Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Being tested for drugs has become a fairly accepted part
Speaker 1: of the workplace and fodder for a lot of jokes
Speaker 1: in movies and TV shows. Almost twenty five years ago,
Speaker 1: in the sign Fell Show, Elaine tested positive for opium
Speaker 1: because of the poppy seeds in her muffins. So she
Speaker 1: got Jerry's mother to help her with the next year
Speaker 1: in test. What are you gonna do in there? What
Speaker 1: am I going to do in the bathroom? I've gotta
Speaker 1: do me a favor, Elaine. I really hold on a second,
Speaker 1: Mrs Slinkfeld, I need your sample. You want my urine.
Speaker 1: I need a clean urine sample from a woman. As
Speaker 1: a result of your test being free of opium, I
Speaker 1: am reinstating you. But that's no laughing matter too many employers.
Speaker 1: Some have taken steps to ensure against tamper and with
Speaker 1: urine specimens, including having someone watch employees urinate. Embarrassing to
Speaker 1: be sure, But is it an invasion of privacy? Ohio's
Speaker 1: top court says it's not. By a closely divided four
Speaker 1: to three vote, the Ohio Supreme Court dismissed the cases
Speaker 1: of employees who sued their company for invasion of privacy
Speaker 1: after they were required to undergo a monitored urine test.
Speaker 1: Joining me is employment law expert Anthony on cd A,
Speaker 1: partnered Proscauer rose Tony. How did the court deal with
Speaker 1: the right to privacy argument? For A couple of things
Speaker 1: become very clear early on in the case, and one
Speaker 1: is that the right to privacy, which is an amazingly
Speaker 1: powerful right, varies surprisingly enough from jurisdiction to jurisdiction. There
Speaker 1: is no overarching federal constitutional right to privacy, at least
Speaker 1: not one that appears expressly in the United States Constitution.
Speaker 1: Some opinions have interpreted there to be privacy like rights
Speaker 1: in the Constitution, but there's not the word privacy, and
Speaker 1: there isn't even in some respects and argument that the
Speaker 1: actual per se right to privacy this at least expressly
Speaker 1: stated in the U. S Constitution. That's also true at
Speaker 1: the state level, and you can see in this opinion
Speaker 1: early on that the employees cited some cases from some
Speaker 1: other jurisdictions, including my state, for example, California, and the
Speaker 1: Ohio Supreme Court had no difficulty at all distinguishing and
Speaker 1: dismissing any consideration of those cases, because, for example, the
Speaker 1: California case involved a right to privacy that is enshrined
Speaker 1: in the California Constitution. In fact, Article one, Section one
Speaker 1: of the California State Constitution guarantees the people the state
Speaker 1: of California a right to privacy. Ohio, by comparison, does
Speaker 1: not have such an expressed right to privacy, and that
Speaker 1: was a very important lynch pin of this decision. What
Speaker 1: about the theory in the opinion that the employees had
Speaker 1: consented to the drug tests, despite the employees arguing that
Speaker 1: their consent wasn't voluntary because they could be fired for
Speaker 1: refusing to take the test. What the majority of this
Speaker 1: court said, and it was a fourd to three opinions,
Speaker 1: with the Chief Justice, by the way, being in the descent.
Speaker 1: What the majority said was that although the written disclosure
Speaker 1: form that the employee sign did not state that it
Speaker 1: would be a so called direct observation drug test, meaning
Speaker 1: that their genitals could be seen by the person who
Speaker 1: was making sure that the drug test was taken correctly,
Speaker 1: the form didn't say that. However, once they arrived at
Speaker 1: the testing facility, they were told that, and obviously before
Speaker 1: they actually were subjected to the test, they knew what
Speaker 1: was going to happen, and the fact that they continued
Speaker 1: on with the test and didn't just exit the building,
Speaker 1: from the majority's point of view, was consent. Now. That
Speaker 1: was questioned, of course by the descent, who said, well,
Speaker 1: if it was consent, it was compelled consent because the
Speaker 1: employees new or certainly believed that if they refused to
Speaker 1: take the drug tests in the way that it was
Speaker 1: being administered, they could and probably would lose their jobs.
Speaker 1: And so the compulsion elements was what the descent focused on.
