What’s On Their Minds: Private Sector Employer Drug Testing and Employee Invasion of Privacy. Donna L. Lunsford et al. v. Sterilite of Ohio, LLC et al.

By Marianna Bettman on February 3, 2020

On August 26, 2020, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“So could an employer say to an at-will employee, that you have to supply a urine sample in the center of the workplace with everyone watching?”

Justice DeWine, to counsel for Sterilite

“Why is direct observation necessary?”

Justice Donnelly, to counsel for U.S. Healthworks

“Are we to say that before any employer can employ direct observation method for collecting of samples there has to be probable cause or reasonable suspicion of the individual that is being tested?”

Chief Justice O’Connor, to counsel for the employees

On January 28, 2020, the Supreme Court of Ohio heard oral argument in the case of Donna L. Lunsford, et al. v. Sterilite of Ohio, LLC, et al., 2018-1431. At issue in the case is whether allegations of the direct observation of an at-will employee’s genitals during a random drug screening state a claim for invasion of privacy.

Case Background

Plaintiffs-Appellees Donna Lunsford, Peter Griffiths, Adam Keim, and Laura Williamson (collectively, the “Employees”) are current or former employees of Defendant-Appellant Sterilite. Sterilite has a substance abuse policy that provides for employee testing either at random or when there is reasonable suspicion that an employee may be impaired. Beginning in October of 2016, Sterilite began using a direct observation method of testing, in which each employee was accompanied by an individual of the same sex to a restroom designated exclusively for collecting urine samples. While in the restroom, the person accompanying the tested employees visually observed the employees’ genitals and production of the urine sample. Defendant-Appellant U.S. Healthworks completed the collection at the direction of Sterilite.

Lunsford, Griffiths, Keim, and Williamson were all subject to this direct observation method of collection, which was disclosed to each of them immediately prior to conducting the test. Direct observation was not disclosed in the substance abuse policy. Each employee signed a consent and release form before being tested, but again, this form did not disclose direct observation as a method of collection. After the respective tests, Sterilite terminated Keim and Williamson because they failed to produce a urine sample within two and a half hours. Lunsford and Griffiths were able to supply samples, but Lunsford alleges that she was made particularly uncomfortable because the test forced her to show genital scarring from a surgical procedure. Lunsford and Griffiths are still employed by Sterilite.

The Employees filed a complaint in December of 2016 in the Stark County Court of Common Pleas, alleging Invasion of Privacy, Wrongful Discharge in Violation of Public Policy, Failure to Remit Minimum Wages, Failure to Remit Wages, and Breach of Contract. They sought declaratory judgment, injunctive relief, and class certification. Sterilite and U.S. Healthworks filed a motion to dismiss for failure to state a claim pursuant to Rule 12(B)(6), which the trial court granted as to Invasion of Privacy, Wrongful Discharge, Declaratory Judgment, Injunctive Relief, and Class Certification. The employees voluntarily dismissed their remaining claims and appealed.

The Appeal

In a unanimous opinion the Fifth District Court of Appeals reversed. Although the Employees submitted four assignments of error, the court limited its analysis to the determination of whether the Employees stated a claim for invasion of privacy, reasoning that it was a common element of each assignment of error. The common law tort of invasion of the right of privacy includes the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. This type of intrusion upon seclusion privacy claim does not require that Sterilite and U.S. Healthworks exposed the Employees’ private matters to the public, but rather only that the Employees had a reasonable expectation of privacy into which Sterilite and U.S. Healthworks wrongfully intruded.

The appeals court agreed that the Employees have a reasonable expectation of privacy in the exposure of their genitals. Although Ohio courts have long upheld an employer’s right to require urine samples, courts have not held that the direct method of observation used here does not violate privacy rights, and indeed, have considered the reasonableness of particular test procedures to be fact findings. While employees may have a reduced expectation of privacy in this context, that does not mean this expectation of privacy is completely eliminated. Courts in Ohio and across the country have repeatedly reaffirmed individuals’ reasonable expectation of privacy in regard to the exposure of their genitals, and no case states that as a matter of law direct observation in an employment context does not violate this expectation. The Employees have at least stated a claim for invasion of privacy, which requires factual determinations on the particular methods at issue on remand.

