Employee Lawsuits: Invasions of Privacy

Drug testing, lie detectors and other forms of legal surveillance.

Drug Testing

Preventing illegal drug use has become a national concern and no segment of society has escaped. Studies have shown that drug usage is widespread in the population as a whole and this has had a definite impact on the workplace. Employees with drug problems are absent more often, have more accidents, use more sickness benefits, and file more worker's compensation claims than the average worker.

Many private employers have turned to drug testing to identify employees and applicants who are using drugs illegally. As testing of employees becomes more prevalent, however, the number of legal challenges to testing programs has increased. As mentioned above, constitutional limitations on unreasonable searches and seizures normally apply solely to employment testing implemented in the public sector. Even though testing is clearly a "search," the Fourth Amendment right to privacy does not apply to testing done by private employers who have voluntarily initiated drug testing without compulsion from a government agency. Most courts have been satisfied to allow state legislatures to regulate drug testing by employers.

Courts have intervened in situations where it has been alleged that the drug testing procedures implemented by the employer are unreasonable or offensive and violate the common law right of privacy. The privacy tort of intrusion may implicate both the reasonableness of collection procedures that accompany drug testing programs and the employer's reason for implementing testing. For example, in Borse v. Piece Goods Shop, Inc., a federal court of appeals in Pennsylvania said that an employer's drug testing program might intrude upon an employee's "seclusion" in at least two ways. First, the court concluded the manner of collecting the urine sample would implicate the employee's expectation of privacy, saying: "If the method used to collect the urine sample fails to give due regard to the employee's privacy, it could constitute a substantial and highly offensive intrusion upon seclusion." In particular, the court suggested that monitoring the collection of the urine sample to avoid adulteration could fall within the definition of an "intrusion upon seclusion" because it "involves the use of one's senses to oversee the private activities of another."

The court said that drug testing might also intrude upon an employee's privacy, because it can reveal a "host of medical facts about an employee, including whether she is epileptic, pregnant, or diabetic." The court concluded, therefore, that if an employer does not do a search in a "discrete manner" or if it reveals personal matters about the employee that are unrelated to the workplace, the search might be a tortious invasion of the employee's privacy. Finally, the court suggested that the proper standard for analyzing the legality of the drug testing program is to "balance the employee's privacy interest against the employer's business justification for the policy. Although the court said that it was not adopting a Fourth Amendment standard for assessing the reasonableness of the employer's search, but rather would require the invasion of privacy to be "substantial and highly offensive to the reasonable person," the balancing test proposed by the court of appeals was very similar to the standard that is applied in public sector cases.

A more appropriate standard for determining whether a testing program is tortious would require the court to focus on the issue of offensiveness and not simply weigh the employee's privacy interest against the employer's business justification. Because drug testing only reveals that an employee has recently used drugs and not whether he is impaired or "under the influence" of drugs, employees will often claim that the testing is an unreasonable or offensive invasion of privacy because it is an intrusion into their off-duty private affairs. Additionally, an employer who zealously tries to prevent contamination of the urine specimen by using direct observation of urination during collection could also be liable for an invasion of privacy.

There are very few courts that have addressed the dual issues of whether the purpose of drug testing and the observation of urination during the collection process would amount to a tortious intrusion into an individual's right of privacy. In one case out of Michigan, certain security guards of the employer were discharged after their urinalysis proved positive for the use of marijuana. The security guards claimed that the testing was an invasion of privacy, because they had the right to keep their off-duty illegal drug use a private matter, unless the employer could show that it affected their work performance. A federal court disagreed and found that the right to be free from intrusion is not absolute. The court said that the company had a significant interest in ensuring that their security officers were free from drug use. The court also found no merit to the employees' allegations that the method used by the company to secure the test results was objectionable to the reasonable person. The court said, "Each plaintiff admitted in deposition testimony that the urine sample was extracted in private with two male managers from the security department outside the bathroom stall to maintain the chain of custody of each sample." The court thus found no intrusion into the privacy rights of the employees from a testing program that did not include direct observation of urination.

The legitimacy of observed collection of urine samples under a common law right of privacy analysis may depend on the employer's reasons for requiring direct observation. Where a particular employee has previously presented an adulterated urine sample, direct observation by an employer representative may be justified. It appears clear, however, that collection procedures that do not require observation of urination will withstand an invasion of privacy challenge. In general, drug testing by private employers will likely be found to be reasonable business conduct and not offensive to a reasonable person. This is especially true where the employer is doing applicant screening or is testing employees only when there is an objective individualized suspicion that a specific employee is using drugs. Random testing is more problematic and may require a business justification to withstand an invasion of privacy challenge. Random testing programs have been upheld, however, where the employees being tested have duties implicating safety concerns or when the employees hold security-sensitive positions involving the property of the employer or the confidentiality of the employer's business operations.

Surveillance of Employees in Workplace

Employers can have valid reasons for wanting to monitor their employees' behavior. For example, a retail employer who is experiencing an unexplained inventory shortage may decide to install closed circuit television in his warehouse to determine whether an employee theft problem exists. Video surveillance rooted in such business justification will undoubtedly be upheld as a legal exercise of an employer's rights. Similarly, closed circuit television monitoring to increase efficiency on a production line would probably also be legal regardless of any detrimental effect the monitoring may have on employee morale.

