 1989, pt. j, at 2.
2. Behrens, supra note 1, at 2. While fewer than 5% of Fortune 500 Companies participated in drug testing programs in 1982, by 1988, more than 50% of them did. Id. The widespread use of drug testing in the private sector is argued to be the result of tremendous influence from the federal government. 1 Zeese, supra note 1, § 1.01, at 1-2. President Reagan set the trend for private employers with his Executive Order No. 12,564, 51 Fed. Reg. 32,889 (1986), reprinted in 5 U.S.C. § 730 (1988), which created a mandatory urine testing program for federal workers and encouraged drug testing by private employers. 1 Zeese, supra note 1, § 1.01, at 1-2 (citing Exec. Order No. 12,564, 51 Fed. Reg. 32,889 (1986), reprinted in 5 U.S.C. § 730 (1988)).
3. 1 Zeese, supra note 1, § 1.02. In one such accident, an Amtrak employee under the influence of marijuana caused a 10-car passenger train to crash into a repair car, injuring 25 people and causing $3 million in damages. Gerald B. Jordan, U.S. Cites Drug Impairment in Amtrak Crash in Chester, Phila. Inq., Jan. 7, 1989, at B3. It is alcohol, however, that causes the most problems in the workplace; it is estimated that alcohol accounts for $89.5 billion in lost productivity, compared to $46.9 billion for all illicit drugs combined. 1 Zeese, supra note 1, § 1.02, at 1-11 (citing Henrick Harwood, Research Triangle Institute, Economic Costs to Society of Alcohol and Drug Abuse and Illness (1980)). With respect to workplace safety, alcohol is the cause of 40% of industrial fatalities and 47% of industrial injuries. 1 id. § 1.02, at 1-14. In one such accident, a subway train was derailed, killing five and injuring two-hundred passengers as a result of the operator being under the influence of alcohol. Lewis M. Maltby, Performance Test Could Stop Future Transit Tragedies, Newsday, Sept. 5, 1991, at 121. Despite these statistics, testing for alcohol is rare. 1 Zeese, supra note 1, § 1.02, at 1-14.
4. See Edward M. Chen et al., Common Law Privacy: A Limit on an Employer's Power to Test for Drugs, 12 Geo. Mason U. L. Rev. 651, 676-85 (1990).
5. 1 Zeese, supra note 1, § 1.04, at 1-22.9. While groups opposing drug testing recognize that drug and alcohol abuse are problems in the workplace, they argue that "employers are implementing programs for reasons that go beyond health, safety, or prudent management" and that they "are attempting to impose their moral standards on society." Ron Wolf, Hotly Contested, Drug Testing Arrives at Work, Phila. Inq., Mar. 2, 1986, at A1.
6. Folmsbee v. Tech Tool Grinding Supply, Inc., 417 Mass. 388, 393, 630 N.E.2d 586, 589 (1994). The United States Supreme Court, in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989), also stated that "`[t]here are few activities in our society [that are] more personal or private than . . . urin[ation].'" (quoting National Treasury Employee's Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987)).
7. Jeanne M. Flaig, Comment, Preserving Employee Rights During the War on Drugs, 21 Pac. L.J. 995, 997 (1990).
8. Chen et al., supra note 4, at 673.
9. Capua v. City of Plainfield, 643 F. Supp. 1507, 1515 (D.N.J. 1986).
10. Flaig, Comment, supra note 7, at 997.
11. Chen et al., supra note 4, at 676-77. Urinalysis does not measure the existence of drugs in a tested employee's system at the time of testing. Id. Unlike blood alcohol tests, which measure the concentration of alcohol in the blood, urinalysis only detects "inert metabolites," which are the products remaining after the body has processed a drug. Id. The presence of these metabolites only indicates prior use of a drug. Id. at 677. While traces of marijuana can last for more than one month, cocaine, crack, and heroin, which are arguably the most dangerous drugs, are the most difficult to detect through drug testing. Behrens, supra note 1, at 5. Cocaine traces, for example, are present for fewer than 48 hours after use, and it is even possible for one to use cocaine, undergo drug testing a few hours thereafter, and have the test results come back negative. Id.