Sterilite and U.S. Healthworks appealed. Read the oral argument preview here.

Sterilite’s Proposition of Law Accepted for Review

Employees of a private employer in the State of Ohio do not have a reasonable expectation of privacy in whether they are reporting to work under the influence of drugs or whether they are cheating on a drug test. Absent allegations that the manner of testing used by a private employer to obtain this information is not job-related and consistent with business necessity, an at-will employee cannot maintain an action against her employer for invasion of privacy.

U.S. Healthworks’ First Proposition of Law Accepted for Review

Requiring employees to provide a monitored urine sample to independent laboratory personnel as part of an employer’s random drug testing policy does not constitute an invasion of privacy of the employee’s common law right to privacy as a matter of law.

U.S. Healthworks’ Second Proposition of Law Accepted for Review

Ohio law does not recognize a cause of action for invasion of privacy against independent third-party laboratories or their trained staff who are hired to collect and test urine samples as part of a drug testing policy between an employer and employee by the direct observation method of collection when the employee signs a consent authorizing any testing necessary to determine the presence or level of drugs.

Key Statutes and Precedent

Housh v. Peth, 165 Ohio St. 35 (1956) (“The invasion of the right of privacy may be defined also as the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.”)

Sustin v. Fee, 69 Ohio St. 2d 143 (1982) (“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”)

Strutner v. Dispatch Printing Co., 2 Ohio App. 3d 377 (10th Dist. 1982) (“‘Wrongful’ does not require that the intrusion itself be wrongful in the sense that there is no right to make any intrusion. Rather, ‘wrongful’ may relate to the manner of the making of the intrusion as was the case in Housh.”)

Feliciano v. City of Cleveland, 661 F. Supp. 578 (N.D. Ohio 1987) (urinalysis by direct observation of police recruits by senior officers in a group setting violates the recruits’ reasonable expectations of privacy under the Fourth Amendment.)

Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) (“[T]he collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable … .”)

Haller v. Phillips, 69 Ohio App. 3d 574 (10th Dist. 1990) (“[The intrusion] must be of such a character as would shock the ordinary person to the point of emotional distress.”)

Groves v. Goodyear Tire and Rubber Co., 70 Ohio App.3d 656 (8th Dist. 1991) (“The courts appear to be supportive of employers’ attempts to create a safe working environment by holding that drug-testing does not constitute an invasion of the employees’ common law right to privacy.”)

Norris v. Premier Integrity Solutions, Inc., 641 F.3d 695 (6th Cir. 2011) (direct observation method of testing does not constitute an invasion of privacy in a criminal, pretrial release program.)

Turner v. Shahed Ents., 2011-Ohio-4654 (10th Dist.) (“To establish a wrongful intrusion, a plaintiff must demonstrate that she had a reasonable expectation of privacy in the area allegedly intruded.”)

At Oral Argument

Arguing Counsel

Daniel J. Rudary, Brennan, Manna & Diamond, LLC, Akron, for Appellant Sterilite of Ohio, LLC

Joshua Milkowski, Weston Hurd LLP, Cleveland, for Appellant U.S. Healthworks Medical Group of Ohio, Inc.

S. David Worhatch, Law Offices of S. David Worhatch, Stow, for Appellees Donna Lunsford, Peter Griffiths, Adam Keim, and Laura Williamson

Sterilite’s Argument

The issue as properly framed in this case is not, as the 5^th district held in its opinion, that at-will employees have a reasonable expectation of privacy in the act of urination generally. No one disputes that they do. The question is whether at-will employees have a reasonable expectation of privacy in the act of furnishing a urine sample for a drug test.

