Notes on Employee Rights:Desjardins and Duska's Stuff

Notes: DesJardins and Duska

D & D’s thesis: “…it is rarely legitimate to override an employee’s or [job] applicant’s right to privacy by using such tests or procedures [i.e., drug tests].”

Preliminaries:

-‘Employee right’ defined: “a presumptive moral entitlement to receive certain goods or be protected from certain harms in the workplace.”

-Such rights provide a “prima facie obligation on the part of the employer to provide the relevant goods or refrain from the relevant treatment.”

N.B.: A prima facie obligation is an obligation that one must carry out, except under certain overriding circumstances. For example, one has a prima facie obligation to respect the right to free speech that we share with other citizens. However, if (say), that person yells “Fire!” in a crowded theater (and he or she knows that there is no fire), then, under those circumstances, we do not have an obligation to respect their right to freedom: it is permissible to stop them from shouting “Fire!”.

N.B.: Notice that D & D’s definition of rights and duties include both negative and positive duties. (Cf. Duska’s paper, “Employee Rights and Duties”, for this point, as well as for several of the following points)

-Recall that every right creates a corresponding obligation/duty: if Smith has a right to (say) free speech, then others have an obligation/duty to respect Smith’s right to free speech.

-Positive rights and duties: If Smith has a positive right to X, then someone has a duty/obligation to see to it that Smith gets X (e.g., adequate housing)

-Negative rights and duties: If Smith has a mere negative right to X, then no one has a duty/obligation to see to it that Smith gets X. Rather, they are only obliged to refrain from preventing Smith from having X.

-The role that employee rights play: prevent EE’s “from being placed in the fundamentally coercive position where they must choose between their job and other basic goods.”

-The kind of relationship that exists between two (or more) people determines the kinds of things that are impermissible, permissible, and obligatory for the people in that relationship.

-The kind of relationship that exists between EE and ER, according to D & D: a contract.

-The only kinds of obligations that apply to people in a contract are those mutually and voluntarily agreed upon by the people involved in the stipulations of the contract.

-The fact that the EE/ER relationship is a contractual one implies that the EE retains the right to privacy with respect to certain kinds of information. (Is this a positive or a negative right?)

-The right to privacy defined: A three-place relation between a person A, some information X, and another person B.

-Recall the point above about how the kind of relationship between two (or more) people determines the kinds of things that are impermissible, permissible, and obligatory for the people in that relationship. Now consider the three-place relation mentioned above. With these two points in mind, we see that what counts as private information will depend upon the kind of relationship that exists between the two (or more) people.

-For example, suppose that A and B are neighbors. Then A and B have a neighbor relationship. But the neighbor relationship is not the kind of relationship that allows (say) one neighbor to enter the other’s house and look around when no one is home. That is, B has a right to privacy from A with respect to B’s house and it’s contents (B’s house and it’s contents stand for the ‘X’ in the definition of the right to privacy above), and so A has a negative duty/obligation to respect that right.

-The conditions under which an employee’s right to privacy is violated: (i) B comes to possess some information X about A, and (ii) no relationship exists between A and B that would make it right for B to come to know X about A.

-But there are certain kinds of information about the EE, such that, given the contractual nature of the relationship between ER and EE, it would not be right for the ER to request or obtain such information about the EE.

-Thus, if an ER requests or obtains information about an EE that is not job relevant, then that ER does so without right or justification..


The Master argument of D & D’s paper:

1. The ER/EE relationship is contractual.
2. A contractual ER/EE relationship (as opposed to, say, the parent/child relationship) limits the kinds of information that the ER may rightfully request or obtain about the EE to that which is job relevant.
3. Information about whether the EE uses drugs is not job relevant.
4. Therefore, the ER cannot rightfully request or obtain information about whether the EE uses drugs.


Two arguments for the right of ERs to request or demand drug testing (DT) of EEs, and D & D’s replies to them:


I. The Productivity Argument:

1. EE drug use negatively affects the EE’s job performance.
2. If EE drug use negatively affects the EE’s job performance, then this will, in turn, decrease the productivity of the ER’s business.
3. If EE drug use lowers the productivity of the ER’s business, then if requesting/demanding DTs can
stop or prevent such loss in productivity, then requesting/requiring DT of EEs is job relevant.
4. Requesting/demanding DTs can stop or prevent such loss in productivity.
5. Therefore, requesting/requiring DT of EEs is job relevant.


-D & D’s responses:

-Response 1: D & D think that premise (3) is false. That is, they think that even if drug use lowers the productivity of the ER’s business, it doesn’t follow that DT is job relevant. It would follow that DT is job relevant if (and only if) the EE were required to give the ER optimal performance. But the EE is not required to give the ER optimal performance. Rather, (s)he is only required to give satisfactory performance (i.e., (s)he must exert only as much effort as it takes to do the job in a reasonable amount of time). Thus, if drug use doesn’t affect the job performance of an EE to the point that (s)he can’t do a satisfactory job, DT is not job relevant.