12. Thomas L. McGovern III, Employee Drug-Testing Legislation: Redrawing the Battlelines in the War on Drugs, 39 Stan. L. Rev. 1453, 1457 (1987). One argument against drug testing is that because the test detects only traces of a drug and not existing impairment, it is not relevant to job performance. That is, while "on-the-job intoxication is a legitimate concern of the employer, off-the-job use a month ago is not." Behrens, supra note 1, at 5. One commentator has likened drug testing to "surveillance of off-the-job conduct," and, as such, has concluded that it constitutes an invasion of an employee's privacy. Chen et al., supra note 4, at 674.
13. Ken Englade, Who's Hired and Who's Fired, Student Law., Apr. 1986, at 23.
14. Chen et al., supra note 4, at 679. Only ten percent of drug users can be characterized as "chronic" users; the vast majority (ninety percent) are "casual" or "occasional" users, who do not "present any greater risk of on-the-job impairment or dysfunction than the average worker, and certainly no greater risk than the average `social drinker' of alcohol." Id.
17. For an interesting discussion listing methods which are less intrusive than urinalysis, see Flaig, Comment, supra note 7, at 1028-30 (suggesting, inter alia, a "skills test" in which a reflex, response time, or a hand-eye coordination test be given to an employee to detect impairment). The author argued that a skills test is far superior to drug testing because it provides immediate results and is not as violative of the employee's right to privacy as is drug testing. Id. A newer method for drug testing involves the analysis of hair. See Duane Stoltzfus, Unlocking the Secrets of the Hair: Drug Screening with a Twist, N. N.J. Rec., July 23, 1990, at C1. Once a drug is ingested, it flows through the bloodstream, eventually reaching the hair roots. Id. The drug residue remains in the hair as it grows; thus the test analyzes the hair "time line" and can determine when and in what concentration the drugs were taken. Id. While this method is considered by some to be less intrusive than urinalysis, it also invokes privacy concerns because the test allows an employer to go back further in time, which, arguably, bears no relation to one's ability to perform at the present time. Id.
18. Elaine S. Povich, Study Finds Drug Tests Costly, Useless, Phila. Inq., June 21, 1986, at A3. In reference to drug testing of federal employees, Representative Patricia Schroeder (D., Colo.) made the following comments:
[T]his type of testing . . . [is] costly and useless. . . . It is costly because the tests could run $100 per employee.
It is useless because the tests are unreliable, because the testing procedures of many labs are sloppy, because the tests do not show intoxication, because the tests do not show level of usage, because the law says employees cannot be fired for off-duty conduct which does not affect on-the-job performance, and because employees have a right to be protected from unreasonable intrusions into their bodily functions . . . .Id.
19. Flaig, Comment, supra note 7, at 1026 & n.292. Ingestion of certain foods and over-the-counter medications can produce a false positive result. Id. For example, poppy seed bagels and the over-the-counter medication "Nuprin" can each cause positive results for both opiates and marijuana. Behrens, supra note 1, at 5. Cold medications such as "Contac" and "Sudafed" may cause positive results for amphetamines, and merely being in the presence of others who smoke marijuana can cause a positive result. Wolf, supra note 5, at A1.
20. 1 Zeese, supra note 1, § 1.03, at 1-22. The National Research Council and the Institute of Medicine formed a committee to study the effectiveness of drug testing; its report stated that there is no solid proof that drug testing lowers accident rates and that there is no statistical evidence that drug testing is a deterrent to drug use. Richard Saltus, Workplace Drug Tests Questioned: Report Finds Little Evidence of Effectiveness of Programs, Boston Globe, Nov. 30, 1993, at 33.
21. 1 Zeese, supra note 1, § 1.03, at 1-19. Drug testing is not cost-effective for employers due to the small percentage of employees that actually do test positive; one company tested 10,000 employees, with only 49 positive results. 1 id. at 1-20. The cost to the company per each positive result was approximately $20,000. 1 id.