At-will employees do not have a reasonable expectation of privacy in whether they are reporting to work under the influence of drugs or are cheating on a drug test. But the employer has a legitimate business interest in ensuring the integrity of the test, and the method Sterilite used was strictly limited that interest. If the employer has a legitimate interest in conducting the test to begin with, it certainly has a legitimate interest in ensuring the integrity of the test.

Employers do not need to have reasonable suspicion or probable cause to select their at-will employees for these tests. Although these concepts permeate the employees’ complaint, this is not a Fourth Amendment case. Fourth Amendment principles simply do not apply in the context of private, at-will employment. And even the Fourth Amendment does not require a less intrusive method.

Sterilite switched to direct observation around October 2016. This new policy was uniformly applied to everyone in the plant, not just to these appellees. None of the appellees in this case was known to have made any contemporaneous objection when they were selected for the test or as they furnished a urine sample. None refused to take the test. A number of jurisdictions across the country have held that the very act of furnishing a urine sample precludes any objection any employee might have to the nature or the manner of the test.

Affirming the 5^th district’s judgment will send the message to Ohio employers that no matter how carefully, how professionally, or how privately a direct observation urinalysis screening is conducted, the very act of performing that test will give rise to unlimited lawsuit exposure by at-will employees. That judgment must be reversed.

U.S. Healthwork’s Argument

U.S. Healthworks was hired by Sterilite to perform this drug testing procedure. Direct observation is the most effective method of ensuring that the sample will not be adulterated. There is no obligation to perform a less intrusive method.

U.S. Healthworks went out of its way to make this process as easy as possible, and its people were completely professional. It provided a single same sex monitor in a room designated exclusively for urine, to make sure the sample was not adulterated, tampered with, or substituted. There simply was no wrongdoing by U.S. Healthworks in this case.

Employees’ Argument

Employers have no right nor obligation to perform a direct observation test. Sterilite had a longstanding policy of collecting the urine specimens in a certain way, and then suddenly, without notice to any of the employees, the company changed to direct observation. The employees in this case found out after they had already signed the consent form that they would be subject to direct observation. Sterilite had no business making a decision arbitrarily, without notifying the employees ahead of time, that every employee would be subject to direct observation.

None of the employees in this case chose the person who watched them. If they were patients in a doctor’s office or a clinic, their consent would have been required not only for the procedure that was going to be followed, but also the person that was going to perform it.

The consent form signed in this case does not cover this situation. Consent must be knowing and voluntary. The form says nothing about the method of collection. It only covers agreement to be tested, not the manner of collection. The direct observation method was not disclosed before the forms were signed. Since there was no notice given to these employees, there can be no knowing and voluntary waiver of anything.

None of the employees in this case knew this test was going to be conducted in a different way than usual. They were told that if they didn’t submit, they were fired. The lead plaintiff in particular, who has a problem with permanent genital scarring, was especially uncomfortable having another woman looking at that. A jury, not the trial judge, should have the right to decide whether or not direct observation offends a person of ordinary sensibilities. At-will employees do not leave their dignity at the door.

There is a great disparity of power here. And while the Fourth Amendment will not protect the employees here, that puts the onus on this court to make sure at-will employees are protected. The direct observation method in this case was applied indiscriminately and arbitrarily across the board without there being any evidence indicating that there had been any compromise or even a threat to compromise the samples. A number of factors, listed in appellees’ brief, could be considered in determining whether it was reasonable to deploy the direct observation method in a particular circumstance.

What Was On Their Minds

Sterilite’s Policy

Was this a uniform policy for all the employees of this company, asked Chief Justice O’Connor? Were the four plaintiffs the first to have this test under this new observation policy?

Was Sterilite required to consider or to use a less intrusive means, asked Justice Stewart? What difference does it make that a sex-specific medical technician is used? Is the employee’s privacy protected if the observer is a medical lab person as opposed to another employee? She noted the observer wasn’t a gynecologist or a urologist.

