Many states put requirements on testing, such as a reasonable suspicion of theft or drug abuse. There is also a common law invasion of privacy and reckless or even negligent infliction of emotional distress if the employer’s conduct is outrageous. In determining the reasonableness of the employer’s conduct, the courts balance the employer’s reason for the test against the extent of its intrusion on the employee.
Other claims include wrongful discharge based on a public policy and defamation. Two exceptions to the defense of wrongful discharge are that the employer has a reasonable good faith suspicion of an employee’s drug use and that the employee’s job responsibility involves public safety. Defamation requires intentional injury resulting from publication of false statements about another.
Many courts hold, however, that in the private sector (where there is no employment contract) employers have every right to test employees. If the employees don’t like it they can leave.
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