22. McGovern, supra note 12, at 1453.
25. Elliot S. Kaplan et al., Drug and Alcohol Testing in the Workplace: The Employers' Perspective, 14 Wm. Mitchell L. Rev. 365, 384 (1988).
28. See McGovern, supra note 12, at 1457.
29. Webster v. Motorola, 418 Mass. 425, 637 N.E.2d 203 (1994).
30. Id. at 433, 637 N.E.2d at 207-08.
31. Unlike drug testing through the use of blood tests, drug testing via urinalysis is the most common form for testing because it does not require extracting anything from the body. 1 Zeese, supra note 1, § 2.03[1], at 2-32. Additionally, the urine tests have been the most widely marketed. 1 id. Another reason for the popularity of this form of testing is that the presence of an illegal drug will test positive for the longest period of time in a urine test. 1 id.
32. See infra notes 41-67 and accompanying text.
33. See infra notes 68-94 and accompanying text.
34. See infra notes 95-122 and accompanying text.
35. See infra notes 123-52 and accompanying text.
36. See infra notes 153-65 and accompanying text.
37. See infra notes 166-83 and accompanying text.
38. See infra notes 184-302 and accompanying text.
41. Scott S. Cairns & Carolyn V. Grady, Drug Testing in the Workplace: A Reasoned Approach for Private Employers, 12 Geo. Mason U. L. Rev. 491, 495 (1990).
42. See infra notes 46-52 and accompanying text.
43. See infra notes 53-55 and accompanying text; see also infra part IV.A.1.
44. See infra notes 56-58 and accompanying text.
45. See infra notes 59-61 and accompanying text.
46. Cairns & Grady, supra note 41, at 495.
48. Id.; see also Wilkinson v. Times Mirror Corp. 264 Cal. Rptr. 194 (Ct. App. 1989) (finding no violation of privacy rights of applicants who received an offer of employment conditioned upon a negative result on a drug and alcohol test). But see O'Keefe v. Passaic Valley Water, 602 A.2d 760 (N.J. Super. Ct. App. Div. 1992) (allowing no pre-employment testing of applicant for water meter reading position because the job did not involve significant safety risks).
49. Cairns & Grady, supra note 41, at 495. Pre-employment testing "is less likely to provoke a legal challenge because the applicant has a lower stake in the job than an incumbent employee." Id.
50. Wolf, supra note 5, at A1.
52. Michael R. O'Donnell, Note, Employee Drug-Testing--Balancing the Interests in the Workplace: A Reasonable Suspicion Standard, 74 Va. L. Rev. 969, 992 (1988).
53. Eric E. Hobbs & Thomas W. Scrivner, Farmers, Foxes, Chickens, and Hen Houses: A Case for Limited Mandatory Random Drug Testing of Employees in the Private Sector, 32 St. Louis U. L.J. 605, 608 (1988).
55. See National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989).
56. Cairns & Grady, supra note 41, at 497.
57. Hobbs & Scrivner, supra note 53, at 609; see also AFL-CIO v. Unemployment Ins. Appeals Bd., 28 Cal. Rptr. 2d 210, 212 (Ct. App. 1994) (involving drug test performed during annual physical examination); Luedtke v. Nabors Alaska Drilling Inc., 768 P.2d 1123, 1125 (Alaska 1989) (involving drug test performed during physical examination).
58. Cairns & Grady, supra note 41, at 497.
67. For a definition and discussion of safety-sensitive employees, see infra part IV.A.2.
68. Mass. Gen. L. ch. 214, § 1B (1994) ("A person shall have a right against unreasonable, substantial or serious interference with his privacy.").
69. See Bratt v. International Business Mach. Corp., 392 Mass. 508, 509-10, 467 N.E.2d 126, 129 (1984) (holding that an employee's right to privacy could be violated by a corporation). But see Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1130 (Alaska 1990) (declining to "extend the constitutional right to privacy to the actions of private parties").
