Collective and Individual Approaches to Protecting Employee Privacy: The Experience with Workplace Drug Testing

• Author: Pauline T. Kim
• Position: Professor, Washington University School of Law, St. Louis
• Pages: 1009-1034

Page 1009

Professor, Washington University School of Law, St. Louis. I would like to thank the Louisiana Law Review for organizing and sponsoring this symposium on workplace privacy. I benefited greatly from the comments I received at the symposium. Earlier incarnations of this Comment were presented at faculty workshops at Washington University School of Law, Vanderbilt University Law School, and the Law and Society Association's annual meeting. I am grateful for the helpful comments of participants at each of those venues, as well as those of Marion Crain and Margo Schlanger. Valuable research assistance was provided by Tom Clark and Jason Retter.

I Introduction

The latter half of the twentieth century saw a marked shift in the form of legal regulation of the workplace. At mid-century, unions were at the height of their power in terms of membership and bargaining strength. The dominant legal model for governing workplace relations was the one put into place by the Wagner Act in 1935,¹ a model promoting collective bargaining. Since then, however, union strength has steadily eroded, and with it, collectively bargained agreements as a source of rights for workers.² Paralleling this decline has been the growth of government mandates creating rights in the individual worker.³ Page 1010

This shift-from collective bargaining to individual employee rights as the primary source of legal regulation-has been both applauded and decried by observers and legal scholars. Some commentators have argued that the shift is a positive one, claiming that government mandated minimum standards more reliably protect workers' interests while avoiding the inefficiencies and costs of granting monopoly status to unions.⁴ Others lament the decline of collective bargaining, asserting that unions are necessary for effective protection of individual workers' interests and arguing that the participatory governance ideals inherent in the scheme of collective bargaining have independent value.⁵

This Comment asks what difference it makes to think about workers' rights under a collective as opposed to an individual rights model in a particular context: that of protecting employee privacy. More specifically, it undertakes an examination of the range of disputes between employers and employees over workplace drug testing in the late 1980's and the 1990's, focusing on the differences between cases brought with union involvement and those brought by individual workers acting alone. In doing so, it asks how collective forms of disputing about drug testing differed from individual approaches, and whether these differences affected the ability of workers to assert and protect their interests in personal privacy.

The law review literature has focused primarily on the legality of workplace drug testing, emphasizing a handful of highly salient cases. This Comment takes a different approach. It looks beyond the major cases to a broader range of disputes about drug testing. The purpose of this Comment is not to argue for or against the legality of drug testing, but rather to understand how collective approaches to contesting employer policies looked different from individual rights based claims. The examination here is exploratory rather than definitive, as it is based primarily on publicly available court and National Labor Relations Board (NLRB) decisions, which may not be representative of all disputes.⁶ What it suggests is that unions were far more likely than individual litigants to bring broad-based challenges intended to Page 1011 benefit the workforce as a whole; however, their ability and willingness to do so appeared to depend heavily on both the legal and the bargaining environment. Over time, union-initiated challenges increasingly focused on the application of drug testing policies to particular workers rather than class-wide challenges. Union involvement also influenced how these challenges were framed in legal terms. Disputes channeled through the collective bargaining system emphasized workers' interests in job security, while an individual rights approach more often framed the issue in dignitary terms, alleging claims such as invasion of privacy, defamation or intentional infliction of emotional distress. And although individual litigants occasionally obtained damage awards, they primarily brought after-the-fact challenges to the implementation of drug testing policies rather than seeking prospective, class-wide relief.

II The Expansion of Workplace Drug Testing

Drug testing provides a useful case study for exploring the differences between collective and individual approaches to protecting employee privacy because its implementation followed a fairly clear trajectory. Prior to the mid-1980's, employee drug testing was a non-issue because only a trivial proportion of the workforce was subjected to such testing.⁷ Then, with President

Ronald Reagan's announced War on Drugs in the mid-1980's, the use of urinalysis drug testing in the employment setting exploded. In 1986, President Reagan issued Executive Order No. 12564, declaring a "drug-free federal workplace" and directing the head of each federal agency to "develop a plan for achieving the objective of a drug-free workplace" and to "establish a program to test for the use of illegal drugs by employees in sensitive positions."⁸

Within a short period of time, drug testing became a standard feature of federal government employment. Following President Reagan's Executive Order, the use of drug testing in the private sector also expanded rapidly. In 1987, 21.5% of major U.S. firms surveyed reported that they conducted some form of employee Page 1012 drug testing.⁹ This figure trended steadily upward, reaching a peak of 81.1% of large firms surveyed in 1996.¹⁰ Some of these firms were compelled to adopt drug testing programs because of new federal regulations mandating testing in industries such as railroads and trucking. Many others began to implement drug testing programs voluntarily, moved by the example of the federal government or the exhortation of political leaders.

The dramatic expansion of drug testing in the workplace did not occur without controversy. The growth of urinalysis testing of employees provoked both legal challenges and critical commentary. Critics of workplace drug testing framed their concerns primarily in terms of the threat to personal privacy and autonomy, identifying a number of ways in which the process of urinalysis drug testing infringed upon workers' interests. ¹¹ First, they argued that the process of collecting urine samples implicates workers' interest in their bodily privacy. As observed by Charles Fried, "the excretory functions are shielded by more or less absolute privacy, so much so that situations in which this privacy is violated are experienced as extremely distressing, as detracting from one's dignity and self esteem."¹² Because of concerns about adulterated samples, some testing protocols call for monitoring or direct observation of the act of urination, a requirement that obviously increases the intrusiveness of the procedure.

Second, drug testing may infringe workers' interests in maintaining the privacy of sensitive medical information. Because the metabolites of certain prescription or over-the-counter drugs are similar to those produced by illegal drug use, those tested are typically asked to list all medications taken in the recent past to assist the testing personnel in interpreting the results of a positive Page 1013 drug screen.¹³ Such disclosures, as well as the chemical testing itself, may reveal a great deal of information about the health and medical condition of an individual. The employee's interest in controlling sensitive medical information may also be implicated if the employer or testing laboratory does not maintain adequate control over the information in order to maintain its confidentiality. Finally, drug testing may reveal information about an employee's off-duty activities. Urinalysis testing detects drug metabolites- biochemical products produced by the body in response to certain substances-that remain present in the body well past the time of exposure.¹⁴ As a result, an individual may test positive for certain drugs days or even weeks after exposure, long after any psychoactive effects have disappeared.

Workplace drug testing raised other concerns beyond privacy for employees and their advocates. Much of the early debate focused on the accuracy of the tests and how positive results should be interpreted. Commentators pointed out that the validity of test results might be compromised by sample adulteration or poor laboratory quality, and that false positives were inevitable.¹⁵

The problem of false positives is exacerbated when the base rate of actual positives in the tested population is low-as is likely when employees in a largely drug-free workplace are tested randomly rather than on the basis of individualized suspicion.¹⁶ Moreover, positive test results require interpretation. The presence of drug metabolites might indicate illegal drug use or exposure to a legal substance that produces similar metabolites in the body. And a positive result does not indicate when and how much of a drug was ingested or whether the individual was impaired.¹⁷ The implementation of these policies also raised concerns about increased employer power. Because drug testing is a coercive procedure that can be used to justify discharge, an employer could deploy it in a manner that discriminates against disfavored groups, including racial minorities or union...