Collective and Individual Approaches to Protecting Employee Privacy: The Experience with Workplace Drug Testing
Louisiana Law Review, Vol. 66, p. 1009, 2006
Washington University School of Law Legal Studies Research Paper Series No. 06-10-03
28 Pages Posted: 15 Oct 2006
This contribution to a symposium on workplace privacy asks what difference it makes to think about workers' rights under a collective as opposed to an individual rights model in a particular context: that of protecting employee privacy. More specifically, it undertakes an examination of the range of disputes between employers and employees over workplace drug testing in the late 1980's and the 1990's, focusing on the differences between cases brought with union involvement and those brought by individual workers acting alone. In doing so, it asks how collective forms of disputing about drug testing differed from individual approaches, and whether these differences affected the ability of workers to assert and protect their interests in personal privacy. What this examination suggests is that unions were far more likely than individual litigants to bring broad-based challenges intended to benefit the workforce as a whole; however, their ability and willingness to do so appeared to depend heavily on both the legal and the bargaining environment. Over time, union-initiated challenges increasingly focused on the application of drug testing policies to particular workers rather than class-wide challenges. Union involvement also influenced how these challenges were framed in legal terms. Disputes channeled through the collective bargaining system emphasized workers' interests in job security, while an individual rights approach more often framed the issue in dignitary terms, alleging claims such as invasion of privacy, defamation or intentional infliction of emotional distress. And although individual litigants occasionally obtained damage awards, they primarily brought after-the-fact challenges to the implementation of drug testing policies rather than seeking prospective, class-wide relief. This exploration suggests that individual privacy rights are not mere substitutes for collective mechanisms that aggregate worker interests. However, deciding how collective and individual rights should be coordinated raises difficult questions requiring further study, including more empirical work to better understand the tradeoffs involved.
Keywords: workplace privacy, drug testing, collective bargaining
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