Employee wins for firing after refusing drug test

The courts have held in the past that sending employees for drug tests may be permitted when the employer has reasonable suspicion that they are under the influence of drugs at work. A recent case has held that employers must be able to prove such reasonable suspicion existed at the time of the event.

Ms. Kraslawsky was an Executive Secretary at a company which had a reasonable suspicion drug testing program. One day, a senior manager saw her sitting with her elbows on her knees, looking down at the ground. When she did not move, he asked her what was wrong and allegedly she did not answer. He then called the HR director and told her that he thought Ms. Kraslawsky might be having "female problems."

The HR director then went to Kraslawsky and observed that Kraslawsky's "speech was slurred, that her demeanor was lethargic, that she was swaying, that her eye contact was not there, that it seemed to be deliberate in the answers, it was very controlled and very deliberate." Based on these observations, Kraslawsky was ordered to take a drug test, and when she refused, she was fired.

Both the senior manager and the HR director admitted they had never received formal training on detecting substance abuse. The court also found it significant that Kraslawsky was told to drive herself to the lab for drug testing. After she was fired, she was allowed to drive herself the 60 miles home. These facts implied that the employer did not believe she was truly impaired at the time.

Kraslawsky was allowed to go forward with her suit for invasion of privacy and wrongful termination in violation of public policy.

Kraslawsky also submitted deposition transcripts of the two managers who acknowledged they did not know what was wrong with Kraslawsky, never specifically believed she was under the influence of intoxicants, and had never received formal training on detecting substance abuse.

Under Loder, the constitutionality of a drug test under the California Constitution is evaluated by balancing the employee's reasonable expectation of privacy against the employer's legitimate interests in imposing the test. (Loder, supra, 14 Cal.4th at pp. 889-898.) In the absence of reasonable cause for a particular urinalysis request, the outcome of this balancing test may be different. If a drug test is not triggered by a reasonable belief the employee is intoxicated, the employee may have a stronger reason to expect to maintain his or her privacy and the employer may have less need to demand the test.

These principles apply with particular clarity in this case. Kraslawsky, an executive secretary whose job duties were neither safety nor security sensitive, had a substantial expectation that she would not be required to take a random drug test. As a condition of employment, she agreed to submit to suspicion-based testing; she was not asked and did not agree to random testing. In fact, Kraslawsky was given notice that such action would not occur. The Employee Handbook explicitly states that an employee may be asked to submit to a drug test based on "reasonable cause" to suspect the employee was violating the company's drug and alcohol policy. Based on the Handbook, Kraslawsky could reasonably infer that she would not be subjected to a random test. Further, there are no circumstances particular to Upper Deck's employment environment or Kraslawsky's job position that would have reduced Kraslawsky's expectations of privacy in the context of a random drug test.

By comparison, absent reasonable cause, Upper Deck's legitimate need to require the drug test was substantially reduced. Upper Deck's stated reasons for conducting employee drug tests were expressly premised on a reasonable cause program. Upper Deck admitted it did not use, nor favor, random testing. Additionally, there were other less intrusive ways Upper Deck could have satisfied its objective of ensuring a drug-free workplace, rather than imposing random drug tests on existing employees. (See Loder, supra, 14 Cal.4th at p. 883 ["an employer generally need not resort to suspicionless drug testing to determine whether a current employee is likely to be absent from work or less productive or effective as a result of current drug or alcohol abuse . . . ."] Italics added.)

On the afternoon of March 10, 1992, Poludniak walked by Kraslawsky's desk and "saw her kind of slumped over" at a "45 degree angle" and "[k]ind of like with her elbows on her legs." Poludniak stood there for about 30 seconds, believing Kraslawsky was going to pick something up. When Kraslawsky did not sit back up, Poludniak asked whether everything was okay. Kraslawsky "kind of cranked her head to the right to look at [Poludniak] without moving up and said something again," without making eye contact. Poludniak could not understand what she said. Poludniak asked Kraslawsky where her boss was. Kraslawsky did not respond.

