[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Lunsford v. Sterilite of Ohio, L.L.C., Slip Opinion No. 2020-Ohio-4193.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2020-OHIO-4193 LUNSFORD ET AL., APPELLEES, v. STERILITE OF OHIO, L.L.C., ET AL, APPELLANTS. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Lunsford v. Sterilite of Ohio, L.L.C., Slip Opinion No. 2020-Ohio-4193.] Torts—Employment law—Invasion of privacy—When an at-will employee consents, without objection, to the collection of the employee’s urine sample under the direct-observation method, the at-will employee has no cause of action for invasion of privacy—Court of appeals’ judgment reversed and common pleas court’s judgment reinstated. (No. 2018-1431—Submitted January 28, 2020—Decided August 26, 2020.) APPEAL from the Court of Appeals for Stark County, No. 2017CA00232, 2018-Ohio-3437. __________________
27
Embed
Lunsford v. Sterilite of Ohio, L.L.C. (Slip Opinion)...[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Lunsford v. Sterilite of Ohio, L.L.C.,
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Lunsford v. Sterilite of Ohio, L.L.C., Slip Opinion No. 2020-Ohio-4193.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-4193
LUNSFORD ET AL., APPELLEES, v. STERILITE OF OHIO, L.L.C., ET AL,
APPELLANTS. [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lunsford v. Sterilite of Ohio, L.L.C., Slip Opinion No. 2020-Ohio-4193.]
Torts—Employment law—Invasion of privacy—When an at-will employee
consents, without objection, to the collection of the employee’s urine sample
under the direct-observation method, the at-will employee has no cause of
action for invasion of privacy—Court of appeals’ judgment reversed and
common pleas court’s judgment reinstated.
(No. 2018-1431—Submitted January 28, 2020—Decided August 26, 2020.)
APPEAL from the Court of Appeals for Stark County,
No. 2017CA00232, 2018-Ohio-3437.
__________________
SUPREME COURT OF OHIO
2
KENNEDY, J. {¶ 1} In this discretionary appeal from a judgment of the Fifth District Court
of Appeals, we consider whether an at-will employee has a cause of action for
common-law invasion of privacy as a result of his or her private employer’s
implementation of a workplace substance-abuse policy requiring the employee to
submit a urine sample for drug testing under the “direct-observation method.” For
the reasons set forth below, we conclude that when an at-will employee consents,
without objection, to the collection of his or her urine sample under the direct-
observation method, the at-will employee has no cause of action for common-law
invasion of privacy. Therefore, we reverse the judgment of the court of appeals
and reinstate the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The complaint alleges that appellees Adam Keim and Laura
Williamson are former at-will employees of appellant, Sterilite of Ohio, L.L.C.
Appellees Donna L. Lunsford and Peter D. Griffiths are current at-will employees
of Sterilite.
{¶ 3} Sterilite, a private company, has a workplace substance-abuse policy
that applies to all its employees, and compliance with the policy is a condition of
employment. The purpose of the policy is to “promote a healthy, safe and
productive workplace for all employees.” The policy reserves to Sterilite the
discretion to change the policy at any time.
{¶ 4} The policy sets out three circumstances under which Sterilite may
exercise its discretion to require an employee to submit to drug testing: while
investigating a workplace accident or incident, when there is reasonable suspicion
that an employee may be impaired by drugs or alcohol, and randomly at periodic
intervals. The policy also provides that urinalysis will be used to test for an
employee’s illegal use of drugs or improper use of prescription or over-the-counter
drugs, but it is silent on how the urine sample will be collected.
January Term, 2020
3
{¶ 5} Under the policy, a supervisor informs an employee when and where
he or she is to report for testing. If the employee does not produce a valid urine
sample within two and a half hours, the employee will be considered to have refused
to take the test. An employee who refuses to take the test is subject to immediate
termination. An employee whose urine sample tests positive for illegal drugs or
prohibited use of prescription or over-the-counter drugs is subject to disciplinary
action, up to and including termination.
{¶ 6} Appellant U.S. Healthworks Medical Group of Ohio, Inc., administers
Sterilite’s workplace drug-testing program. To facilitate drug testing under the
policy, Sterilite designated a restroom to be used exclusively for the collection of
urine samples. According to appellees’ complaint, U.S. Healthworks began
collecting urine samples for drug testing by the “direct-observation method” in
October 2016. Under that method, a same-sex monitor was required to accompany
the employee to the restroom to visually observe the employee produce the urine
sample.
{¶ 7} Lunsford, Williamson, and Griffiths were selected by Sterilite for
random drug testing on October 4 and 12 and November 8, 2016, respectively.
Keim was asked to submit to drug testing based on the policy’s reasonable-
suspicion-of-impairment provision on October 9, 2016. When appellees were
instructed by their respective supervisors to report to the restroom designated by
Sterilite for drug testing, each complied.
