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_________________________________________________
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Michael J. Florio, Esq.
Sandra K. Law, Esq.
Clarksburg, West Virginia Schrader, Byrd & Companion
Attorney for Appellant
Wheeling, West Virginia
Niall A. Paul, Esq.
Eric W. Iskra, Esq.
Spilman, Thomas & Battle
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
2. “Drug testing will not be found to be violative of public policy grounded
in the potential intrusion of a person's right to privacy where it is conducted by an employer
based upon reasonable good faith objective suspicion of an employee's drug usage or while
an employee's job responsibility involves public safety or the safety of others.” Syllabus
Point 2, Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990).
Per Curiam:
In the instant case, we uphold a grant of summary judgment by a circuit court
in a case alleging invasion of privacy.
The appellant's complaint stated that Wal-Mart's pre-employment requirement
of giving a urine sample for drug testing after being offered a job, but before starting to work,
was per se an actionable invasion of the appellant's privacy; and that Wal-Mart had, by
requiring the sample, caused the appellant “embarrassment, indignity, humiliation,
annoyance, inconvenience and other general damages.”
(See footnote 1)
Wal-Mart filed an answer admitting that the appellant had been required to
submit a urine sample for drug testing, but denying that there was any illegality in or harm
from this requirement. Thereafter, some limited amount of discovery took place. The
appellant then filed a motion for partial summary judgment on the issue of liability. Wal-
Mart filed a cross-motion for summary judgment on the same issue. The circuit court granted
summary judgment to Wal-Mart, holding that the appellant had not shown an actionable
invasion of privacy in Wal-Mart's requiring her to submit a urine sample for drug testing
before she began to work for Wal-Mart.
(See footnote 2)
The appellant's principal argument is based on our holding in Twigg v.
Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990). In Twigg, this Court stated in
Syllabus Points 1 and 2:
1. It is contrary to public policy in West Virginia for an
employer to require an employee to submit to drug testing since
such test portends an invasion of an individual's right to privacy.
2. Drug testing will not be found to be violative of public
policy grounded in the potential intrusion of a person's right to
privacy where it is conducted by an employer based upon
reasonable good faith objective suspicion of an employee's drug
usage or while an employee's job responsibility involves public
safety or the safety of others. [emphasis added].
Notably, and for the purposes of our holding in the instant case, importantly,
Twigg was a case involving the issues arising from an employer's requirement of drug testing
by current, existing employees - not by prospective employees who had not begun
employment.
Our decision in Twigg relied upon Roach v. Harper, 143 W.Va. 869, 105
S.E.2d 564 (1958), in which we held in Syllabus Point 1 that:
1. The right of privacy, including the right of an individual to
be let alone and to keep secret his private communications,
conversations and affairs, is a right the unwarranted invasion or
violation of which gives rise to a common-law right of action
for damages.
In Roach, we stated:
The “right of privacy” has been defined as the right of an
individual to be let alone, to live a life of seclusion, or to be free
from unwarranted publicity. The right of privacy is closely
related to many other subjects of law, e. g., libel and slander,
literary property, wrongful search and seizure, compulsory
physical examination and eavesdropping. Though different in
some respects from such subjects, the right to privacy is an
individual right that should be held inviolate. To hold
otherwise, under modern means of communication, hearing
devices, photography, and other technological advancements,
would effectively deny valuable rights and freedoms to the
individual.
The usual argument against the existence of the right of action
is that it is for a wrong or tort for which no recovery was
permitted at common law. We need not here, however, theorize
as to the basis for the existence of the right. As above pointed
out, that existence has been affirmed by the very great weight of
authority. It may not be amiss, however, to quote language of
Judge Parker in the opinion in Barnes Coal Corporation v.
Retail Coal Merchants Ass'n, 4 Cir., 128 F.2d 645, 648: “* * *
It must be remembered, in this connection, that the common law
is not a static but a dynamic and growing thing. Its rules arise
from the application of reason to the changing conditions of
society. It inheres in the life of society, not in the decisions
interpreting that life; and, while decisions are looked to as
evidence of the rules, they are not to be construed as limitations
upon the growth of the law but as landmarks evidencing its
development. As was said in Hurtado v. [People of State of]
California, 110 U.S. 516, 530, 4 S.Ct. [111], 292, 28 L.Ed. 232,
“Flexibility and capacity for growth and adaptation is the
peculiar boast and excellence of the common law” * * *.”
[citations omitted].
143 W.Va. at 876-877, 105 S.E.2d at 568. See also Syllabus Point 3, Sutherland v. Kroger
Co., 174 W. Va. 321, 110 S.E.2d 716 (1959) (“An illegal search by a private individual is a
trespass in violation of the right of privacy.”); Cordle v. General Hugh Mercer Corp., 174
W.Va. 321, 325 S.E.2d 111 (1984) (imposing polygraph requirement on employees is
contrary to public policy).
The appellant argues that this Court should overrule the circuit court's order
granting summary judgment by extending the principles set forth in Twigg to apply
categorically to all instances of employment-related drug testing - both during employment,
and pre-employment.
The appellee responds by arguing that the balancing between an individual's
right of privacy and the needs and rights of a private employer is substantially different in the
pre-employment context, and that therefore the holding in Twigg is both inapposite and
inapplicable to the instant case.
We concluded in Twigg that in the case of current employment, the employee's
right of privacy is not outweighed by the employer's rights and interests unless specific
heightened safety concerns or well-grounded individualized suspicion is present - analogous to the kind of probable cause necessary for a warrant - and clearly outweighs the
employee's important right to privacy.
However, in the pre-employment context, it is apparent - although not
necessarily dispositive in every case - that a person clearly has a lower expectation of
privacy. 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.
In light of the important issues involved, we are not prepared in deciding this
case to paint with an unnecessarily broad brush - and to say that under no set of particular
circumstances could a person successfully assert an invasion of privacy-based claim arising
from a particular pre-employment drug testing requirement. Moreover, we strongly affirm
our holding in Twigg regarding the appropriate balance that must be struck between privacy
rights and employer's interests for an employer's current employees. We also point out that
our ruling today relates only to the case of a private employer; and nothing in this opinion is
to be seen as indicative of the scope of the legal rights of or restraints upon a public
employer, the conduct of which directly implicates, inter alia, the constitutional prohibitions
against searches without probable cause.
In this regard, we are firmly committed to the unique and essential role of
courts in protecting the individual's private life and “space” from well-intentioned but
ultimately oppressive, insulting, degrading, and demeaning intrusions - whether these
intrusions come from the omnipresent forces of the state, or from the equally omnipresent
and inescapable forces of the market.
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. 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.
(See footnote 3)
Having said this, we agree with the circuit court that the principles of Twigg
do not extend to the pre-employment situation and thus do not preclude the granting of summary
judgment to Wal-Mart in the instant case. We conclude that the appellant put forth no facts
that would show that her right to privacy was violated in the instant case simply as a result
of Wal-Mart's requiring her, prior to starting work, to give a urine sample for drug testing
purposes.
In making our decision, we are particularly mindful of the specter of a court-
created “slippery slope” in this evolving area of law. Courts must guard against the
inadvertent self-fulfilling “shrinking” of “expectations of privacy” - as incremental
intrusions into areas of personal life and inviolability, traditionally viewed as private and
protected, may perforce be validated in the light of similar and tolerated past erosions of the
private sphere. It is for this reason that we necessarily must have some degree of hesitancy
with respect to our ruling in the instant case - as we are putting a “stamp of approval” on
a type of intrusion that we have not sanctioned before (nor have we before disapproved it).
Time will tell if we can hold to our resolve not to go further down a slippery slope.