-Response 2: Even in cases where drug use does affect the job performance of an EE to the point that (s)he can’t do a satisfactory job, it still doesn’t follow that DT is job relevant, although it is justifiable to discipline the employee. Notice that the basis for discipline is poor performance, not drug use. But if not, then knowledge of drug use is unnecessary/irrelevant, and so we don’t have justification for overriding the EE’s prima facie right to privacy.

-The moral: The real job-relevant information is information about an EE’s job performance, not it’s underlying causes.

Therefore, the Productivity Argument is a failure.

II. The Harm Argument:

1. EE drug use is known to be a key contributor to much avoidable harm (e.g., to other EEs, to ERs, and to consumers (imagine flying in a plane that’s just been fixed by a person on LSD!).
2. If ERs request/demand DT, then they can prevent such harm.
3. If ERs can prevent such harm by requesting/demanding DT, then DT (and the information obtained by using it) is job relevant.
4. Therefore, DT is job relevant.


-D & D’s responses:

-Some concessions to the Harm Argument:
i. ERs really do have an obligation to prevent avoidable harm. They are also responsible if any such harm occurs.
ii. ERs may even have a right to reduce unreasonable risks.
iii. Therefore, D & D concede that there is at least some justification for requesting/demanding DT, (at least in some cases. See below for an explanation), if such testing is really the best way of preventing such harms (again, see below for an explanation).

-Four criticisms of the Harm Argument:

N.B.: These four criticisms amount to pointing out the need to qualify premise (3) so that it limits the job relevance of DT to a limited number of EEs and job types.

-The basic objection behind the criticisms: just because some EEs use drugs, and just because some kinds of jobs of some such EEs can affect the safety of others, it doesn’t follow that DTs are job relevant with respect to all EEs, working at every kind of job.

-Criticism 1: Drug testing should be limited to those kinds of jobs at which there is a clear and present potential for harm (e.g., pilots, bus drivers, etc.)

-Criticism 2: Drug testing should be further limited to the EEs at the jobs just mentioned who have (say) a dubious employee record, or who show visible signs of (say) intoxication.

-Criticism 3: Even in cases where the above two qualifications apply, the EEs should be informed beforehand (i.e., at the time of the origination of the ER/EE contract) that they will be tested for drug use.

-Criticism 4: EEs should be involved in the development of EE policy on DT.

-The basis for criticisms 3 and 4: (i) Recall that an EE/ER relationship is contractual. But something is a contractual relationship only if the people who bind themselves to its demands do so via informed consent. For this is the essence of a contract. But if EEs are subjected to a DT in a way that is not fully free and informed, then such subjection is in violation of the contract. (ii) If EEs are not allowed to help create DT policy, then there is a risk that the ERs will create the policy in a way that is abusive to EEs. (iii) If a contract is to be genuine, and not a mere “pose”, then the EE and ER must treat each other as equals. But if so, then if EEs aren’t allowed to participate in developing DT policy, then the balance of power, and hence the equality of treatment, could be lost, thus violating the contractual nature of the ER/EE relationship.

-The main objection to the Harm Argument: a counter-argument:

If (a) the knowledge obtained by DT doesn’t help prevent harm, or (b) the testing doesn’t provide the relevant knowledge, or (c) other, more effective, methods of obtaining the relevant knowledge exist, then DTs aren’t justified. But clauses (a) – (c) are true. Therefore, DTs aren’t justified.


-Support for (c):

-Other tests are faster, more effective, and more reliable (e.g., dexterity tests, psychological tests of judgement, perception, memory, etc.). ERs can request that some EEs take such tests before they start the job for the day.

-Support for (b):

-Even if the DTs were fast enough, still, the information they provide isn’t relevant. The relevant information has to do with whether their job performance is hazardous or otherwise unsatisfactory. This information can be obtained by dexterity and aptitude tests. Information about the underlying causes of such behavior, on the other hand, isn’t job relevant.

-The information supplied by DTs is relevant only if it’s been shown that there is a causal link between drug use and harmful behavior, which hasn’t been clearly shown.

-Even if an employee tests positively for being on drugs, such knowledge is relevant only if the use of that drug on that occasion was really a contributor to the performance problem(s).

-Support for (a):

-DTs are too slow in getting the relevant information. The harm is often done before the DT results can be obtained.


-A final concession: DT is, to some extent at least, effective as a deterrent to EE drug use:

-Most effective way to apply the test: random and regular testing.

-If DTs are carried out in this way, then they will prevent harm by:

A. Enabling the ER to discover and fire the chronic user.
B. Deterring the occasional user.

-Even though DTs, when administered in the way just suggested, can prevent harms in the ways mentioned, still, such testing is morally unacceptable. For it violates the privacy rights that apply to the EE/ER relationship. For, by the very nature of the case, random testing is done without probable cause. But then such testing clearly violates EE privacy rights. Compare: Random searching of the homes of American citizens for drugs without probable cause. Clearly, this would violate our right to privacy. But if so, then what’s the relevant difference between random testing of citizens without probable cause on the one hand, and random testing of EEs without probable cause on the other? There is no relevant difference, and so such testing is an unjustified violation of EE privacy.

-Also, it’s not a cost-effective method of preventing harm in the workplace. Dexterity tests, as well as the other tests mentioned, are much cheaper and faster.