Speaker 1: But from the majority standpoint, there actually was consented. The
Speaker 1: descent also said that an at will relationship doesn't allow
Speaker 1: someone to commit intentional torts. So the descent here felt
Speaker 1: that there was a violation of privacy or was it
Speaker 1: something else. They did say that, they said that there
Speaker 1: was a violation of privacy, and even the majority did
Speaker 1: concede that in an employment at will situation, which basically
Speaker 1: means that an employer can terminate the employment for any
Speaker 1: reason for so called good reason, bad reason, or no
Speaker 1: reason at all, and so can the employee leave the
Speaker 1: employment for any reason at all. That's what an employment
Speaker 1: at will relationship is. The majority conceded that there are
Speaker 1: some exceptions to that, including, for example, filing a worker's
Speaker 1: comp claim, or filing a discrimination claim, or saying that
Speaker 1: you've been harassed or discriminated against contrary Title seven or
Speaker 1: to a state anti discrimination law. You can't be terminated
Speaker 1: for having done any of those things, even if you
Speaker 1: are an at will employee. And so in this case,
Speaker 1: what the descent is saying is terminating somebody in the
Speaker 1: context that occurred here, which involved said the descent, an
Speaker 1: invasion of privacy is like one of those exceptions, meaning
Speaker 1: that it should be something that is a carve out
Speaker 1: from the employment at will rule. The majority, on the
Speaker 1: other hand, felt the other way and made the determination
Speaker 1: that if you're an employee at will, you can be
Speaker 1: compelled to subject yourself to this kind of testing, because essentially,
Speaker 1: the reasoning of the majority is that the power to terminate,
Speaker 1: which the employer had to do at will, includes the
Speaker 1: power to compel somebody to subject himself or herself to
Speaker 1: such testing. Is this in line with what where it's
Speaker 1: in other states have ruled, or does it depend on
Speaker 1: the state law it's going to depend on the state law,
Speaker 1: and it certainly was teased out at the beginning of
Speaker 1: this opinion where the employee cited privacy protection cases from
Speaker 1: other jurisdictions, and the majority distinguished and indeed ignored basically
Speaker 1: those other state law cases on the ground that Ohio
Speaker 1: does not have in its constitution a guarantee of a
Speaker 1: right to privacy, and in fact, there's also not even
Speaker 1: a statutory right to privacy in the state of Ohio.
Speaker 1: There is what the majority somewhat dismissively referred to as
Speaker 1: a judge made right to privacy which arises in the
Speaker 1: common law, but that has never been placed either in
Speaker 1: the Ohio State Constitution or in the Ohio statutes. And
Speaker 1: so that's really the original issue here, I think, is
Speaker 1: that the people of the state of Ohio should, when
Speaker 1: the time comes, try to get a right to privacy
Speaker 1: in shrines somewhere, either in the constitution or in the
Speaker 1: state books, because right now there isn't any expression of
Speaker 1: the right to privacy in the state of Ohio. And
Speaker 1: that's not that uncommon, that is relatively common throughout the
Speaker 1: fifty states. So just to be clear, some courts in
Speaker 1: states that have rights to privacy have ruled that having
Speaker 1: someone watch you give a urine sample is an invasion
Speaker 1: of privacy. Correct. Again, there was a California drug testing
Speaker 1: case that was cited by employees in this case, so
Speaker 1: called Wilkinson case, and that was ignored by the Ohio
Speaker 1: State Supreme Court on the ground that California, unlike Ohio,
Speaker 1: does have an express right to privacy in its state constitution.
Speaker 1: It's and it's an Article one, Section one of the
Speaker 1: California State Constitution. There are other ways to ensure that
Speaker 1: the urine sample is authentic, like having someone dressing a gown,
Speaker 1: different things that they can do. Short of this, it
Speaker 1: seems extreme. Yeah, there is an analysis that you sometimes
Speaker 1: see in these cases, which is an inquiry takes place
Speaker 1: whether there is a less intrusive means accomplishing the same
Speaker 1: goal of the example you give is one that certainly
Speaker 1: presumably was available. There are some federal regulations that are
Speaker 1: also cited in the opinion, and the decent especially saying
Speaker 1: that these are other ways in which this same goal
Speaker 1: could have been accomplished and that would have been less
Speaker 1: intrusive from the privacy standpoint. But my sense from reading
Speaker 1: the majority's opinion was that it wasn't in the frame
Speaker 1: of mind to be tinkering with the machinery that was
Speaker 1: was employed in this in this situation because of the
Speaker 1: very strong at will presumption that exists under a higher law,
Speaker 1: the employee says that she's going to file a motion
Speaker 1: for reconsideration. Is there any indication that she might fare
Speaker 1: better with a motion for reconsideration? I doubt it. As
Speaker 1: I said, this was slay. It was fairly hard fought litigation.