There may, however, be instances when electronic surveillance will violate federal law. For example, an employer experiencing union organizing may not use a video camera to see which employees show up at a union meeting. Also, a unionized employer may have a duty to bargain with the employees' collective bargaining representative before implementing closed circuit television monitoring in the workplace.

Television monitoring in the workplace can also be a tortious invasion of privacy. As explained previously, liability usually turns on the issue of whether the employees have a reasonable expectation of privacy in any particular areas in the workplace. If they have no reasonable expectation of privacy, surveillance by the employer will not be offensive to a reasonable person. There are actually very few areas in the workplace that can be deemed to be such a private place for the employees that monitoring would be forbidden. An obvious example, however, would be employee restrooms. Under most circumstances, an employer would have little business justification for installing cameras in the bathrooms.

Telephone Monitoring

Some employers may have a need to monitor employee telephone calls, either to investigate misconduct or criminal activity, or to ascertain the quality of customer service being provided by their employees. Telephone monitoring is subject to much tighter legislative restrictions than video surveillance, however, and an employer can face federal or state penalties if the telephone monitoring system is not implemented properly. A decision by the Federal Court of Appeals for the Eighth Circuit illustrates the danger in conducting unrestricted telephone monitoring.

The court of appeals affirmed a district court's award of $40,000 to two employees of an Arkansas liquor store because the owners of the store had intercepted and taped their personal telephone calls in violation of the Omnibus Crime Control and Safe Streets Act of 1968. Title III of the Omnibus Crime Control Act (also known as the Electronic Communications Privacy Act) makes it unlawful for any person to willfully intercept, use, or disclose any "wire, oral, or electronic communications." The interception of telephone conversations is prohibited activity under the Act, unless such conduct comes within one of the exceptions to the statutory prohibitions.

For example, no violation of federal law exists if the employee consents to the telephone monitoring. Further, an exception exists that allows employers to intercept telephone calls made "in the ordinary course of business." This exception does not require the consent of the participants to the intercepted conversation, but the employer is obligated to cease listening to the conversation as soon as it is determined that the nature of the call is personal.

In the Arkansas case, the employer began secretly taping telephone calls to and from the liquor store after a break-in at the store resulted in the loss of $16,000. The owners suspected that one of the employees had been involved in the theft. The taping was continuous, however, and a series of personal calls between the employee and a man with whom she was having an extramarital affair were intercepted. Many of the conversations were sexually provocative in nature and included discussions of the couple's sex life and other personal matters between the two lovers. The court held that the vast majority of the phone calls were not business-related and awarded damages to the plaintiffs.

Because of the civil and criminal penalties that can be assessed for illegal eavesdropping on employee conversations and the privacy concerns that are raised by video taping employee conduct, employers are advised to proceed very carefully before implementing an employee monitoring program. Employers should check their monitoring and surveillance programs against the prohibitions set forth in the federal statute and any state laws that may be applicable.

Lie Detector Tests

One technique which, until recently, was used quite frequently by employers but which also gave rise to invasion of privacy claims is the polygraph or lie detector test. The test was viewed by employers as a useful tool for gathering information about prospective employees or for investigating misconduct by incumbent employees. Applicants for employment were not successful in bringing invasion of privacy claims to prohibit polygraphs. Courts almost uniformly held that an individual who was seeking to initiate an employment relationship with an employer did not possess a sufficient expectation of privacy to outweigh the employer's business justification for gathering information about the prospective employee.

Employees with some tenure with their employer have been more successful in raising privacy concerns regarding a polygraph, especially when the questions posed to them during a lie detector test strayed into unacceptable personal areas. For example, in one case, an employer was held liable for defamation and invasion of privacy. During a polygraph test prior to discharge, the employer asked the employee about drug use outside of work, among other questions. The employee was then fired for drug abuse. The employer told other employees that the plaintiff's use of drugs was the cause for the discharge, without explaining that there were other reasons contributing to the decision. A jury awarded the plaintiff $448,000 in damages.

The polygraph test is now used infrequently by employers. This is primarily because of the passage of the Employee Polygraph Protection Act of 1988. This law prohibits the use of the polygraph in the workplace with several limited exceptions. Although the title of the law refers to the polygraph, the law also restricts the use of voice stress analyzers or any other mechanical or electrical device that is used for the purpose of rendering a diagnostic opinion regarding the honesty of an individual.

In performing a test under the federal statute, the employer must strictly follow several detailed procedures. Initially, the employee must be provided with a written statement from the employer identifying the specific economic loss or injury that is the subject of the investigation, indicating that the employee had access to the property, and describing the basis of the employer's reasonable suspicion that the employee was involved in the incident. The employee must also receive written notice of the employee's right to consult with legal counsel or a union representative prior to taking the examination. Prior to the test, the employee must sign a form acknowledging that he or she understands that he or she cannot be required to take the test, and that any statements made during the test may constitute evidence upon which an adverse employment decision may be made. In addition to the above notices, the employee must receive all questions to be asked during the examination in advance. The examiner may not ask questions other than those shown to the employee in advance. The federal Act also prohibits the examiner from asking degrading or intrusive questions or inquiring into the religious beliefs, racial bias, political views, sexual behavior, or union activities of the employee. The employee retains the right to terminate the test without prejudice at any time.

In addition to federal law, many states have passed additional restrictions on the use of polygraph tests. Even in those states where polygraph testing is still not completely prohibited, the statutory procedure that now must be followed under federal law in giving a lie detector test is so complex and time-consuming that the effort may not be worthwhile.