CHANCERY CLUB LUNCHEON IS BACK! *February 10th @ Noon-12:45pm

Lunsford v. Sterilite of Ohio, LLC: Ohio Supreme Court “Tinkles” with the Clash between the EmploymentAt-Will Doctrine and the Tort of Invasion of Privacy continued from page 24

Appellees’ additional consent was borne from their actions in proceeding with the screening.17 The majority concluded that Sterilite had the right to condition at-will employment from an employee’s general consent to drug testing, that Appellees had the right to refuse to submit to the direct-observation method, and Sterilite thereafter had the right to terminate employees who failed to submit to its procedures.18

In writing for the dissent, relying on federal precedent and guidelines marginalized by the majority, Justice Melody J. Stewart held that Appellees’ invasion-of-privacy claim “ha[d] nothing to do with their status as at-will employees[,]” and that “[A]ppellees' complaint stated sufficient facts to show that Sterilite coerced [them] to submit to the humiliation of having their genitalia directly observed[.]”19 The dissent further found that Sterilite offered no reasonable justification for using the direct-observation method over less intrusive means.20 The dissent further noted that while the employment-at-will doctrine does permit an employer to terminate the employment relationship at any time, it does not permit employers to commit intentional torts, such as invasion of privacy, or terminate an employee for reasons contrary to public policy.21 The dissent emphasized that factual questions remained that were unamenable to Sterilite’s motion to dismiss, including the reasonableness of Sterilite's decision to use the direct-observation method, and Sterlite’s defense of direct or implied consent.22 The dissent averred that the majority had distorted Appellees’ consent by concluding that they had impliedly consented to the direct-observation method, all “without the employee's having a reasonable choice or there being limitations on the testing procedure.”23 The dissent further characterized the majority’s decision as “disproportionately affect[ing] workers who have no meaningful choice and no recourse for their employers' intentional torts.”24

The result from Lunsford is that an employer may provide general policies regarding its expectation for urinalysis screening, and thereafter implement specifics without notice to employees, even if they arguably infringe

virtual Chancery Club Luncheon

February 10th | Noon-12:45 | Zoom

The DBA will be holding our first Chancery Club of 2021 Season!

Susan C. Wawrose, MSEd, JD

Licensed Professional Counselor, Cedarwood Counseling Services and Retired Professor of Lawyering Skills, University of Dayton School of Law will speak on the topic "Staying Resilient During Uncertain Times".

Grab lunch from your kitchen or take a moment at your desk and join us for this great opportunity to check in and eat lunch together - virtually! Reserve Your Spot and RSVP Online! daybar.org

on reasonable expectations of privacy. It cannot be ignored that businesses and government entities have valid interests in ensuring the health, safety, well-being, and productivity of their employees by using drug screening. However, that does not mean that Ohio employers should not be amenable to their atwill employees’ privacy concerns. Lunsford is likely not be the end-all in the clash between the employment-at-will doctrine and the tort of invasion-of-privacy. In fact, employers who use the direct-observation method could be vulnerable to forum shopping, given the apparent discrepancy between Ohio and federal precedent underscored by both the majority and dissent in Lunsford.

A best practice for an Ohio employer that wishes to rely on the direct-observation method may be to explicitly identify the method in all employment contracts, handbooks, and consent waivers, and further outline the actual procedures to be used. Alternatively, employers may rely on less-intrusive means to ensure the health, safety, well-being, and productivity of their employees through urinalysis screening. For example, as a condition of employment, employees could consent to a search before entering the restroom for screening. Audio authentication could be used instead of direct visual observation. Furthermore, a policy could be established providing that the directobservation method may be used when the employer has reasonable suspicion to do so.

Although the effect of the employmentat-will doctrine dominates the majority opinion in Lunsford, the same does not necessarily ring true when implementing best employment practices.

ENDNOTES:

16Id. at ¶ 25-37, citing Sustin v. Fee, 69 Ohio St.2d 143, 431 N.E.2d 992 (1982); see also Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602, 626-627, 109 S.Ct. 1402 (1989). 17Id. at ¶ 40-41. 18Id. at ¶ 38-44. 19Id. at ¶ 47-52, 55, 67. 20Id. at ¶ 53. 21Id. at ¶ 60-61. 22Id. at ¶ 56, 63, 68. 23Id. at ¶ 70. 24Id.