A California appellate court affirmed an award of emotional distress to two employees who felt pressured to submit to a random drug test. Aro v. Legal Recovery Law Offices, Inc., Case No. D065422 (unpublished) (Cal. Ct. App. Apr. 8, 2015).

Plaintiffs Aro and O’Toole were employed as debt collectors by Legal Recovery Law Offices, Inc. (“LRLO”). They had access to personal information of others such as social security numbers and credit reports. Neither was subject to pre-employment drug testing. The Company generally did not conduct any post-employment drug testing, until the tests at issue in October 2011. The employee manual was revised in 2011 to state that the Company “reserved the right” to conduct drug or alcohol testing “after an accident or with probable cause of impairment while on the job.”

In October 2011, Aro and O’Toole (along with others) were unexpectedly asked to take a drug test. This “random” test occurred on the heels of complaints they lodged regarding unpaid overtime pay. They were told to execute consent forms, told to report to the public bathroom and provide a sample.

Aro objected. In response, a manager advised that his refusal would result in being sent home and the Company would “figure out what to do” with him. Inferring this statement as a threat against his job, he consented, provided his urine sample in a public bathroom while someone watched. He apparently tested positive for marijuana but never was given the result of the drug test.

Similarly, O’Toole (who was a cancer patient with a medical marijuana card) initially objected. Again, a manager told him his refusal would result in the company having to “figure out what to do” with him. O’Toole testified that he started to panic because he knew he would test positive due to his use of medical marijuana. He attempted to provide a urine sample while two men stood outside the bathroom stall, but physically could not. When he went back to his desk to drink more water, he learned his e-mail account was blocked. He refused to submit to any further testing. Afterwards, he emailed his concerns to a supervisor, stating that he objected to the “captive random” drug testing which he believed to be illegal, and the “gestapo” standing outside the stall. Soon thereafter, O’Toole claimed work was diverted away from him, his production (and compensation) decreased, and he could not afford both his cancer medication and food. Ultimately, Aro and O’Toole were terminated several months thereafter (though allegedly not because of the drug test results).

LRLO maintained that the drug tests were triggered by allegations of “rampant drug use” at the Company and were “voluntary.” The Company maintained that no adverse actions were taken as a result of the drug tests.

Aro and O’Toole asserted claims for intentional infliction of emotional distress, among other things. After a bench trial, the trial judge awarded them approximately $15,000 each for noneconomic damages and $1 in exemplary damages. LRLO appealed.

The Court of Appeal affirmed the trial court ruling. First, the Court determined that the Workers’ Compensation exclusivity rule did not prevent Aro and O’Toole from recovering monetary damages for emotional distress. The Court reasoned that the random drug test administered in this case violated a fundamental right to privacy, which is protected by the California Constitution, and therefore the employer could not “hide behind the shield of workers’ compensation.” As debt collectors, Aro and O’Toole did not occupy “safety or security sensitive” positions and so the random drug test was “unreasonable and outrageous.”

The Court also concluded that LRLO’s conduct was sufficiently extreme and outrageous to constitute intentional infliction of emotional distress because: (1) there was no notice of the “random” unannounced drug tests; (2) there was no individualized suspicion of Aro and O’Toole; (3) when they objected to the testing, they were told that they would be suspended and the Company “would figure out” what to do with them; (4) they were required to stand in line and sign a consent form in the presence of other employees; (5) they were observed while providing urine specimens; (6) they felt threatened and intimidated because they had complained about unpaid overtime; and, (7) they were never given their drug test results. Both Aro and O’Toole testified that they suffered severe emotional distress, including “anguish, nervousness, anxiety, worry, humiliation and shame.”

California employers must be cognizant of the privacy issues implicated by “suspicion-less” workplace drug and alcohol tests. Random testing in California will not outweigh employees’ privacy interests where the employees to be tested are not “safety-sensitive.” Employers should review their drug testing policies to ensure that all drug and alcohol tests comply with all applicable laws.