A housewares factory in Massillon argues it was entitled to have a lawsuit from current and former employees dismissed because the company’s drug-screening procedure isn’t an invasion of privacy. The employees counter that the method goes too far because monitors directly observed them during the collection of urine samples.

The dispute will be heard by the Ohio Supreme Court next week during oral arguments in Columbus.

Employees File Lawsuit Contesting Drug-Testing Process
Four individuals – current and former employees – sued Sterilite and U.S. Healthworks Medical Group of Ohio, the lab that administered the drug tests. The December 2016 lawsuit stated that employees had undergone drug screenings in the past without issue, but the method the employer implemented that year was “highly offensive to a person of ordinary sensibilities.”

Sterilite ordered urine tests to ascertain drug use. The employer instructed U.S. Healthworks to collect urine using a “direct observation” method, which required the employee to produce a sample in full view of a monitor who was the same sex as the employee. If an employee didn’t provide a sample in 2.5 hours, the company considered it a refusal to submit to a drug test, and refusal to undergo drug screening was grounds for firing.

Three of the employees suing had been selected for random drug screening, and the company ordered the testing of the fourth employee based on reasonable suspicion. The employees said they weren’t told ahead of time about the direct observation method, and they had to show their genitals and urinate in front of the monitor, who looked at their groin area. One employee said she was intensely embarrassed and humiliated because she was forced to reveal surgical scars. Two were fired the day of their drug tests because they didn’t provide a sample in the allotted timeframe.

Common Pleas Court Dismisses Claims
Prior to a trial, the Stark County Common Pleas Court dismissed most of the employees’ claims, including the allegation that the company and the lab invaded their privacy. The Fifth District Court of Appeals reversed the dismissal of the invasion of privacy claim and returned the case to the trial court to reconsider that issue.

The companies appealed separately to the Ohio Supreme Court, which accepted both appeals.

Company Views Direct-Observation Method as Necessary
Sterilite explains that the direct-observation method is employed to ensure that employees aren’t substituting or adulterating their urine samples. Noting that it wants to promote a safe and productive workplace, Sterilite argues it has a legitimate business interest in identifying alcohol and drug use and making certain the samples are valid.

The employer adds that employees accept the drug and alcohol policy as a condition for continued employment, and they signed consent forms from U.S. Healthworks on the day of their tests.

Ohio courts have ruled that employees can’t challenge mandatory drug screenings as an invasion of privacy, Sterilite states. In an at-will employment relationship, the employer notes, an employee can choose to undergo drug screening or leave the job.

Among its similar arguments, U.S. Healthworks contends it didn’t harass, antagonize, or invade the privacy of Sterilite’s employees, and it utilized the employer’s selected drug-testing method.

Employees Maintain Approach Causes Suffering, Humiliation
The employees argue employers don’t have “unfettered discretion” to intrude unreasonably on employees’ most private affairs, such as urination. This case isn’t about an employer’s ability to conduct alcohol and drug screenings, but instead about the process Sterilite used, the employees maintain. The direct observation method is an unreasonable invasion of privacy because it causes “outrage or … mental suffering, shame or humiliation to a person of ordinary sensibilities” by forcing employees to bare their genitals to strangers as a condition of employment, the employees contend, quoting a 1956 Ohio Supreme Court decision.

They add that they weren’t told they’d be directly observed until after signing the U.S. Healthworks consent form.

Objecting to the dismissal of the case before a trial, they also argue a jury should decide whether the evidence supports their claim of invasion of privacy.

Oral Argument Details
On Jan. 28, the Supreme Court will consider Lunsford v. Sterilite and four other cases. The Court will hear four appeals on Jan. 29. Oral arguments begin at 9 a.m. at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, Jan. 28
In State v. Nelson, a Champaign County court revoked a man’s community-control sanction of four years and imposed a 34-month prison sentence. He violated his community-control terms by seeing his girlfriend, who he was ordered not to have contact with, as well as destroying property and engaging in reckless behavior. He argues he should have been given less prison time because a state law limits the length of sentences that can be imposed for certain community-control violations. The prosecutor maintains that his violations were substantive and the law didn’t apply.