70. See Mass. Gen. L. ch. 149, § 19B(2) (1994) (providing that an employer is guilty of a crime if the employer subjects either a current or prospective employee to a lie detector test, or requests submission to such a test); Mass. Gen. L. ch. 151B, § 4(9) (1994) (stating that an employer may not seek information in connection with the discharge of an employee regarding arrests, first conviction for minor crimes, or convictions for misdemeanors).
71. Chen et al., supra note 4, at 671.
72. Cort v. Bristol-Myers Co., 385 Mass. 300, 308, 431 N.E.2d 908, 913 (1982).
73. Id. at 312, 431 N.E.2d at 915 (Abrams, J., concurring).
74. Cort v. Bristol-Myers Co., 385 Mass. 300, 431 N.E.2d 908 (1982).
75. Id. at 301-02, 431 N.E.2d at 909.
76. Id. at 302, 431 N.E.2d at 909. The subject matter of the questionnaire included questions about "serious illnesses, operations, accidents, . . . nervous disorders[,] . . . smoking and drinking habits[,] . . . off-the-job problems [and] . . . principal worries," memberships in civic, professional or social organizations, and aims for the future. Id. at 309, 431 N.E.2d at 913.
77. Id. at 302, 431 N.E.2d at 909.
78. Id. at 308 n.9, 431 N.E.2d at 912 n.9.
79. Cort, 385 Mass. at 308 n.9, 431 N.E.2d at 912 n.9.
80. Id. at 308, 431 N.E.2d at 913.
82. Id. at 310, 431 N.E.2d at 914.
84. Bratt v. International Business Mach. Corp., 392 Mass. 508, 467 N.E.2d 126 (1984).
85. Id. at 511, 467 N.E.2d at 130. In his affidavit, the supervisor stated that only two managerial supervisors had received this memorandum, while the employee claimed that 16 employees in the corporation had actually received copies. Id. at 512, 467 N.E.2d at 130.
86. Id. at 517-18 n.14, 467 N.E.2d at 133 n.14.
87. Id. at 518, 467 N.E.2d at 1333-34.
88. Id. at 510, 467 N.E.2d at 129.
89. Bratt, 392 Mass. at 519, 467 N.E.2d at 134.
90. Id. at 520-21, 467 N.E.2d at 135.
91. Webster, 418 Mass. at 431, 637 N.E.2d at 206-07.
92. McGovern, supra note 12, at 1457.
94. See id. at 1492-1504. "A drug-free workplace may increase productivity and promote a `clean-cut' company image, but do these benefits outweigh the invasion of employees' privacy?" Id. at 1457 (footnote omitted).
95. Webster, 418 Mass. at 431, 637 N.E.2d at 207.
96. Compare Guiney v. Police Comm'r of Boston, 411 Mass. 328, 582 N.E.2d 523 (1991) with O'Connor v. Police Comm'r of Boston, 408 Mass. 324, 557 N.E.2d 1146 (1990).
97. O'Connor, 408 Mass. at 329, 557 N.E.2d at 1150.
98. Id. at 328, 557 N.E.2d at 1149.
99. Id. Article 14 provides, in pertinent part, that "[e]very subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions." Mass. Const. art. 14.
100. O'Connor, 408 Mass. at 329-31, 557 N.E.2d at 1150.
101. Guiney v. Police Comm'r of Boston, 411 Mass. 328, 582 N.E.2d 523 (1991).
102. Id. at 319, 582 N.E.2d at 524. For the provisions of Boston Police Department Rule No. 111, Drug Testing for Departmental Personnel, see Guiney v. Roache, 654 F. Supp. 1287, 1289-94 (D. Mass. 1987).