Poludniak then walked back into his office and called personnel director Clift. Poludniak told Clift he believed there was a "problem" with Kraslawsky. Poludniak was concerned Kraslawsky "may be having some sort of female problems and [he] wasn't exactly sure how to handle that." Poludniak said he didn't "know anything about medical stuff so I wasn't sure what I was actually seeing [but] at that time I kind of got this idea something was wrong physically with [Kraslawsky]."

Clift then spoke briefly with Kraslawsky. Clift observed that Kraslawsky's "speech was slurred, that her demeanor was lethargic, that she was swaying, that her eye contact was not there, that it seemed to be deliberate in the answers, it was very controlled and very deliberate." Kraslawsky denied drinking or being on medication. Clift said she "did not know what was wrong with [Kraslawsky] but I had a suspicion that there was something wrong, whether it was medication, whether it was alcohol, whatever, there was a suspicion that she was not acting like Jan Kraslawsky." When asked at her deposition whether she believed Kraslawsky was under the influence of alcohol, Clift responded "I did not know what influence she was under but I did have a suspicion that something was controlling her other than just being tired." Based on the foregoing, Clift and Poludniak made the decision to demand that Kraslawsky submit to a urinalysis drug test.

In opposing summary judgment, Kraslawsky refuted these facts by relying on her own declaration. Kraslawsky stated that when Poludniak first approached her on the afternoon of March 10, she was "sitting up in [her] chair reading some papers." In response to Poludniak's question, Kraslawsky told Poludniak her supervisor was in a meeting in the conference room and pointed to the room. Poludniak "nodded," and said "'have him call me.'" Five minutes later, Clift told Kraslawsky to step into a nearby office and asked Kraslawsky a series of questions. Kraslawsky "answered all of the questions in [her] normal manner of speaking and indicated [she] felt fine." Five minutes later, at about 4 p.m., Clift's assistant told Kraslawsky to "go get a drug test and then come back to work." The drug lab was approximately ten to fifteen miles away. Kraslawsky was required to drive herself to the lab. Kraslawsky has never used illegal drugs, does not drink alcoholic beverages, was not under the influence of prescription medication or other drugs, and was not feeling ill or unusually tired.

Kraslawsky also submitted facts reflecting that Poludniak may have had ulterior motives in demanding the drug test.[FOOTNOTE 9]Approximately one week before he purportedly observed Kraslawsky "slumped over," Poludniak called a lunch meeting with all company executive secretaries. At the meeting, "Poludniak announced that all overtime pay for executive secretaries would cease immediately." Kraslawsky "spoke up in protest." Kraslawsky "said it was not fair that the company would require this of [her] and then not be willing to pay." Poludniak "did not respond, but became very red-faced and appeared upset." The next Monday, Kraslawsky stopped working overtime. Kraslawsky was terminated the next day.

Kraslawsky further relied on additional deposition transcripts of Poludniak and Clift, indicating that neither Clift nor Poludniak had formal training in detecting drug or alcohol use. In her deposition, Clift also admitted she never told Poludniak that she believed Kraslawsky was intoxicated or under the influence of drugs. Instead, after speaking with Kraslawsky, Clift "gave [Poludniak] [her] assessment of the situation and [she] came to the conclusion that [she] was concerned enough to want to find out what [the problem] was [by demanding that Kraslawsky submit to a drug test]."

The evidence also showed that Upper Deck had planned to permit Kraslawsky to drive alone to the medical facility and, when she refused to take the test, allowed Kraslawsky to drive 60 miles home. While such facts are not conclusive of the reasonable cause issue, they are relevant to the analysis and reasonably could support an inference that Upper Deck's drug test demand was random or pretextual, rather than based on objective individualized suspicion.

KRASLAWSKY v. UPPER DECK COMPANY, ___Cal.App.4th___, 97 CDOS 5317 (CA 4, July 3, 1997)

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