In May 2017, a man was cited for speeding on Interstate 480 by a Brook Park police officer using a laser speed-detection device. Appeals courts in Ohio have issued conflicting opinions on how the reliability of speeding devices should be determined by the state’s courts. In Brook Park v. Rodojev, the city is joined by seven other cities in arguing the reliability of speeding devices has long been established, and courts don’t need to hear expert testimony or take judicial notice of the general reliability of the devices in every case. The driver counters that court rules of evidence require expert testimony or judicial notice – neither of which is an undue burden on the government.

Under federal Medicaid rules, states must adopt laws requiring Medicaid recipients to agree that if they file lawsuits against those who caused their injuries, the state is entitled to claim part of any settlement or award granted to reimburse the program for medical expenses it paid. Two Medicaid recipients filed a class-action lawsuit against the state Medicaid department, claiming Ohio’s recoupment law is unconstitutional because it allows Medicaid to take too much of the money the injured recipients receive from the negligent parties. In Pivonka v. Corcoran, the state maintains a trial court wrongly certified the class, and that any challenges to the amount recouped had to be contested either in an administrative appeals process or through the Ohio Court of Claims.

A 2019 law school graduate from Muskingum County is challenging the assessment that she doesn’t have the character and fitness to be a lawyer and that she not be permitted to take the Ohio bar exam until 2024. After her county bar association concluded the 59-year-old nontraditional student possessed the character and fitness to sit for the bar exam, the Supreme Court’s Board of Commissioners on Character and Fitness initiated its own investigation. The board expressed concern that the woman had been involved in almost 60 civil actions during her lifetime and disclosed many unpaid debts, including an estimated $340,000 in student loans. In In re Application of Rodgers, the student argues she has learned from past mistakes and should be allowed to take the bar exam this year.

Wednesday, Jan. 29
A Montgomery County man was indicted on two counts of unlawful sexual misconduct. The charges were based on actions that occurred between October and December 2015. He pleaded guilty and was convicted of one count, a fourth-degree felony . A year later, after further examination of his past, the man was indicted again on two more counts of unlawful sexual misconduct. The charges were based on acts spanning from May 2013 to May 2015. Prosecutors argued that because the man had been previously convicted of the same charge, the two new counts elevated the charges to second-degree felonies, the charge for repeat offenders. In State v. Pendergrass, the Court will determine if the new charges weren’t subject to enhancement because the violation of the law happened before, not after, his first conviction.

A Hamilton County man was charged with molesting his granddaughter during a January 2016 sleepover with three grandchildren at his house. At trial, the prosecutor introduced evidence from a 30-year-old case in which the man was accused – but acquitted of – sexual battery involving one of his daughters. In State v. Smith, the grandfather maintains that considering his acquittal in the current case violated his constitutional protection against double jeopardy and was fundamentally unfair. The prosecutor’s brief states that the grandfather had to show his earlier acquittal “actually determined” he didn’t commit those acts and that the evidence was permitted under an exception to the prohibition against “other-acts” evidence.

A multinational auto-parts maker’s experience with unemployment benefits over the years qualified for an unemployment compensation tax rate at about three times a “new employer’s” rate. The company declared bankruptcy, and two hedge funds formed a new company to buy several of the company’s facilities, including ones in Ohio that employed more than 1,200 people. When the assets transferred, the Ohio Department of Job and Family Services assessed a tax rate to the new owners based on the company’s past experience. In Department of Job and Family Services v. Delphi Automotive Systems, the new owners contend the company is entirely separate from the old company and entitled to a new employer’s unemployment compensation tax rate.

A woman picking up a relative at an Ohio Highway Patrol station in Brook Park in 2016 was found guilty of assaulting a peace officer after the officer said she kneed him in the groin when he was trying to handcuff her. The appeals court ruled that the evidence didn’t support the conviction, and the court modified the assault conviction to disorderly conduct. The Cuyahoga County prosecutor in State v. Fips argues the appeals court only had the authority to order a new trial, not to change the conviction. The woman responds that the evidence weighed against conviction, but that the appeals court failed to let the parties brief this issue. The Ohio Attorney General’s Office will join the prosecutor in oral argument before the Court.