103. Guiney, 411 Mass. at 334, 582 N.E.2d at 526.
104. Id. at 333, 582 N.E.2d at 526.
105. Id. at 331, 582 N.E.2d at 525.
106. Bally v. Northeastern Univ., 403 Mass. 713, 532 N.E.2d 49 (1989).
107. Id. at 721, 532 N.E.2d at 54.
108. Id. at 714, 532 N.E.2d at 50.
109. Id. at 720-21, 532 N.E.2d at 53-54.
110. Id. at 717, 532 N.E.2d at 51-52.
111. Bally, 403 Mass. at 718, 532 N.E.2d at 52.
112. Id. at 718-19, 532 N.E.2d at 52.
113. Id. at 719, 532 N.E.2d at 53.
114. Bratt v. International Business Mach. Corp., 392 Mass. 508, 467 N.E.2d 126 (1984) (proscribing the required disclosure of facts about an individual that are of a highly personal or intimate nature); see also supra notes 84-89 and accompanying text.
115. Bally, 403 Mass. at 721, 532 N.E.2d at 54.
116. Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 630 N.E.2d 586 (1994).
117. Id. at 390, 630 N.E.2d at 588.
119. Id. at 391, 630 N.E.2d at 588. The plaintiff was never actually fired by Tech Tool for her refusal to submit to drug testing; she resigned. Id.
120. Id., 630 N.E.2d at 588-89.
121. Folmsbee, 417 Mass. at 392, 630 N.E.2d at 589.
122. Id. at 393, 630 N.E.2d at 589.
123. Webster v. Motorola, 418 Mass. 425, 432, 637 N.E.2d 203, 207 (1994). The types of electronic products that Motorola designs and manufactures include two-way radios, pagers, cellular telephones and systems, semiconductors, defense and aerospace electronics, automotive and industrial electronics, computers, data communications equipment, and information processing equipment. Id. These products are used in consumer items such as air bags, ignition systems controls, braking systems, and steering mechanisms. Id. Products are also sold to the government for use in radar systems and ground-to-air communications. Id. Two-way communication systems are sold to police and fire departments. Id.
124. Stanley D. Miller, Drugs: Motorola Will Test All of its Workers, Phila. Inq., May 22, 1990, at B9.
126. Webster, 418 Mass. at 426, 637 N.E.2d at 204.
127. Id. Under this method, an employee is selected for testing at least once in a three-year period and there is no limit to the number of times an employee may be selected. Id.
128. Id. The testing is performed either at the Motorola facility or at a site located in its vicinity. Id.
129. Id. at 427, 637 N.E.2d at 204.
131. Webster, 418 Mass. at 427, 637 N.E.2d at 204-05.
132. Id. at 427, 637 N.E.2d at 205.
133. Classified as a hallucinogenic drug, marijuana creates feelings of relaxation. Richard R. Bootzin & Joan R. Acocella, Abnormal Psychology 304-06 (5th ed. 1988).
134. Cocaine is a stimulant that produces feelings of euphoria and omnipotence, and increases risk-taking and violent behavior. Richard L. Miller, The Case for Legalizing Drugs 9-10 (1991).
135. Opium is known as the "grandfather of the narcotics." Bootzin & Acocella, supra note 133, at 298. Narcotics induce relaxation and relief from stress and pain. Id.
136. Also known on the street as "angel dust," PCP is a hallucinogen, which distorts sensory perception. Id. at 304.
137. Amphetamines are synthetic stimulants which create feelings of confidence and energy in its users. Id. at 301-02.
138. Webster, 418 Mass. at 427, 637 N.E.2d at 205. An additional test is conducted for the presence of barbiturates, benzodiazepines, methadone, and methaqualone, if there is a positive result in the first test. Id.
139. Id. The MRO is not an employee of Motorola. Id.
141. Id. The MRO is instructed by Motorola to rule on behalf of the employee if the MRO has evidence "that would substantiate a negative rather than a positive" result. Id.
143. Webster, 418 Mass. at 427-28, 637 N.E.2d at 205. An employee assistance program provides counseling and treatment referral to workers for problems including drug and alcohol abuse. Saltus, supra note 20, at 33. Employee assistance programs have proven to be an effective means by which workers may get early treatment for drug or alcohol problems, and, as a result, return to their jobs. Id.
