Business Ethics and Public Policy
Essay II: Deceptive Advertising

Write an essay about 5 pages long with standard margins, 1.5 spacing between lines, and 12-point font.  Choose 5 of the 7 employee rights cases given below ((I) – (VII)).  For each case, give the employee’s arguments against the drug tests.  Then, create the company’s response to the argument – that is, criticize the employee’s arguments against the drug testing and re-instate the reasons to keep the drug testing and results against the employee.  Finally, explain which side is right, the company or the employee (as if you were a juror listening to both sides).  So, you are writing about a page for each of the 5 cases you choose.

Rhino is a leading manufacturer and distributor of blasting powder, blasting caps, nitroglycerine-based explosives, ammonium nitrate, nitric acid, and sulfuric acid.  Rhino’s main plant is located in the midwestern U.S. and employs approximately 400 nonunion employees, including 40 salaried and 320 hourly workers.  Management at Rhino decided to implement a drug-testing program for all its employees.  Management’s decision was prompted by two events.  First, an explosion occurred at a plant owned by one of Rhino’s main competitors.  The accident at Anit killed 3 employees and destroyed one-third of Anit’s manufacturing capacity.  The cause of the accident was determined to be carelessness on the part of one of the Anit employees who was killed in the blast.  When the employee’s body was examined it was discovered he had a bag of marijuana, and an autopsy indicated he was high on the drug at the time of his death.  Second, about two weeks after the Anit disaster, one of the foremen at Rhino was arrested by police for selling drugs from his home.  These two events convinced Rhino’s management that their employees were not immune to drug use and that the company should take steps to protect its personnel and property.

Rhino adopted the following drug-testing policy:

1.    All new job applicants would be tested as part of their pre-employment physical examination.
2.    All existing employees would be tested whenever there was a sudden, unexplained, or sustained decline in their job performance.
3.    All employees would be tested whenever the employee was involved in an accident, violated a publicized safety precaution, or was reported by a supervisor to have acted in a careless and dangerous manner.
4.    Random, computer-wide testing would be conducted on all employees.  Names would be randomly selected by computer and 50 employees (out of approximately 100 total working for the company) would be tested annually.  (After an employee is randomly selected, his name is not be removed from the pool and he can be randomly selected again.  Each employee has a 50% chance of being tested each year.)

The drug policy included the following provisions.  Job applicants who tested positive for drugs during the pre-employment process were rejected from consideration for employment at Rhino.  Current employees who tested positive were placed on a six-week leave of absence.  At the end of this sex week period, the employee would be retested.  If the employee’s test results were negative, he/she would return to work and be randomly retested 3 times over the next 12 months.  Any employee who tested positive a second time would be discharged permanently.
The drug testing procedure was conducted in the following fashion.  If chosen, the employee signs a drug-consent form and provides a list of all prescription and nonprescription drugs which he or she has taken in the preceding month.  To guard against employees tampering with their urine sample, the company physician witnessed the sample collection procedure for male workers, while the company nurse witnessed for female employees.  After a sample had been obtained, the employee would initial the sample container and watch the container as it was labeled with his/her name.  Next, the sample would be sealed in a tamper-proof pouch which the employee also initialed.  A courier delivered all samples to a local laboratory.  If any pouch showed signs of tampering when it was given to the lab technician, the sample in that pouch would not be tested, and a new sample would be secured.
Urine samples were tested by the Enzyme Immunoassay (EIA) process.  This process screens for the presence of amphetamines, barbiturates, benzodiazepines, marijuana, cocaine, methadone, methaqualone, opiates, PCP, and propoxyphene.  Whenever a sample tested positive, the sample would be retested so as to ensure that the first test was not an error.  If the second sample tested negative, the test results would be considered void, and a new sample would be secured from the employee for retest.
During the initial job interview for new employees at Rhino, all applicants are informed verbally that they will have to complete a preemployment physical that includes a drug screen.  Written notice of the new drug policy was included on the company’s job application form, and prospective employees were required to sign the form to indicate they had been informed of the mandate.
Current employees of Rhino were informed of the new drug policy three months prior to implementation.  A detailed description of the screening program was included in the pay envelopes of all workers, and all current employees were required to sign a statement indicating that they had received a description of the new policy and its requirements.  Signed statements from all employees were retained in Rhino’s personnel office.

