Business Law (part 30)

Employees Rights (part B)

by

 Charles Lamson

 Testing

In order to make sure businesses run properly, protect employees, protect company property from employee misuse, and weed out applicants for employment who might not be the best employees, many businesses have tried to institute various testing programs. These include polygraph testing, drug testing, and AIDS testing. The right of employers to use such tests, either on a pre-employment basis or on a random or mandatory basis after employment, has been limited by statute as well as by the courts.

Polygraph Testing

As lie detector tests appeared to become more reliable, increasing numbers of employers began using them, both as the tool to find out which employees had violated workplace rules and to screen applicants for employment. As a result of perceived injustices, both because of an intrusion on employees rights and because of the debate about the reliability of such tests, the right to use these tests has been limited by statute. In 1988, the federal government enacted the Employee Polygraph Protection Act (EPPA). A polygraph is another word for a lie detector.

The EPPA limits the use of lie detector devices for pre-employment screening or random testing of employees by employers engaged in interstate commerce. An employer may not retaliate against an employee who refuses to take a polygraph test and may not use the test results as the exclusive basis for an employment decision adverse to an employee who took a test. Private employers may not use polygraphs unless:

1. The employer is investigating a specific incident of economic loss, such as theft or industrial espionage or sabotage.
2. The employer provides security services.
3. The employer manufacturers, distributes, or dispenses drugs.

An employer may use a polygraph as part of an ongoing investigation if the employee had access to the subject of the investigation and the employer has a reasonable suspicion of the employee's involvement. Before a polygraph test may be administered the employee must be given written notice stating the specific economic loss, that the employee had access to the property that is the basis of the investigation, and giving a description of the employer's reasonable suspicion of the employees involvement.

If an employer violates the EPPA, an employee or a job applicant may sue the employer for the job, reinstatement, promotion, lost wages and benefits, or even punitive damages.

Except for the US Congress, the law does not prohibit it federal, state, and local government from subjecting their employees to polygraphs.

AIDS Testing

With the spread of the AIDS virus, employees have been concerned about contamination from afflicted coworkers. At the same time, workers with the virus have been concerned that they could be stigmatized and even lose their jobs. Since the test for AIDS is a blood test, the test is an invasive procedure and there are some limits to what an employer can require on constitutional grounds. The Fourth Amendment to the Constitution prohibits unreasonable search and seizure. And courts have held that requiring a blood test for AIDS is a search and seizure; therefore, it must be reasonable. To determine whether a search is reasonable, the court balances the intrusion the testing would cause on the constitutional rights of the person to be tested with the interests said to justify the intrusion. 

Drug Testing

There has been concern about the ability of employees in certain jobs to properly do their jobs while under the influence of drugs. This concern has resulted in private employers and several federal administrative agencies requiring drug testing of employees or prospective employees. The Supreme Court has recognized three government interest that justify random drug testing. These are: (1) maintaining the Integrity of employees in their essential mission, (2) promoting public safety, and (3) protecting sensitive information. For example, Customs Service employees seeking transfers or promotions to sensitive positions, and railroad workers involved in major railroad accidents or who violate certain safety rules are tested for drug use. Courts have upheld random drug testing for employees in order to promote safety.

Of course, since at will employees can be discharged at any time, employers are free to terminate such as employees who refused drug testing even when their jobs cannot be held to involve public safety.

DNA Testing

As DNA a testing has become more reliable it is possible employers might require it of employees for two reasons:

1. To make employment decisions to exclude persons with a genetic "defect"---a greater risk for certain diseases
2. For identification purposes

Many states have laws barring employers from discriminating against employees and prospective employees on the basis of their genetic makeup. These laws prohibit using genetic information when making hiring, promotion, or salary decisions. Victims of genetic discrimination normally can sue their employers for damages. It is likely that more states and the federal government will enact such legislation.

Employees in states that do not have such laws have sued employers for using DNA test results alleging violation of the ADA, the constitutional prohibition on illegal searches and seizures, and Title VII of the Civil Rights Act. Employers should be very careful to ascertain their legal rights before using DNA tests in making hiring, promotion, or salary decisions.

As a reliable method of identifying people, DNA samples could be useful in a number of areas. The military (an employer) takes DNA samples of all personnel to use in identifying remains. The states and the federal government have passed laws setting up DNA databases to use in solving crimes. All states require at least some convicted felons to submit DNA samples to their databases. The courts have almost uniformly upheld the legality of requiring DNA samples from criminals.

Many employers who need to be sure their employees are law-abiding, such as those providing Security Services or dealing with large sums of cash, might want to have prospective employees provide a DNA sample to make sure they are not convicted felons. Just as the military wants to have DNA samples to help in identifying remains, employers of employees involved in hazardous occupations such as firefighters, pilots, and demolition workers would have an interest in having DNA samples for identification. 

*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, PGS. 350-352*

end