Speaker 1: The court was badly supplit I mean it could not
Speaker 1: you know, one more vote one way or the other
Speaker 1: would have made the difference. There were four justices that
Speaker 1: voted um in favor of the employer, and by the
Speaker 1: way that the Supreme Court reversed the fifth District, so
Speaker 1: actually the employee had one in the appellate court below,
Speaker 1: I believe um. But the dissent consisted of three justices,
Speaker 1: So one justice one way or the other could have
Speaker 1: made the difference, and Chief Justice O'Connor was among the
Speaker 1: three dissenting justices. Four states prohibit observe collection Connecticut, Maine,
Speaker 1: Rhode Island, Vermont. From what you see in your practice
Speaker 1: is observed collection becoming the way that that employers verify
Speaker 1: I suspect not. I mean this. This struck me as
Speaker 1: being unusual in that regard, especially since there are also
Speaker 1: legitimate means which this kind of testing can be accomplished
Speaker 1: without engaging in this direct observation method. So my sense
Speaker 1: is that there isn't a trend towards this, and I
Speaker 1: suspect that. Again, I haven't done any empirical studies of this,
Speaker 1: but my sense is that fewer testing facilities would use
Speaker 1: this or would continue to use it's on and going
Speaker 1: forward basis this. This was obviously a lot of litigation
Speaker 1: over you know, a couple of drug tests. So I
Speaker 1: would imagine, all things being equal, the employer and the
Speaker 1: testing facility are are more than happy not to have
Speaker 1: this recur uh, And I wouldn't be surprised if they
Speaker 1: might get sued again. Somebody may try to figure out
Speaker 1: a federal right that they can rely upon that, as
Speaker 1: far as I can tell, was not considered by the
Speaker 1: Ohio courts in this situation. So that might be another
Speaker 1: method of attacking this. Since you know, drug tests have
Speaker 1: become more and more accepted, are there are a lot
Speaker 1: of cases of employees challenging UG tests and the way
Speaker 1: they're administered. Most of those battles were fought UH ten
Speaker 1: in fifteen years ago, and quite frankly, the employer won
Speaker 1: most of them. And there's been a lot of litigation
Speaker 1: about this, for example, in California, so I'm most familiar
Speaker 1: with that. The way the rules more or less have
Speaker 1: settled in California is that an employer may subject an
Speaker 1: employee to a dry test if there is a reasonable
Speaker 1: suspicion that the employees under the influence UH and the
Speaker 1: employer has to be able to articulate what the factors
Speaker 1: are that lead it to conclude that the employee might
Speaker 1: be under the influence, and that could be dilated pupils,
Speaker 1: slurred speech, you know, parking in a strange way, whatever,
Speaker 1: whatever it might be. So employers can do testing under
Speaker 1: those circumstances and not necessarily direct observation testing. I think
Speaker 1: that I have not heard of that occurring with any
Speaker 1: frequency in California. The second major category of testing that
Speaker 1: occurs in California involve situations where the employee is in
Speaker 1: the safety sensitive position. So, for example, you have somebody
Speaker 1: who's driving the booklift around or is otherwise dealing with
Speaker 1: very heavy machinery that could endanger the employee or others.
Speaker 1: Under those circumstances, an employer has relatively broad discretion to
Speaker 1: engage in drug testing. Under the circumstances where things get
Speaker 1: complicated are in states like California, for example, where we
Speaker 1: now have legalized marijuana, and so that right is continuing
Speaker 1: to butt up against the employer's right to do drug testing.
Speaker 1: And then you add in the additional fact that marijuana,
Speaker 1: for example, is still illegal on the federal level, and
Speaker 1: so that can differ from federal administration to federal administration.
