Massachusetts (Mandatory State)
 

JAMES A. WEBSTER & another *fn1
v.
MOTOROLA INC. & others. *fn2

S-6461

SUPREME JUDICIAL COURT OF MASSACHUSETTS

July 21, 1994 Decided

HEADNOTES: Summary judgment was correctly entered for the defendants on claims brought by two at-will employees against their employers alleging violation of the Massachusetts Civil Rights Act G. L. c. 12 SEC. 11I where the conduct of the employers in instituting a mandatory universal drug testing program involving urinalysis did not constitute a threat intimidation or coercion where the employees had no right to their at-will positions and where the drug testing program was universal and not directed toward the plaintiffs. [429-430]

In a civil action in which two employees claimed that their employers' institution of a mandatory universal drug testing program violated their right to privacy under G. L. c. 214 SEC. 1B the Court correctly concluded that in light of the nature of the defendants' businesses the plaintiffs' duties and responsibilities and the program's testing procedures which guarantee privacy and ensure accuracy as much as possible the drug testing policy was reasonable as to one employee but not as to the other. [430-434]

Attorneys: David A. Hoffman (Audrey K. Wang & Sarah Wunsch with him) for the plaintiffs.

Paul E. Nemser (David S. Mackey with him) for the defendants.

Warren M. Davison Mark A. de Bernardo & John W. Kyle of the District of Columbia for Institute for a Drug-Free Workplace amicus curiae submitted a brief.

Court: Present: Liacos Abrams Nolan Lynch Greaney JJ.

Author: The Hon. Justice Nolan

This case concerns the propriety of a drug testing program instituted by the defendants Motorola Communications and Electronics Inc. (Motorola Communications) and Codex Corporation (Codex) which are subsidiaries of the defendant Motorola Inc. (Motorola). The plaintiffs James A. Webster and Michael P. Joyce appeal from the summary judgment against them on their claims brought under G. L. c. 12 SEC. 11I (1992 ed.) the Massachusetts Civil Rights Act (MCRA) and Webster appeals the ruling and decision of the trial Court who was also the motion Court in favor of the defendants on his claim under G. L. c. 214 SEC. 1B (1992 ed.) the Massachusetts Privacy Act. The defendants cross appeal the trial Court's decision in favor of Joyce on his claim under c. 214B. We granted the defendants' application for direct appellate review. We affirm. The facts follow.

Motorola is an international manufacturer of various electronic equipment and systems. On January 1 1991 Motorola instituted a universal drug testing program (program) at all of its facilities including those operated as Motorola Communications and Codex. Before 1991 Motorola's employees were subjected to a urine test prior to their employment and otherwise only for cause. Under the program employees are randomly selected by computer for testing. Name selection runs on a cycle such that each employee is selected at least once in a three-year period.

When selected for testing under the program employees are notified and instructed to report to a designated collection site located at or in the area of their Motorola facility. On arriving at the testing location an employee is asked to sign a form authorizing the testing. The employee is given the opportunity to disclose to the technicians any medications he may recently have taken. The employee is then given a cup and is asked to provide a urine specimen. The employee is directed to a private room in which to produce the specimen. A technician stands immediately outside of the room to listen while the employee urinates. Once provided with the specimen the technician while in the presence of the employee examines the specimen for unusual characteristics and records its temperature. The employee is then allowed to leave.

Collected urine specimens are tested by an independent chemical laboratory for the presence of five classes of drugs: marihuana cocaine opiates phencyclidine (PCP) and amphetamines. If a sample tests positive for any of these drugs it is further tested for barbiturates benzodiazepines methadone and methaqualone. Each positive result is reported to a medical review officer (MRO) who is not an employee of Motorola for verification. An MRO meets with each employee who has tested positive and asks them about medications and dietary information in an effort to identify any substances which may have affected the testing. The MRO then reviews the test results and the information obtained during the employee interview to verify the positive test result. The MRO is instructed by Motorola to rule on the side of the employee if the MRO has "discussed or seen evidence from the employee that would substantiate a negative rather than a positive test."

