Lunsford v. Sterilite of Ohio, LLC: LLC: Ohio Supreme Court “Tinkles” with the Clash between the Employment-At-Will Doctrine and the Tort of Invasion of Privacy
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n August 26, 2020, the Ohio Supreme Court held that when at-will employees provide urine samples for mandatory drug testing under a “direct-observation method[,]” they cannot sue their employer for invasion of privacy. In Lunsford v. Sterilite of Ohio, LLC, Appellant Sterilite of Ohio, LLC (“Sterilite”) had a workplace substance-abuse policy as a condition of at-will employment.1 The policy provided that urinalysis screening would be used to test employees’ illegal or improper drug use, but was silent on the method for collecting samples.2 The policy further provided that after a supervisor instructed an employee to report for urinalysis screening, if the employee did not produce a sample within two and a half hours, they were considered to have refused the screening and would be terminated.3 In 2016, Sterilite hired a private company to administer urinalysis screening, and required it to collect samples using what it called the “direct-observation method.”4 Under this method, a same-sex monitor would accompany each employee into the restroom and visually observe them produce their sample.5 When Appellees were instructed by Sterilite to report for urinalysis screening, they complied without objection.6 Prior to screening, Appellees also executed a consent form, which identified that they agreed the administrator could “perform any testing necessary[.]”7 However, Appellees were only notified that the direct-observation method would be used after they reported to the designated restroom.8 Nonetheless, Appellees proceeded with the screening under the direct observation method without objection. Although two Appellees produced a urine sample, the remaining two Appellees were unsuccessful in doing so within two and half hours.9 Therefore, Sterilite terminated the remaining two Appellees.10 In December 2016, Appellees filed a complaint with the Stark County Common Pleas Court, which included a claim for invasion of privacy against Sterilite.11 Appellees argued it was an unreasonable invasion of privacy for them to submit urine samples under the direct-observation method, which was “highly offensive to a person of ordinary sensibilities,” and should be balanced against Sterilite’s legitimate business interests.12 Appellees further relied on federal administrative guidelines to support their arguments.13 In May 2017, 24
Dayton Bar Briefs February 2021
By Michael D. Rice Esq. Freund, Freeze & Arnold mrice@ffalaw.com | 937.222-2424 the trial court granted Sterilite’s motion to dismiss under Civ. R. 12(B) (6) and held that Ohio does not recognize an invasion-of-privacy claim by an at-will employee based solely on an employer's use of the direct-observation method, particularly when the employee consents to drug testing as a condition of their employment.14 However, in August 2018, the Fifth District Court of Appeals reversed the trial court’s decision, holding that Appellees had stated a valid invasion-of-privacy claim under the Ohio Supreme Court’s decision in Housh v. Peth, and that they had a “reasonable expectation of privacy with regard to the exposure of their genitals.”15 On August 26, 2020, in a 4-3 decision, the Ohio Supreme Court reversed the Fifth District Court of Appeals’ decision. In considering the underpinnings of the employment-at-will doctrine and commonlaw tort of invasion of privacy, and further recognizing distinct U.S. Supreme Court precedent, the majority held that because Appellees had consented to the direct-observation method, they could not pursue their common-law invasion-of-privacy claim. The majority reasoned that although Sterilite’s substance-abuse policy and consent form did not specifically identify that the direct-observation method would be used for urinalysis screening, that “does not change the outcome” since continued on page 25 ENDNOTES:
Lunsford v. Sterilite of Ohio, LLC, 2020-Ohio-4193, ¶ 3 (Aug. 26, 2020). 2 Id. at ¶ 4. 3 Id. at ¶ 5. 4 Id. at ¶ 6. 5 Id. 6 Id. at ¶ 7. 7 Id. at ¶ 8. 8 Id. at ¶ 9.
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Id. at ¶ 10. Id. 11 Id. at ¶ 11. 12 Id. at ¶ 11-12. 13 Id. at ¶ 13. 14 Id. at ¶ 14. 15 Id. at ¶ 15, citing Housh v. Peth, 165 Ohio St.35, 133 N.E.2d 340 (1956). 9
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