Speaker 1: The Obama administration was not particularly interested in enforcing uh
Speaker 1: those laws that the Trump administration has been much more
Speaker 1: interested in that, and so um, there are a lot
Speaker 1: of different and competing points of view with respect to this,
Speaker 1: and it is confusing for employers and employees alike. Thanks Tony.
Speaker 1: That's Anthony and City, a partnered Proscauer Rose. Dozens of
Speaker 1: workers are suing their employers over alleged violations of the
Speaker 1: first US federal paid leave law. The Family's First Coronavirus
Speaker 1: Response Act, was designed to give options to workers who
Speaker 1: have to take leave because of COVID nineteen Bloomberg Law
Speaker 1: analysis found that seventy two coronavirus leave lawsuits have been
Speaker 1: filed in federal courts by largely blue collar workers, and
Speaker 1: those numbers are expected to spike in the fall. Joining
Speaker 1: me is Aaron mulveney, Bloomberg Law senior reporter tell us
Speaker 1: one or two of the stories of some of the
Speaker 1: workers who took leaves and were fired or warrent granted leaves.
Speaker 1: Sure since the Families First Coronavirus Response Act has impact UM,
Speaker 1: their been about six dozen lawsuits that we found that
Speaker 1: have been filed accusing employers of either not giving workers
Speaker 1: believes that they UM deserved under the law, or retaliating
Speaker 1: essentially against the workers for being fired. So, by way
Speaker 1: at background, that's basically what this federal law protect against.
Speaker 1: A lot of the cases that we found were from
Speaker 1: blue collar workers, such as some that I thought were
Speaker 1: the allegations were particularly shocking were a scrap metal worker
Speaker 1: in Maryland had quarantine himself UM for three weeks after
Speaker 1: he was hostialized with COVID, and he claimed he was
Speaker 1: fired for that. A New Jersey janitor experienced the sore
Speaker 1: throughout weakness after he was posed to the virus and
Speaker 1: he stayed home waiting for his test results and then
Speaker 1: he was fired for that UM. This was a pretty
Speaker 1: common one as well. A legal assistant asked to tell
Speaker 1: a work when her son's school closed UM, and she
Speaker 1: was fired. These are the kind of examples. About half
Speaker 1: were fired, we're having COVID like symptoms and quarantining. About
Speaker 1: a third were the kind of school or caregiver situations.
Speaker 1: Those are some of the examples of the kind of
Speaker 1: cases that we've seen under this So there are lots
Speaker 1: of instances where parents have to take care of their
Speaker 1: child because daycare or schools are closed and they're not
Speaker 1: given leave. Absolutely, there are a lot of cases, about
Speaker 1: a third of the cases that we found in our analysis,
Speaker 1: we're from parents who were requesting this family leave to
Speaker 1: take care of their children, whether their children's school closed
Speaker 1: down or you know, if there if their children got sick.
Speaker 1: I will say working parents can tap about in additional
Speaker 1: weeks of family leave under the law, and it will
Speaker 1: be paid at two thirds of their regular wages, so
Speaker 1: it's not the full wages. Let's say you're sick with COVID.
Speaker 1: How many weeks can you get off if your employer
Speaker 1: qualifies under the Act, Workers get two weeks of paid
Speaker 1: leave and at their regular earnings if they're experiencing COVID
Speaker 1: symptoms and seeking medical treatment, or if I think a
Speaker 1: lot of people could understand when there were shut downs,
Speaker 1: like government shutdowns and medical quarantine orders, that would be
Speaker 1: something you could claim as well if if a you know,
Speaker 1: if an employer asked you to basically violate that, and
Speaker 1: then the two only the two thirds of the typical
Speaker 1: salary is triggered with quarantining um with a child, or
Speaker 1: you know, if you have like maybe an elderly parent
Speaker 1: that you're caring for, that would be you would get
Speaker 1: two weeks of paid sick leave for that. As far
Speaker 1: as employers who are exempt, our healthcare companies exempted, and
Speaker 1: therefore healthcare workers don't have access to this protection. There
Speaker 1: is a healthcare worker exemption under the Act, and the
Speaker 1: d o L the Labor Department, has issued some guidance
Speaker 1: on that, and it's somewhat open for debate. I've noticed
Speaker 1: in the filings of there were still some people who
Speaker 1: worked in the healthcare industry who were filing these lawsuits,
Speaker 1: and it remains to be seen whether they'll be thrown
Speaker 1: out under the exemption. Or whether that the exemption was
Speaker 1: supposed to be for a specific type of healthcare worker.
Speaker 1: A lot of management sided deploy employment attorneys will say
Speaker 1: it was crafted a little hastily and that exemption in
Speaker 1: particular wasn't necessarily clear, And it seems from your story
Speaker 1: like it's an uphill battle for management attorneys just trying
Speaker 1: to figure out the law. I think that will be
Speaker 1: the case with any new kind of federal blanket law
Speaker 1: that requires companies to comply with new standards as they
Speaker 1: never have before. This is the first federal paper policy
Speaker 1: in the country so that the country's ever had, and
Speaker 1: although it's limited and scope, it still has different you know,
Speaker 1: exemptions and qualifications and notification requirements for employers, and you know,
Speaker 1: especially if it's a smaller business that may not regularly
Speaker 1: get advice from an attorney, there are hurdles and who
Speaker 1: to jump through to avoid getting sued. These kinds of
Speaker 1: laws I think are often daunting for the average person.
Speaker 1: Are workers also confused about, you know, what their rights are?
Speaker 1: I would imagine a lot of workers aren't familiar with
Speaker 1: necessarily what they um have a right to because they
Speaker 1: didn't have a pailee policy from their employer and they
Speaker 1: don't get notification about this these new rights under UM,
Speaker 1: this Emergency Act, and in a lot of you know,
Speaker 1: low income workers may not have the means to go
Speaker 1: out and buyle a lawsuit, and they they might not
Speaker 1: know that they have these this kind of capability. Some
Speaker 1: of the worker advocates that I talked to said that
Speaker 1: they were getting flooded with a lot of questions but
Speaker 1: what they were entitled to and especially when people were
Speaker 1: in these kind of difficult situations. And what they said
Speaker 1: is they said they were offering advice so that hopefully
Speaker 1: wouldn't come to a lawsuits and more, you know, talking
Speaker 1: through with the employer or the new standards that they're
Speaker 1: required to follow, and so hopefully it could be resolved
Speaker 1: that way. There might be one reason for the relatively
Speaker 1: low number of lawsuits if employers and workers can kind
Speaker 1: of work together on this to bring litigation. Aaron management
Speaker 1: attorneys are expecting a spike in cases in the fall.
Speaker 1: Is that because more workers are likely to become more
Speaker 1: familiar with the law. I did have some management attorneys
Speaker 1: who raise that concern that maybe there would be more
Speaker 1: awareness of the law in coming months. UM the law
Speaker 1: expires in December thirty one, so it would it would
Speaker 1: only see a matter of the next few months. But
Speaker 1: there what's happening now is there are schools reopening, there
Speaker 1: are more businesses reopening, and that could both trigger more
Speaker 1: COVID symptoms from hope experts say, or how health concerns,
Speaker 1: but also just the need for leave, you know, balance
Speaker 1: with parents or caregivers, balancing a lot of UM new
Speaker 1: demands and as the country kind of steps into the pandemic.
Speaker 1: I think at the beginning there was a lot of
Speaker 1: uncertainty and chaos and everybody was scrambling. But now they're
Speaker 1: trying to set into a new all the very different
Speaker 1: normal in the business community. So there is a suggestion
Speaker 1: that there could be a spike for various reasons. It
Speaker 1: could be that more workers become aware of it, but
Speaker 1: there really isn't strong evidence that that's the case necessarily
Speaker 1: at this point. What kinds of companies or what companies
Speaker 1: are being sued, well, there are some limits again to
Speaker 1: that because there shouldn't be there aren't UM. An employer
Speaker 1: with more than five workers is exempt from the law,
Speaker 1: and there are also some UM exemptions for workers of
Speaker 1: fifty or less us and some of the big names
Speaker 1: that we saw, and they they were Kroger and Eastern
Speaker 1: Airlines and Holiday in which people may may recognize. But
Speaker 1: they were mostly companies that you might not have heard
Speaker 1: of necessarily, like uh, lawn hare companies or cleaning companies
Speaker 1: that can you work under some kind of um name UM.
Speaker 1: So it wasn't necessarily things that you've heard of, you know,
Speaker 1: they might be kind of like this medium sized business
Speaker 1: that falls into that area. What are the states that
Speaker 1: have the most claims against employers? Florida far and away,
Speaker 1: I'll stripped the other states. It had the most cases. Uh,
Speaker 1: Michigan and Pennsylvania probably had the they were kind of following.
Speaker 1: It was scattered around the country other than that, but
Speaker 1: Florida definitely stood out is the main states, so it
Speaker 1: saw these kind of claims. There's so much empathy or
Speaker 1: expressed empathy for healthcare worker is is there any kind
Speaker 1: of legislation being proposed to cover health care workers in
Speaker 1: the same way that they cover other workers. It just
Speaker 1: seems unfair to be excluding them. I'm not sure how
Speaker 1: what lawmakers are thinking as far as any aspect of
Speaker 1: this legislation, whether or not it will be renewed moving
Speaker 1: forward UM, and whether or not they'll tweak it with
Speaker 1: maybe more clarification on what the health care worker exemption
Speaker 1: is or what they were intending to do UM. I
Speaker 1: have not personally heard of any proposal to UM provide
Speaker 1: something like this specifically for the entire health care industry though. However, so,
Speaker 1: what is the best guidance that attorneys are giving to
Speaker 1: employers that fall under the law. As usual with advice
Speaker 1: from attorneys, they always advise making sure that they are
Speaker 1: aware of what the law requires them, like they need
Speaker 1: to notify their workers of their new leave rights. And
Speaker 1: they also recommend collecting documentation when these requests are made,
Speaker 1: providing notice of their decision about granting or rejecting leaves.
Speaker 1: Those things are important in the litigation process, even if
Speaker 1: they seem kind of procedural at an early stage. But
Speaker 1: but I think this is an important point to a
Speaker 1: lot of these lawyers that I talked to said, keeping
Speaker 1: flexibility in mind in these difficult situations is really important
Speaker 1: as a company outside of their legal and you know,
Speaker 1: making taking flexibility to account and they're balancing these decisions
Speaker 1: for their business and for their workers needs. When you
Speaker 1: talk to people, what do they see as the biggest
Speaker 1: challenge coming up as kids return to school, as more
Speaker 1: businesses reopen. Is there an area or a type of
Speaker 1: of worker that they see more at risk of termination.
Speaker 1: I think the biggest fear would not be necessarily a
Speaker 1: type of worker, but maybe just a parent kind of
Speaker 1: having to balance a lot of difficult situations and maybe
Speaker 1: being treated differently than other workers in general, and not
Speaker 1: you know, really getting to leave that they they're entitled
Speaker 1: to under this law. Um. I think that would probably
Speaker 1: be what I heard the most of. Otherwise, I think
Speaker 1: there isn't necessarily a particular industry that this would be affecting.
Speaker 1: I think early in the pandemic months, there were probably
Speaker 1: would be more of the workers that were going back,
Speaker 1: like in manufacturing and more essential workers. And now that
Speaker 1: more businesses are opening up, I think there is some
Speaker 1: potential for more workers to be affected, maybe run office
Speaker 1: workers who were once table working and people like that
Speaker 1: in like a cross industries. Honestly, what stage are these
Speaker 1: lawsuits at? Are Are they mostly at the complaint phase
Speaker 1: and they reached the answer phase? They are mostly very
Speaker 1: early in their litigation process. Most of them have been
Speaker 1: filed or there were some that we found that were
Speaker 1: voluntarily dismissed, which kids took us. The settlement was reached
Speaker 1: by both parties, and there was one case that did
Speaker 1: have a motion to dismiss that the company tried to
Speaker 1: get the lawsuits thrown out and a judge rejected on
Speaker 1: that motion, so it'll be moving forward. That that early
Speaker 1: kind of procedural motion usually indicates that the claim had
Speaker 1: some merit and could be moving forward. Thanks for being
Speaker 1: on The Bloomberg Law Show, Aaron. That's Bloomberg Law Senior
Speaker 1: Reporter Aaron mulvaney. And that's it for the edition of
Speaker 1: the Bloomberg Law Show. I'm June Grosso. Thanks so much
Speaker 1: for listening, and remember to tune to The Bloomberg Law
Speaker 1: Show every weeknight at MS Journey right here on Boomberg Radio.