John B. Dilworth's Commentary on "Drinking in the Workplace"
Author(s):
John B. Dilworth
This case gives the initial impression of involving several
distinct (though related) issues about drug use, with each
requiring a separate discussion based on a variety of
considerations. Nevertheless, a central common theme is
provided by the issue of the privacy rights of workers. Our
discussion will concentrate on this all-important aspect of the
situations described in the case.
In terms of privacy rights, the critical issues of the
present case concern whether Branch, Inc. has a right to know
specific items of information concerning the property or
behavior of their workers. One useful clear case is provided by
the following example. Suppose workers may rent private lockers
from Branch Inc., in which they could keep any personal items
they might want to use at work (lunchboxes, coats, radios,
etc.) Suppose that John Crane happens to see that Andy Pullman
regularly has a bottle of whiskey in his locker, with a
fluctuating level suggesting a pattern of frequent
consumption.
Should John talk to Andy about this (as a concerned employee
of Branch, Inc. rather than as a friend), or even tell the
company about what he has seen? No he shouldn't, because what
Andy has in his locker and the use he makes of it is nobody's
business but his own. If Branch Inc. is concerned about this
possibility, they should stop renting private lockers, or issue
a specific regulation forbidding use of them to store alcohol,
or forbidding consumption of alcohol so stored. Workers could
then conform to or challenge these regulations in court. If
Branch does neither of these things, (stopping renting, or
issuing regulations) then they have no right to know the
information. Hence John as an employee has no business to be
nosing around discovering such items of information on behalf
of Branch Inc.
We can extract the following general principle from this
'locker' example. A worker has privacy rights in all
information about their property and actions on the job, except
for those items which are specifically provided for or
specified as non-private in the contract under which they work
(which contract includes any ongoing changes in regulations
etc.).
The initial situation actually described in the present case
is quite similar to the 'locker' case. It differs only in how
John acquires information about Andy's alcohol use: he detects
alcohol on Andy's breath at various times in the day. Our
question is, does Branch Inc. have a right to know this
information? Branch has a right to it only if Andy does not
have a right to privacy with respect to the information.
In terms of our general principle stated above, the question
becomes whether Andy's contract with Branch Inc. specifically
provides that Branch is entitled to acquire or make use of
information about what Andy's breath smells like. Almost
certainly there is no such specification or implication in the
contract, and therefore Branch has no right to the information.
Thus as before, John shouldn't try to acquire for Branch
information which they have no right to know. So he shouldn't
pass on or reveal such information (or implications from it
which he might draw) to other employees of Branch, whether or
not they are in higher management positions. If Branch wants to
detect alcohol use through breath tests, they should do so by
proposing specific regulations, and re-negotiating the
employment contracts of all affected workers.
This leads us to the issue of mandatory random drug testing,
proposed by Branch and mentioned at the end of the present
case. Is this, as in the union's view, an "unwarranted invasion
of the privacy of workers"?
Well, at least Branch Inc. is going about this the right
way, by proposing a regulation rather than by \relying on an ad
hoc network of spies or informants to achieve their goals.
Also, if one accepts the account given here of individual
privacy in the workplace, the question of which issues are
privacy rights and which are not is generally open to
negotiation between management and workers. Those objecting to
the ethics of mandatory drug testing would have to give
compelling reasons why this issue should not be settled by
negotiation.
In the U.S. constitution, the only available "compelling
reasons" for non-negotiation are provided by the provisions
regarding 'unalienable rights'. These are rights which legally
cannot be voluntarily given up by a person, and which hence are
not subject to negotiation. Examples are the right not to be
enslaved, or the right not to be medically experimented upon
with hazardous substances. However, there are no explicit
provisions regarding privacy rights in the constitution, so
each proposed case has to be legally established through a long
and arduous process. In the present case, there is no current
provision saying that one cannot give up a right not to be
tested for drug use. So the burden of proof is on those who
find mandatory testing morally objectionable. They need to make
their case strongly enough to produce a corresponding change in
constitutional law on the topic. (Analogous points would apply
in other, non-U.S. legal systems).
Finally, is Branch, Inc.'s proposed testing discriminatory
and unjust, in that professionals are exempted from it? Clearly
there are various moral objections which one might make to
this. But are any so compelling that it should be illegal to
institute or freely negotiate such a policy? No, because if we
agree that workers and management have the right to negotiate
working conditions as they see fit, then society shouldn't
interfere in the process (other than on constitutional grounds,
as discussed above). We may agree that Branch's proposal is
stupid and short-sighted, in that it would create resentment
and damage the morale of the workforce. But the proper remedies
are such things as worker demands that the whole policy should
be withdrawn, or that professionals and managers should be
included in any testing.