A verified positive test result is reported to a designated staff member in the health services department at Motorola's corporate headquarters. The result is then disclosed to a designated personnel professional for the employee's division who in turn communicates with the employee and a Motorola employee assistance program (EAP) professional. The employee's supervisors are notified only if necessary to restrict the employee's duties or to provide accommodations for the employee. The EAP professional meets with the employee to assess the nature of the employee's drug use. The employee is then referred to an outside provider who diagnoses the employee and recommends a rehabilitation plan. Rehabilitation plans may include education out-patient treatment or in-patient treatment. Employees who refuse to undergo rehabilitation or who otherwise refuse to comply with Motorola's drug testing program are terminated.

James A. Webster was employed by Motorola Communications in Waltham as an account executive. He was an "at-will" employee; his employment relationship with Motorola Communications was expressly terminable "with or without notice at any time and for any reason." At the inception of his employment in 1988 Webster signed a drug testing consent form which at that time concerned only pre employment testing and "for-cause" testing. As part of his employment responsibilities Webster sells communications equipment to various State and local government agencies. His position requires that he drive a company-owned vehicle approximately 20 000 to 25 000 miles a year. On March 2 1992 Webster was informed that he had been selected for testing. He was tested on March 3 after signing the testing authorization form under protest. He chose to be tested rather than face termination under the program.

Michael P. Joyce was employed at Codex as a principal technical editor. Like Webster his employment relationship with his employer was "at will." Joyce primarily edited user manuals for data communications equipment. He also designed and developed product documentation and tested documentation against products. Numerous products for which Joyce edited documentation have been sold to the United States Department of Defense (Defense Department) and the Federal Aviation Administration (FAA). On notice of Motorola's program Joyce objected to Codex management. He was not tested under the program.

This action commenced in the Superior Court on September 26 1990. The plaintiffs' complaint includes claims under G. L. c. 12 SEC. 11I and G. L. c. 214 SEC. 1B and claims for breach of contract and wrongful termination. *fn3 plaintiffs seek declaratory and injunctive relief as well as costs and Counsel's fees. The plaintiffs filed a motion for a preliminary injunction which was denied. After a period of discovery the defendants moved for summary judgment. The motion Court entered judgment in favor of the defendants on all claims except those brought under G. L. c. 214 SEC. 1B. The plaintiffs filed a motion for reconsideration as to their claims under the MCRA which was denied.

Trial commenced on June 12 1992 and was conducted before a Court sitting without a jury. Trial lasted three days. On November 10 1992 the trial Court issued her findings of fact rulings of law and order of judgment. She ruled that Motorola's program violated the privacy act as to Joyce but not as to Webster and she ordered that the defendants be enjoined from testing Joyce under the program. We address the issues.

1. Massachusetts Civil Rights Act. The plaintiffs assert that the defendants violated G. L. c. 12 SEC. 11I by interfering or attempting to interfere with their right to privacy: *fn4 They argue that the defendants' conduct constitutes actionable "threats intimidation or coercion." The motion Court ruled that the alleged conduct of the defendants as a matter of law did not constitute a threat intimidation or coercion. We agree.

Relief under the Massachusetts Civil Rights Act may be granted where the threat intimidation or coercion involves "any interference or attempted interference with any right secured by the Constitution or laws either of the United States or of the Commonwealth." Folmsbee v. Tech Tool Grinding & Supply Inc. 417 Mass. 388 392 630 N.E.2d 586 (1994). In the present case the defendants conditioned the plaintiffs' continued employment on their submission to the program. The plaintiffs were employed "at will." Thus the defendants allegedly attempted to interfere with the plaintiffs' rights by threatening the loss of their "at-will" positions. This is not actionable conduct. No physical confrontation is alleged and because the plaintiffs were employed "at will they had no contract right to their positions.

Furthermore, meritorious claims for which this court has granted relief under the Massachusetts Civil Rights Act . (generally) involve[] measures directed toward a particular individual or class of persons." Bally v. Northeastern Univ. 403 Mass. 713 718-719 532 N.E.2d 49 (1989). In this case the plaintiffs' employment was conditional on their participation in the defendants' universal drug testing program. The program involves indiscriminate, impartially administered testing, and is not comparable with the direct assault found in cases where we have granted relief under the Massachusetts Civil Rights Act. Id. at 719.