144. Webster, 418 Mass. at 428, 637 N.E.2d at 205.
147. Id. After commencement of their civil action, the plaintiffs both resigned from their respective jobs. Id. at 429 n.3, 637 N.E.2d at 205 n.3. The court nevertheless reviewed the issues presented in their case because the plaintiffs still had standing to pursue their civil rights claims. Id. Additionally, because the superior court judge determined that the program violated Mass. Gen. L. ch. 214, the SJC could also review that issue. Webster, 418 Mass. at 429 n.3, 637 N.E.2d at 205 n.3.
148. Webster, 418 Mass. at 428, 637 N.E.2d at 205.
153. Webster, 418 Mass. at 428, 637 N.E.2d at 205.
154. Id. at 428-29, 637 N.E.2d at 205.
155. Id., see also Mass. Gen. L. ch. 12, § 11I (1992) (awarding costs and attorneys' fees in successful civil rights claims).
156. Webster, 418 Mass. at 429, 637 N.E.2d at 205.
161. Webster, 418 Mass. at 433, 637 N.E.2d at 208.
162. Id. at 432-33, 637 N.E.2d at 207-08.
163. Id. at 426, 637 N.E.2d at 204. Chief Justice Liacos, and Justices Abrams, Nolan, Lynch, and Greaney presided. Id.
166. Webster, 418 Mass. at 429-30, 637 N.E.2d at 206.
167. Mass. Gen. L. ch. 12, § 11H (1992).
168. Bally v. Northeastern Univ., 403 Mass. 713, 717, 532 N.E.2d 49, 51-52 (1989).
169. Webster, 418 Mass. at 429-30, 637 N.E.2d at 206.
170. Id. at 430, 637 N.E.2d at 206.
174. Webster, 418 Mass. at 430, 637 N.E.2d at 206 (quoting Bally, 403 Mass. at 719, 532 N.E.2d at 52).
176. Id. at 431, 637 N.E.2d at 207 (citing Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 393, 630 N.E.2d 586, 589 (1994)).
177. Id. at 431, 637 N.E.2d at 207 (citing Folmsbee, 417 Mass. at 392, 630 N.E.2d at 589).
178. Id. at 432, 637 N.E.2d at 207.
179. Webster, 418 Mass. at 434, 637 N.E.2d at 208.
181. Id. at 434, 637 N.E.2d at 208; cf. Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 393, 630 N.E.2d 586, 589 (1994) (involving a drug testing program in which a doctor or medical assistant of the same sex performed a visual inspection of the employee prior to testing for purposes of detecting hidden vials of commercially available urine); O'Connor v. Police Comm'r of Boston, 408 Mass. 324, 326, 557 N.E.2d 1146, 1148 (1990) (involving a drug testing program in which a police cadet was observed by department officers while urinating); Bally v. Northeastern Univ., 403 Mass. 713, 716, 532 N.E.2d 49, 51 (1989) (involving same-sex monitoring of a urinating student athlete).
182. Webster, 418 Mass. at 433, 637 N.E.2d at 208.
184. See infra notes 212-13 and accompanying text.
185. O'Donnell, Note, supra note 52, at 994.
186. See supra note 54 and accompanying text.
187. Chen et al., supra note 4, at 681.
188. Cairns & Grady, supra note 41, at 497.
190. McGovern, supra note 12, at 1495.
193. McGovern, supra note 12, at 1495.
198. McGovern, supra note 12, at 1500.
201. O'Donnell, Note, supra note 52, at 998.
202. See generally Miller, supra note 134.
203. O'Donnell, Note, supra note 52, at 998.
205. McGovern, supra note 12, at 1500.
206. Miller, supra note 134, at 72.
207. For an interesting look at the misinformation and hysteria surrounding drugs and drug use in the United States, see generally Miller, supra note 134.
208. Cairns & Grady, supra note 41, at 499.
209. McGovern, supra note 12, at 1500.
210. Id. ("[T]hese employees may be relieved of extremely obtrusive scrutiny that might otherwise have been necessary if [reasonable suspicion] was retained.").