{¶ 8} At the beginning of the testing process, each appellee executed a
statement titled “Consent and Release” (“consent form”) provided by U.S.
Healthworks. The consent form provided:
I hereby give my consent to and authorize U.S. Healthworks staff
and its designated laboratory to perform any testing necessary to
determine the presence and/or level of drugs in my body on behalf
SUPREME COURT OF OHIO
4
of my * * * current employer, whose name I entered above. I further
give my consent for U.S. Healthworks to release any and all results
to the aforementioned employer. I agree to hold harmless all U.S.
Healthworks employees, physicians, and agents involved in the
performance of the testing, from any action that may arise from the
disclosure of such test results to the aforementioned employer * * *.
{¶ 9} Appellees did not know at the time they executed the consent form
that his or her urine sample would be collected under the direct-observation method.
None of the appellees had previously submitted a urine sample under the direct
observation-method. Appellees were notified that the direct-observation method
would be used when they reported to the restroom designated exclusively for urine
collection.
{¶ 10} Appellees each proceeded with the drug test under the direct-
observation method without objection. Lunsford and Griffiths were each able to
produce a valid urine sample. Keim and Williamson alleged in the complaint that
they each made “good faith efforts” to produce a valid urine sample but were
unable to do so within two and a half hours. Sterilite terminated Keim’s and
Williamson’s employment pursuant to the policy.
{¶ 11} Appellees filed in the Stark County Court of Common Pleas an
eight-count complaint against appellants on December 22, 2016. At issue here is
Count One of appellees’ complaint, which alleged that Sterilite and U.S.
Healthworks invaded appellees’ privacy by requiring them to submit their urine
samples under the direct-observation method. Appellees incorporated the policy
into their complaint.
{¶ 12} Appellees argued that Ohio law recognizes an individual’s right to
privacy and to freedom from unreasonable invasion of one’s privacy. Appellees
contended that because the direct-observation method is so “highly offensive to a
January Term, 2020
5
person of ordinary sensibilities,” Ohio’s courts should balance the intrusion of the
direct-observation method against the employer’s legitimate business interests in
conducting drug testing by that method. And if the intrusion outweighs the
employer’s interests in conducting drug testing by that method, then the employer
should be liable for invasion of privacy.
{¶ 13} In support of their arguments, appellees cited guidelines limiting the
use of the direct-observation method published by the United States Department of
Agriculture (“USDA”), the United States Department of Health and Human
Services (“USDHHS”), and the United States Department of Transportation
(“USDOT”) that were promulgated following an executive order of the President
of the United States and acts of the United States Congress (i.e., when the
employee’s prior drug-test results were reported to be positive for drugs,
adulterated, or substituted; or a specimen was invalid without an adequate medical
explanation; or when the temperature of the collected specimen was outside the
acceptable range, the employee’s conduct indicated possible adulteration or
substitution of the specimen, or the specimen exhibited signs that it was tampered
with during collection).
{¶ 14} Sterilite filed a motion to dismiss on January 17, 2017. U.S.
Healthworks filed a motion to dismiss on February 21, 2017. The trial court granted
appellants’ motions to dismiss on May 9, 2017, determining that the crux of
appellees’ invasion-of-privacy claim is that Sterilite’s substance-abuse policy
authorizes the collection of urine samples through the direct-observation method
“without requiring evidence, or a reasonable basis to suspect, that a particular
employee is likely to taint, tamper with, or otherwise compromise the integrity” of
the sample. The trial court accepted appellees’ factual allegations as true. The trial
court noted that appellees had acknowledged that Ohio employees have no
actionable invasion-of-privacy claim based on an employer’s implementation of
“random and suspicionless drug screening” as part of its workplace substance-
SUPREME COURT OF OHIO
6
abuse policy. It also noted that as support for the invasion-of privacy-claim,
appellees relied on the federal guidelines regarding the use of the direct-observation
method that had been published by the USDA, USDHHS, and USDOT. But it
determined that the policies of government entities are inapplicable because
appellants are private companies and there is no state actor involved in this case. It
further determined that Ohio does not recognize an invasion-of-privacy claim by
an at-will employee based solely on an employer’s use of the direct-observation
method during drug testing, particularly when the at-will employee agreed to be
tested as a condition of employment.
{¶ 15} The Fifth District reversed, holding that appellees had stated a valid
claim for invasion of privacy pursuant to this court’s decision in Housh v. Peth, 165
Ohio St. 35, 133 N.E.2d 340 (1956). 2018-Ohio-3437, ¶ 43. In reaching that
conclusion, the court of appeals determined that appellees have a “reasonable
expectation of privacy with regard to the exposure of their genitals.” Id. at ¶ 27.