Summary judgment was properly entered for the defendants.

2. Right to privacy. The plaintiffs assert that the defendants' universal drug testing program violates the plaintiffs' statutory right to privacy as provided in G. L. c. 214 SEC. 1B. *fn5 The trial Court concluded that the defendants' program violated the rights of Joyce but did not violate the rights of Webster. Webster argues error in the trial Court's decision claiming that the defendants' interest in testing him is outweighed by his privacy interests. The defendants argue that the trial Court erred in her determination as to Joyce claiming that their legitimate business interests outweigh Joyce's privacy interest. There is no error.

General Laws c. 214 SEC. 1B protects an individual's privacy from unreasonable, substantial or serious interference. To determine whether an employer's drug testing policy violates its employees' rights under SEC. 1B we employ a balancing test: "We balance[] the employees' interest in privacy against the employer's competing interest in determining whether [its employees are] using drugs." Folmsbee v. Tech. Tool Grinding & Supply Inc. supra at 392 and cases cited. We note As . . . private employers, [the defendants] [are] not subject to the more stringent requirements of probable cause that govern public employers. Id. at 393 n.7 citing Horsemen's Benevolent & Protective Ass'n Inc. v. State Racing Comm'n.403 Mass. 692 706 532 N.E.2d 644 (1989). We examine the interests of the parties.

"We have recognized that requiring an employee to submit to urinalysis involves a significant invasion of privacy." Folmsbee supra at 392 citing O'Connor v. Police Comm'r of Boston 408 Mass. 324 328 557 N.E.2d 1146 (1990) and Horsemen's Benevolent & Protective Ass'n Inc. v. State Racing Comm'n supra at 704. "The act of urination is inherently private Folmsbee, supra at 393, and beyond the act itself, individuals have a privacy interest in what may be detected through urine testing. Horsemen's Benevolent & Protective Ass'n, Inc., supra at 700 ( an individual has reasonable expectations of privacy regarding the information which can be extracted from a urine specimen"). Additionally to the extent that it may be requested to rebut an initial positive test result information concerning an employee's medical conditions is also within the realm of one's privacy interest. See Id.

"On the other side of the balance is [the defendants'] legitimate business interest." Folmsbee supra at 393. We have stated that "an employer may have a substantial and valid interest in aspects of an employee's health that could affect the employee's ability effectively to perform job duties." Bratt v. International Business Machs. Corp. 392 Mass. 508 524 467 N.E.2d 126 (1984). The nature of the employee's business and the nature of the employee's duties are relevant factors in determining the gravity of the employer's interest. See Folmsbee supra.

Motorola designs manufactures and sells various electronic equipment in international markets. Its products include two-way radios pagers cellular telephones and systems semiconductors defense and aerospace electronics automotive and industrial electronics computers data communications equipment and information processing equipment. These are used in consumer products such as air bags ignition systems controls braking systems and steering mechanisms and are also sold to the government for various applications including radar systems ground-to-air communications and two-way communication systems designed for State and local police and fire departments. Motorola Communication's product line includes two-way communications systems and Codex's line includes data communications equipment and defense and aerospace electronics which are sold to various corporations in the retail banking and airline industries as well as to the FAA the Defense Department and the White House.

Webster was employed by Motorola Communications as an account executive. His responsibilities included sales of communications equipment to various local and State agencies. His position required him to drive a company-owned vehicle approximately 20 000 to 25 000 miles a year. Joyce was employed by Codex as a technical editor. His duties included designing and editing technical documentation for various data communications. Some of the equipment for which he edited documentation was sold to the Defense Department and the FAA.

With respect to Webster Motorola Communication's and Motorola's legitimate business interests justify their random drug testing program. The defendants as do all businesses have a general interest in protecting the safety of their employees and in providing them a drug-free environment in which to work. This interest alone however is not sufficient. Motorola Communications and Motorola had the added interest in ensuring that Webster not operate their motor vehicle while intoxicated by drugs; this interest included protecting Webster's safety and the safety of others preventing corporate liability and protecting corporate property. In the circumstances the defendants' legitimate business interests are sufficient to outweigh Webster's privacy interests.