Why is direct observation necessary, asked Justice Donnelly? Can’t someone be patted down to make sure something isn’t being brought in? He commented that even airplane pilots aren’t subject to direct observation.

Boundaries of Drug Testing

Could an employer say to an at-will employee, that you have to supply a urine sample in the center of the workplace with everyone watching, asked Justice DeWine?

Doesn’t the case law say there is no legal obligation to use a less intrusive method, asked Chief Justice O’Connor?

Employer’s Business Interest

What is the business interest here in the way these samples were collected, asked Justice Stewart? Why does employment-at-will matter? What if this were an employment contract provision?

Isn’t adulteration of samples across the boards a routine occurrence when people are taking drug tests, asked Chief Justice O’Connor?

Consent to What, Exactly

Was the objection to the test or to the way it was administered, asked Justice Stewart? Was there any objection to providing a urine sample?

Didn’t agreeing to consent to any testing constitute a waiver of any objections or claims, asked Justice Fischer? What about the employees’ failure to object as this was occurring?

Individualized Suspicion

Was there prior information about these particular employees that would indicate that they would not supply a urine test under honest circumstances, asked Justice Stewart? Why couldn’t they just provide the urine specimen in the privacy of a restroom and have someone inside in the restroom waiting for them to come out of the stall? Had they falsified a test in the past? Had any of them been accused of using drugs in the past? Is there anything other than we’re going to watch you take it?

Is there any evidence that could be presented that would allow a direct observation method, asked Justice French? Would such evidence have to be specific to the person the test is being administered to? What if they just said, based on the industry, based on what we’re seeing, this is the only way we’re going to get a good test?

Would appellees’ counsel agree this is not a Fourth Amendment case, asked Chief Justice O’Connor (yes, he did). Then why is reasonable suspicion necessary? Is the court to say that before any employer can employ direct observation method for collecting of samples there has to be probable cause or reasonable suspicion of the individual that is being tested?

How it Looks from the Bleachers

To Professor Emerita Marianna Bettman

Alas, my notorious plaintiff’s heart feels this is going to be a win for the defendants, probably 5-2. I agree with my student contributor Carson Miller that other than Justice Stewart, and to a lesser extent Justice Donnelly, there was a surprising lack of outrage over what seemed to me an offensive invasion of privacy implemented with no notice to employees. While the Fourth Amendment may not apply, I found the lack of any particularized suspicion troubling, but a majority of the justices didn’t seem to. I think the majority will either go with consent, since the form said the employee agreed to any testing (Justice Fischer particularly seemed persuaded by this) or will find a legitimate business interest of the employer, carried out totally professionally by U.S. Healthworks, in the case strictly as an agent.

I taught a lot about the privacy torts when I taught advanced torts, and the Restatement definition of this one, intrusion upon seclusion, is would the intrusion be highly offensive to a reasonable person. I think most jurors would think so.

Stylistically, the lead lawyers could not have been more different. Mr. Rudary, for Sterilite, got smoother and silkier, while Mr. Worhatch, for the employees, got angrier and angrier, especially as no one seemed to be sharing his sense of outrage.

To Student Contributor Carson Miller

I was surprised at the lack of outrage from the bench in this case—something that I think Mr. Worhatch for the Employees let influence his increasingly aggressive tone in oral argument. As shocking as the facts appear to be, by my count only Justices Stewart and Donnelly seemed to really question Sterilite on the need for some articulable suspicion to conduct direct observation in an at-will employment setting.

Justice DeWine—and, I think, Chief Justice O’Connor—focused much more on the distinction between the facts here and a policy requiring open specimen production in front of colleagues. Justice Fischer seems to consider the waiver in the case to have constituted consent. Both of these lines of questioning do not appear to bode well for the employees. Just counting heads, I think Sterilite wins this one.