After finding no binding precedent on the direct-observation method, the court of
appeals examined caselaw from other Ohio appellate districts, other states, federal
circuit courts, and the United States Supreme Court, including cases considering
fn. 4, citing Hopkins, Public Policy and the Formation of a Rule of Law, 37
Brooklyn L.Rev. 323, 330 (1971). See also Pittsburgh, Cincinnati, Chicago & St.
Louis Ry. Co. v. Kinney, 95 Ohio St. 64, 68, 115 N.E. 505 (1916) (“Sometimes such
public policy is declared by Constitution; sometimes by statute; sometimes by
judicial decision”).
{¶ 62} It follows that the at-will-employment doctrine does not supersede
an employee’s right to obtain redress for the violation of his or her privacy rights.
Consent
{¶ 63} The majority opinion also concludes that regardless of any analysis
based on appellees’ right to privacy and the at-will-employment doctrine, appellees
each consented to providing a urine sample while being directly observed by
Sterilite’s representative “by their actions” in providing, or attempting to provide,
the sample. Majority opinion at ¶ 41. As a broad principle regarding whether a
person consented to an act or acted under duress, we have explained that the “real
and ultimate fact to be determined in every case is whether the party affected really
had a choice; whether he had his freedom of exercising his will.” Tallmadge v.
Robinson, 158 Ohio St. 333, 340, 109 N.E.2d 496 (1952). See also In re Hua, 62
Ohio St.2d 227, 232, 405 N.E.2d 255 (1980). Consent is generally an absolute
defense to an intentional tort, see Restatement of the Law 2d, Torts, Section 892
(1979), and like most defenses, its merit depends on the facts alleged. For this
SUPREME COURT OF OHIO
24
reason, the defense of consent is usually not amenable to resolution by a Civ.R.
12(B)(6) motion to dismiss.
{¶ 64} Appellants and the majority opinion are disingenuous in stating that
appellees consented to providing their urine samples under the direct-observation
method. There was no direct consent here to the use of the direct-observation
method. The consent form that Sterilite required appellees to sign immediately
before they provided or attempted to provide their urine samples said nothing about
their having to provide the sample while a monitor directly observed their genitalia.
And Sterilite did not inform appellees that they would be subject to direct
observation until after they reported to provide their samples and after they had
signed the consent form.1
{¶ 65} With no direct consent by appellees, the question is whether
appellees impliedly consented to the use of the direct-observation method by their
actions; that is, whether their actions of submitting or attempting to submit their
urine samples while being directly observed constituted consent.
{¶ 66} Appellees had no time to make considered decisions on whether to
submit to drug testing under the direct-observation method. Sterilite’s substance-
abuse policy stated that “[a]ny employee who refuses to undergo a drug/alcohol test
will be subject to immediate termination.” At the time appellees were required to
provide their urine samples, they were presented with two choices: either provide a
urine sample under the direct-observation method or be terminated. It would strain
the meaning of the word “consent” to suggest that appellees consented under the
circumstances in this case.
1. Of course, there would be no issue regarding consent if Sterilite’s drug-testing policy involved notifying its new employees at the time of their hiring that its policy included the use of the direct-observation method for collecting urine samples. Similarly, when Sterilite decided to institute the use of the direct-observation method, it could have simply notified its employees of the new procedure that it had added to its drug-testing protocol.
January Term, 2020
25
{¶ 67} Under similar facts, a federal district court determined that an
employer’s policy requiring its employees to either take a drug test or be terminated
was “tantamount to no choice at all” and that the plaintiff-employee in that case did
not waive his right to challenge the employer’s drug-testing policy by submitting
to a drug test. Doyon v. Home Depot U.S.A., Inc., 850 F.Supp. 125, 130
(D.Conn.1994). And in Polsky v. Radio Shack, 666 F.2d 824, 825-827 (3d
Cir.1981), an employee alleged that her former employer had unlawfully
discharged her based on the results of a polygraph test conducted in violation of a
Pennsylvania statute prohibiting an employer from requiring an employee to submit
to a polygraph examination “as a condition for employment or continuation of
employment,” despite that the employee had signed a release prior to taking the
test. On the question whether the employee had consented to take the test, the Third
Circuit Court of Appeals reversed the district court’s grant of summary judgment
to the employer, holding that an issue of material fact existed as to whether the
employee “signed the release under threat of losing her job if she did not.” Id. at
827. See also Leibowitz v. H.A. Winston Co., 342 Pa.Super. 456, 463-465, 493
A.2d 111 (1985) (consent not valid if given under compulsion).
{¶ 68} Under the facts alleged by appellees in their complaint, what
happened to them was not much different from being an unwilling participant in a
shotgun wedding. Appellees alleged that they were “forced” to expose their
genitals to third-party observers. Taking this allegation as true for the purposes of
a Civ.R. 12(B)(6) motion to dismiss, Maitland v. Ford Motor Co., 103 Ohio St.3d