2020 Ohio 4193
Ohio2020Background
- Sterilite (private employer) had a workplace substance-abuse policy administered by U.S. Healthworks; policy required urine testing (random, reasonable suspicion, post-accident) and conditioned employment on compliance.
- In Oct–Nov 2016 Sterilite/U.S. Healthworks began collecting urine by a "direct-observation method": a same-sex monitor visually observed the employee’s genital area while the employee produced the sample.
- Four at-will employees selected for testing signed a consent form (which did not disclose direct observation), were told about the direct-observation method when they reported to the testing restroom, and each proceeded without on-the-spot objection; two produced valid samples, two were unable to produce a sample within the policy time and were terminated.
- Employees sued Sterilite and U.S. Healthworks for common-law invasion of privacy (intrusion upon seclusion). The trial court dismissed; the Fifth District reversed; Ohio Supreme Court accepted appeal.
- The Ohio Supreme Court held that when an at-will employee consents, without objection, to urine collection by direct observation, the employee has no common-law invasion-of-privacy cause of action; the court reversed the court of appeals and reinstated the trial-court dismissal.
- A dissent argued consent and duress were factual issues (given the termination ultimatum) and that direct observation is a highly offensive intrusion raising triable privacy claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an at-will employee can bring a common-law intrusion (invasion-of-privacy) claim for urine collection by direct observation | Direct-observation is "highly offensive" and not justified absent specific cause; employees did not validly consent and were coerced | Employees consented (signed release and proceeded) and policy compliance was a condition of at-will employment; consent defeats the tort | Held: If an at-will employee consents, without objection, to direct-observation collection, no common-law invasion-of-privacy claim lies |
| Whether signing a consent form that does not mention direct observation, but then proceeding after being told at the restroom, constitutes consent | Consent was not informed; proceeding was involuntary because refusal meant termination | Being told at the restroom gave a second opportunity to refuse; acting to provide (or attempt) the sample manifested consent; at-will termination threat did not render consent involuntary as a matter of law | Held: Proceeding to provide (or attempt) a sample after being informed constitutes consent; consent was not vitiated by at-will status |
| Whether federal agency guidelines or Fourth Amendment public-employee precedents limit private employers’ use of direct observation | Federal guidelines (USDA/USDHHS/USDOT) and public-employee Fourth Amendment cases support limiting direct observation to narrow circumstances | Federal constitutional rules and federal agency protocols govern public/state actors, not private employers; such guidelines are not binding here | Held: Those federal guidelines/constitutional cases are inapplicable to a private-employer common-law privacy claim |
| Whether an independent third-party lab/staff can be liable for invasion of privacy when they perform direct-observation collection | Lab employees committed the intrusive act and can be liable | Independent laboratories and their trained staff are not liable when the employee consented to monitored collection | Held: Third-party collectors are not liable where the at-will employee consented without objection |
Key Cases Cited
- Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (Ohio 1956) (establishes Ohio common-law right to privacy and intrusion-upon-seclusion test)
- Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602 (U.S. 1989) (urinalysis implicates privacy when collection procedures require visual monitoring of urination)
- Sustin v. Fee, 69 Ohio St.2d 143, 431 N.E.2d 992 (Ohio 1982) (privacy-intrusion actionable if intrusion would be highly offensive to a reasonable person)
- Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 483 N.E.2d 150 (Ohio 1985) (describes employment-at-will doctrine and its limits)
- Lake Land Emp. Group of Akron, L.L.C. v. Columber, 101 Ohio St.3d 242, 804 N.E.2d 27 (Ohio 2004) (parties may change at-will employment terms; illustrates employer/employee bargaining power)