212. Webster, 418 Mass. at 434, 637 N.E.2d at 208.
213. Id. at 433, 637 N.E.2d at 208.
215. O'Donnell, Note, supra note 52, at 996.
218. McGovern, supra note 12, at 1499.
219. Flaig, Comment, supra note 7, at 1003.
221. See National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (testing of Customs Services employees was reasonable because of their duties); Cort v. Bristol-Myers Co., 385 Mass. 300, 431 N.E.2d 908 (1982) (noting that high-level employees have a decreased interest in privacy).
222. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).
223. Webster, 418 Mass. at 434, 637 N.E.2d at 208.
224. Id. at 432-33, 637 N.E.2d at 207-08.
225. Id. at 433, 637 N.E.2d at 208.
226. See, e.g., Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989); see also infra notes 231-37 and accompanying text.
227. See, e.g., Luck v. Southern Pac. Transp. Co., 267 Cal. Rptr. 618 (Ct. App. 1990); see also infra notes 238-43 and accompanying text.
228. See, e.g., Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11 (N.J. 1992); see also infra notes 252-65 and accompanying text.
229. See, e.g., Twigg v. Hercules Co., 406 S.E.2d 52 (W.Va. 1990); see also infra notes 244-51 and accompanying text.
230. See infra notes 231-65 and accompanying text.
231. Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989).
232. Id. at 1131. The court declined to extend the Alaskan constitutional right to privacy to the actions of private parties. Id. at 1130.
236. Luedtke, 768 P.2d at 1136.
238. Luck v. Southern Pac. Transp. Co., 267 Cal. Rptr. 618 (Ct. App. 1990).
243. Luck, 267 Cal. Rptr. at 632.
244. Twigg v. Hercules Co., 406 S.E.2d 52 (W. Va. 1990).
248. Id.; see also supra notes 53-55 and accompanying text.
250. Id. at 55-56 (emphasis added).
252. Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11 (N.J. 1992).
254. Id. Not discussed in this Comment, but included in plaintiff's complaint, were claims of discrimination, breach of contract, and negligent or intentional infliction of emotional distress. Id. at 13-14.
257. Hennessey, 609 A.2d at 13.
259. Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989). For a brief discussion of Luedtke, see supra notes 231-37 and accompanying text.
260. Hennessey, 609 A.2d at 20-21.
265. Hennessey, 609 A.2d at 23-24.
268. Sean P. Murphy, SJC Ruling Limits Work Drug Tests, Boston Globe, July 22, 1994, at 42.
269. For a discussion of cost-effectiveness of drug testing, see supra note 21.
270. 1 Zeese, supra note 1, § 1.03, at 1-19.
273. Saltus, supra note 20, at 33. Drug testing is "a huge business." American companies spend about $1.2 billion a year for testing. Id.
274. Flaig, Comment, supra note 7, at 1028.
275. 1 Zeese, supra note 1, §§ 9.01-.06.
276. See generally Sonnenstuhl et al., Employee Assistance and Drug Testing: Fairness and Injustice in the Work Place, 11 Nova L. Rev. 709, 710 (1987).
278. See Greg Johnson, New Twist on Testing Job Impairment, Phila. Inq., Mar. 22, 1990, at D19.
283. Johnson, supra note 278, at D19.
285. Maltby, supra note 3, at 121.[P]erformance testing is neither humiliating nor an invasion of privacy. It doesn't require the employees to strip from the waist down, the way urinalysis testing does. It doesn't require employees to urinate into a cup, the way urinalysis testing does. And it doesn't require an observer to watch them urinate to make sure they don't put foreign substances into their samples.Id.
286. Johnson, supra note 278, at D19. For example, one employee at the trolley company failed the test twice apparently because he had terminated his relationship with his fiancee prior to the drug test and was not in a sound state of mind. Id.
