Privacy Rights and Unionizing

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What are the privacy settings on your Facebook page? Do you think your employer, or prospective employer, should be allowed to look at it?

13.1d Privacy Rights

According to Janis Procter-Murphy, employment attorney, “Employee privacy is recognized as one of the most significant workplace issues facing companies today.” The right of privacy is the freedom from unwarranted government or business intrusion into one’s personal affairs. It involves the individual’s right to be given personal autonomy and to be left alone. Not surprisingly, employees strongly defend their right to workplace privacy. Meanwhile, employers defend their right to monitor employees’ activities when they directly affect a business, its productivity, workplace safety, and/or morale. So who is right? Employers or employees? Laws and court cases related to workplace privacy generally attempt to balance an employee’s legitimate expectation of privacy against the employer’s need to supervise and control the efficient operation of the organization. In this section, we will discuss some of the most pressing privacy issues being debated by employees and employers today and how they are being resolved.

Substance Abuse and Drug Testing

As you learned, in the United States companies can legally test workers for drugs. But can they do so under any and all circumstances? The answer is no. Certain restrictions apply. In the private sector, drug testing is largely regulated by individual states. Pro–drug testing states generally permit testing, provided that strict testing procedures are followed. States such as these sometimes offer employers a discount on their workers’ compensation insurance premiums if they take certain steps to maintain a drug-free workplace, which may include testing job applicants. By contrast, states with restrictive drug-testing laws generally prohibit testing for drugs except in very specific circumstances and for drugs listed in state regulations.

Federal regulations and laws restrict drug testing as well. Recall from Chapter 3 that the Equal Employment Opportunity Commission does not allow job applicants to be tested before they are extended offers. The Americans with Disabilities Act protects employees who have been addicted to drugs and are recovering from them. And some drugs that would otherwise be illegal, such as opiates and medical marijuana, are legitimately prescribed for certain conditions.

Safety Sensitive Positions. Drug testing is most prevalent among employees in sensitive positions within the public sector, in organizations doing business with the federal

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government, and in public and private transportation companies. Since the passage of the Drug-Free Workplace Act of 1988, applicants and employees of federal contractors have become subject to testing for illegal drug use. Barring state and federal laws that restrict or prohibit drug testing, however, private employers generally have a right to require employees to submit to the tests. The exception is unionized workforces. Drug-testing programs for these employees must be negotiated by their unions.

Criticisms of Drug Testing. In Chapter 6, we explained that some recent studies have failed to show that drug testing makes the workplace safer and that alcohol appears to create more problems than drugs. Another criticism of drug tests, including urinalysis and hair tests, is that they do not reveal if a person is currently under the influence of a drug. Illegal substances remain in urine for various periods of time: cocaine for approximately 72 hours, marijuana for three weeks or longer. Therefore, an employee can test positive for a drug days or weeks after using it but not be impaired on the job. Alcohol will not show up in a urinalysis or hair test. For that, a breathalyzer, blood, or saliva test must be used. The question becomes, which test should an employer use?

Organizations also have to ensure that any samples taken from employees are properly handled and that accredited labs are used to test them. The results of the tests must be kept confidential and provided only to those who need to know—for example, supervisors or HR staff members—and not to other coworkers or disinterested managers. Boeing, 3M, United Airlines, and Motorola use an independent medical review officer (MRO) to ensure the integrity of their drug-testing programs. MROs are required in certain states for tests mandated by the federal government.

For reasons such as these, companies have become less aggressive about drug testing than they were in decades past when the tests first found their way into the workplace. Today, most companies only test when reasonable suspicion or probable cause exists. According to the Society of Human Resources Management, drug testing is now by far the least popular way for employers to deal with substance abuse. Drug-free workplace policies or employee assistance services are far more common. A drug-free policy should state under what conditions employees may be subject to a drug test, the testing procedures used, and the consequences of a positive report. Figure 13.3 shows an example of a drug- free workplace policy.

Figure 13.3

Recommendations for a Drug-Free Workplace Policy

1. Adopt a written zero tolerance drug-free workplace policy and provide a copy to all employees. A signed copy should be placed in the employee’s personnel file.

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2. Post “We Are a Drug-Free Workplace” signs where employees will widely observe them.

3. Provide employees with substance abuse prevention educational materials. Arrange substance abuse awareness training for employees and managers.

4. Consider performing preemployment drug testing on all new hires.

5. Advise employees that they are subject to drug testing when “reasonable suspicion” exists.

6. Provide for follow-up testing to ensure that an employee remains drug-free after return from a substance abuse treatment program.

7. Provide for post-accident drug testing when justified by property loss or damage, serious injury, or death.

8. Use only federally or state-approved/certified labs for analysis.

9. Utilize the services of a medical review officer for all positive drug test results.

10. Maintain strict confidentiality of all test results. Provide information only on a “need-to-know” basis.

11. Apply terms of a written policy strictly, fairly, and equally among employees and managers.

Impairment Testing

An alternative to drug testing is to evaluate an employee’s suitability for work through impairment testing (Also called fitness-for-duty or performance-based testing, it measures whether an employee is alert enough to work) . Also called fitness-for-duty or performance- based testing, impairment testing measures whether an employee is alert enough to work. One impairment test requires an employee to keep a cursor on track during a video game– like simulation. Another testing technique evaluates an employee’s eye movements. The employee looks into a dark viewport and follows a light with his or her eyes. Test results, when compared against baseline data gathered earlier on the employee, mimic those of a sobriety test. One advantage of impairment testing is that it focuses on workplace conduct rather than off-duty behavior. Furthermore, it identifies employees who are impaired because of problems that a drug test cannot spot: fatigue, stress, and alcohol use.

Chapter 13: Employees Rights and Discipline: 13.1d Privacy Rights Book Title: Managing Human Resources

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