Rhino employees began their lawsuits after the drug testing began.

(I)    Steve’s lawyer charged Rhino with violating an employee’s right to a non-discriminatory and non-exploitative work environment.  Steve’s lawyer argued that although he (Steve) had broken no safety precautions at work, Rhino’s policy of random drug testing produced in Steve oppression, anxiety, and insecurity.  The reason for this was what Steve believed to be the real purpose of testing:  to rid the corporation of workers who management believe are malcontents.  As evidence of this, Steve was “randomly” drug tested three times while his friend Brent hadn’t been tested yet.  Second, the drug testing was motivated by malevolent, non-job-related reasons.  Steve had been “randomly” selected for testing since his supervisor had a grudge against Steve because Steve had started dating the supervisor’s estranged wife.
(II)    Samantha’s lawyer charged Rhino with invasion-of-privacy.  The drug test could be shown, her lawyer alleged, to be “highly offensive” to a “reasonable person.”  The test constituted wrongful intrusion upon her privacy.  In the absence of any reasonable suspicion that she was a drug user, the procedure forced Samantha to allow the company nurse to witness the collection of her urine sample, in the restroom.
(III)    Tim’s lawyer brought suit after Tim was tested immediately after he was involved in a minor accident at the plant’s loading dock. Rhino argued that involvement in an accident created a reasonable assumption of drug use on the part of the worker involved since independent studies have shown approximately 50% of all industrial accidents are drug- or alcohol- related.  Tim’s lawyer argued that it was obvious carelessness was not a contributing cause of Tim’s accident, and that forcing Tim to take a drug test without demonstrating a decline in his job performance violates his employee rights and is thus discriminatory.  Further, forcing Tim to take a drug test after his minor accident caused fellow workers and members of the community to suspect that Tim was a drug user.
(IV)    Jonathan’s lawyer brought suit against Rhino because Jonathan was tested after his job performance declined and his absenteeism increased.  Jonathan claimed his job performance was suffering because he was having problems with his teenage son who was addicted to cocaine and alcohol.  Jonathan claimed testing him for drugs in these circumstances was a highly offensive intrusion into his privacy because it held him up to ridicule in the eyes of his son, and thus destroyed any ability he had to influence his son’s actions.
(V)    Ricardo’s lawyer claimed Ricardo should be reinstated after he tested positive for drug use twice and was discharged permanently.  The argument was that the EIA procedure used by Rhino was not as effective as other drug testing methods.  Ricardo’s lawyer argued there are at least two other methods that can be used to test for drug use, thin layer chromatography (TLC), and gas chromatography/mass spectrometry (GC/MS).  Rhino should use one of these procedures in addition to EIA and only discharge employees when they have failed both types of test.
(VI)    David also sought reinstatement after being discharged for two positive drug tests.  David’s lawyer openly admitted David had used marijuana each weekend prior to each of the tests, but claimed that under state law, dependency on drugs is considered a handicap, and as a result, Rhino has a duty to make reasonable accommodations on David’s behalf.  Rather than being terminated, David should be allowed to enter a drug rehabilitation center and then be permitted to return to work once he successfully completes the program.
(VII)    Ray’s lawyer was suing Rhino for denying Ray unemployment benefits after he was discharged after failing his two drug tests.  After testing positive a second time, Ray filed for unemployment compensation.  Rhino refused to sign.  Ray’s lawyer argued that Rhino should sign because Rhino had not shown that Ray’s discharge was for misconduct, which would be the reason to deny Ray his unemployment.  Ray wasn’t guilty of misconduct because Rhino had failed to demonstrate either that Ray had used or was under the influence of marijuana while working (on the clock) at Rhino or that Ray’s performance while working was below par.