With respect to Joyce the interests of his employer Codex and Motorola are not sufficient to outweigh his privacy interests. Although his job duties are such that errors could possibly result in harm to human health and safety or to national security the trial Court rightly determined that "the nexus between his job duties and the harms feared is attenuated." Joyce primarily is an editor of technical texts; he is not a principal writer. His work is checked by others before release. In fact the Court found that Motorola conceded that "it is unable to predict whether any of the manuals or updates which Mr. Joyce is editing . . . are likely to affect national security or human health and safety."

Joyce does not have a security clearance nor does he work directly on matters of national security. The Court concluded that Motorola . . . has not demonstrated that the proprietary information in question is sufficiently sensitive to justify drug testing. Motorola merely asserts that Mr. Joyce has access to proprietary information and does not identify the nature of the information protected nor the risk of harm sought to be prevented. The Court balanced that fact against Joyce's privacy rights. See Folmsbee supra at 392. Based on the evidence the Court concluded that "the balance tips in favor of the employee." The Court did not foreclose the possibility that Joyce's job duties may change. The Court noted that if Joyce's duties "entail an immediate risk to health and safety the balance would shift in favor of Motorola.

The Court recognized that the balancing of interests involves a factual inquiry. She considered the nature of the employee's duties, as well as the safety risk to the employer, the employee, and the public. See Folmsbee, supra at 393. The Court's factual findings are supported by the record, and her conclusions follow the law as stated by this court and the Supreme Court of the United States . See National Treasury Employees Union v. Von Raab,489 U.S. 656, 678, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989); Folmsbee, supra at 392-393; Bratt, supra at 518-519. There is no error in her conclusion that the legitimate interests of Codex and Motorola are not sufficient to outweigh the privacy interests of Joyce.

Motorola's testing program is not otherwise unreasonably intrusive. The individual being tested is not observed while urinating, nor is he or she visually inspected during the procedure. Cf. Folmsbee, supra at 393. The only information ultimately reported to Motorola is whether traces are discovered of any of the five drugs for which the sample was tested, and before being reported, test results are first verified by an independent MRO. The Court found that the laboratory which tests the specimens utilizes a highly accurate state-of-the-art technique." The Court further found Though not subject by law to [them], Motorola's testing procedures adhere to or give employees more protection and privacy than the ( United States ) Department of Health and Human Services Mandatory Guidelines for Federal Workplace Drug Testing Programs.

We conclude that in light of the nature of the defendants' businesses the plaintiffs' duties and responsibilities and the program's testing procedures which guarantee privacy and ensure accuracy as much as possible the defendants' drug testing policy was reasonable as to Webster but not as to Joyce.

1. Conclusion. We therefore affirm summary judgment in favor of the defendants on the plaintiffs' civil rights claims and we affirm the Court's decision on the plaintiffs' claims brought under G. L. c. 214.

---------------------------------------------------------NOTES---------------------------------------------------------------

*fn1 Michael P. Joyce.

*fn2 Motorola Communications and Electronics Inc. and Codex Corporation.

*fn3 Since the commencement of this action both the commencement of this action both plaintiffs have left the employ of the defendants. This does not affect our review of the issues here presented; the plaintiffs still have standing to pursue their civil rights claims and as the Superior Court Justice declared that the defendants' program violated G. L. c. 214 we review that issue as well.

*fn4 General Laws c. 12 SEC. 11I (1992 ed.) reads in part as follows: Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in [SEC. ] 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief . . . .

General Laws c. 12 SEC. 11H (1992 ed.) to which SEC. 11I refers reads in part as follows: "Whenever any person or persons whether or not acting under color of law interfere by threats intimidation or coercion or attempt to interfere by threats intimidation or coercion with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States or of rights secured by the constitution or laws of the commonwealth the Counsel general may bring a civil action . . . ."

*fn5 General Laws c 214 SEC. 1B (1992 ed.) provides: "A person shall have a right against unreasonable substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages."