Newsbrief: West Virginia Supreme Court Grants Private Employers Greater Pre-Employment Drug Test Rights 12/12/03

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Thirteen years ago, the West Virginia Supreme Court ruled that the random drug testing of employees of private companies violated their privacy rights under the state constitution. Last week, in a ruling in which the state Supreme Court noted its uneasiness with its own decision, the court refused to extend that privacy right to persons confronted with demands for pre-employment drug testing. Under the ruling, private employers in West Virginia will be able to demand such tests of all prospective employees.

The ruling came in the case of Stephanie Baughman, who was offered a job by Wal-Mart, the state's (and the country's) largest employer. In 2000, Wal-Mart forced her to submit to a urine screen being started working at the chain's Grafton store. Although Baughman passed the drug test and later left Wal-Mart for unrelated reasons, she sued the giant corporation for violating her privacy rights. Forcing her to submit to the urine test caused her "embarrassment, indignity, humiliation, annoyance, inconvenience and other general damages," she claimed.

While the court had ruled in 1990 that random drug tests of employees violated privacy rights, it was not ready last week to extend those same rights to prospective employees. "[I]n the pre-employment context, it is apparent... that a person clearly has a lower expectation of privacy," said the unsigned opinion. "Employers regularly perform pre-employment background checks, seek references, and require pre-employment medical examinations, etc., that are far more intrusive than what would be considered tolerable for existing employees without special circumstances. Giving a urine sample is a standard component of a medical examination."

But the court also took pains to say it remained concerned about privacy issues involved. "The principle and right of personal autonomy and privacy is just as important as the more traditional civil rights of freedom of assembly, speech, and religion," read the opinion. "It is central to our constitutional system of government. Its protection needs strong and sometimes controversial and fearless, bulwarks -- especially in an age of ever-more sophisticated and intrusive technologies, and cries for heightened surveillance and monitoring of every aspect of life. It is a crucial role of courts in a constitutional system to see that these bulwarks of privacy, autonomy, and ultimately freedom remain strong -- even in the face of short-sighted efforts to erode them, or to make an end-run around them."

But you still have to pee in a cup if you want a job at Wal-Mart. Visit http://www.state.wv.us/wvsca/docs/fall03/31312.htm to read Baughman v. Wal-Mart online.

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