288. Maltby, supra note 3, at 121.
290. Currently, sixteen states have passed employment drug-testing legislation: Connecticut, Florida, Hawaii, Iowa, Louisiana, Maine, Maryland, Minnesota, Mississippi, Montana, Nebraska, North Carolina, Oregon, Rhode Island, Utah, and Vermont. 1 Zeese, supra note 1, § 1.05[3]. Also, five cities now have ordinances on drug testing: Atlanta, Georgia; Berkeley, California; San Francisco, California; Boulder, Colorado; and Houston, Texas. 1 id.
291. See, H.R. 5583, 174 Leg., 2d Sess. § 2 (1986); H.R. 2477, 175 Leg., 1st Reg. Sess. § 1 (1987). For an example of a liberal drug testing statute, see Utah Code Ann. §§ 34-38-1 to -15 (Michie 1988) (permitting drug testing in the workplace with no restrictions). Compare with a restrictive statute, Vt. Stat. Ann. tit. 21, §§ 511-520 (West 1987) (restricting employer's ability to require drug testing to situations where there is probable cause, where the employer has an employee assistance program available, and where the employee is not terminated for the first positive result).
292. Englade, supra note 13, at 25.
293. H.R. 5583 174 Leg., 2d Sess. § 2 (1986) provided in relevant part:
SECTION 2. Prohibitions on Urinalysis Testing
It shall be unlawful for any employer:
(1) directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any urinalysis test;
(2) to use, accept, refer to or inquire concerning the results of any urinalysis test of any employee or prospective employee;
(3) to discharge, dismiss, discipline in any manner, or deny employment or promotion to, or threaten to take any such actions against--
(a) any employee or prospective employee who refuses, declines, or fails to take or submit to urinalysis test; or
(b) any employee or prospective employee on the basis of any urinalysis test; or
(4) to discharge or in any manner discriminate against an employee or prospective employee because--
(a) such employee or prospective employee has filed any complaint or instituted any proceeding under or related to the act; or
(b) such employee or prospective employee has testified or is about to testify in any such proceeding; or
(c) of the exercise by such employed, on behalf of himself or others, of any right afforded by this act.
294. Englade, supra note 13, at 25. The bill was "the only one of its kind in the country." Id.
296. H.R. 2477, 175 Leg., 1st Reg. Sess. § 1 (1987). This amendment was proposed as an addition to Mass. Gen. L. ch. 149, § 19B (1992).
297. H.R. 2477, 175 Leg., 1st Reg. Sess. § 1 (1987) provided, in pertinent part:
It shall be unlawful, except in accord with regulations promulgated by the commissioner of labor and industries, for an employer or other person in authority (hereafter "employer") to require as a condition of employment or the receipt of any other benefit, that an employee, prospective employee or other person seeking a benefit (hereafter "employee") submit a sample of his urine, blood or other bodily fluid or tissue for analysis to determine consumption of drugs, including alcohol. Said regulations shall allow such testing only (1) by scientifically accurate means, (2) where the employer, pursuant to mandated procedures, determines there is probable cause, based on specific, objective facts and reasonable inferences drawn therefrom in light of experience, to believe that the employee's facilities are impaired on the job because of his consumption of such drugs, concerning which the employer has received no reasonable explanation, (3) where the employee is in a position such that the impairment presents a clear and present danger to the physical safety of himself or others, (4) where the employer provides the employee, at the employer's expense, the opportunity to have the sample tested or evaluated by an independent testing facility and (5) where the employer provides the employee with a reasonable opportunity to rebut or explain the results.
298. McGovern, supra note 12, at 1481.
300. Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 21 (N.J. 1992).
301. Richard J. Brightman, Employment-At-Will--An Employer May Randomly Drug Test an At-Will Employee in a Safety-Sensitive Position Without Violating Public Policy Which Protects the Employee's Privacy Interest--Hennessey v. Coastal Eagle Point Oil Company, 24 Seton Hall L. Rev. 483, 514 (1993).
* Dedicated with all my love to my family and Joe Beauregard, for everything they have done for me.