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Baughman v. Wal-Mart Stores, Inc. - 215 W. Va. 45, 592 S.E.2d 824 (2003)


In West Virginia, the principles of the Twigg doctrine do not extend to the pre-employment situation.


Appellant-plaintiff Stephanie Baughman was offered a job by appellee-defendant Wal-Mart Stores, Inc.; however, prior to the appellant’s starting work, Wal-Mart required her (and allegedly all other prospective employees) to first give a urine sample that Wal-Mart would test for results that may indicate illegal drug use. The appellant gave the urine sample and thereafter began working at Wal-Mart; she later left her employment at Wal-Mart for reasons apparently unrelated to the instant case. The appellant subsequently filed the present suit against Wal-Mart, arguing that Wal-Mart's pre-employment requirement of giving a urine sample for drug testing after being offered a job, but before starting to work, was per se an actionable invasion of the appellant's privacy. The appellant further argued that Wal-Mart had, by requiring the sample, caused the appellant embarrassment, indignity, humiliation, annoyance, inconvenience and other general damages. The appellant then filed a motion for partial summary judgment on the issue of liability. Wal-Mart filed a cross-motion for summary judgment on the same issue. The circuit court granted summary judgment to Wal-Mart, holding that the appellant had not shown an actionable invasion of privacy in Wal-Mart's requiring her to submit a urine sample for drug testing before she began to work for Wal-Mart. In its current petition, appellant argued that on the strength of Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990), it was contrary to public policy in West Virginia for an employer to require an employee to submit to drug testing because it was an invasion of an individual’s right to privacy.


Did the pre-employment requirement of giving a urine sample for drug testing violate the appellant employee's right to privacy?




Affirming, the appellate court held that the pre-employment requirement of giving a urine sample did not violate the appellant’s right to privacy. According to the court, in the pre-employment context, a person clearly has a lower expectation of privacy. Employers would regularly perform pre-employment background checks, seek references, and require pre-employment medical examinations, etc., that were far more intrusive than what would be considered tolerable for existing employees without special circumstances. Giving a urine sample was a standard component of a medical examination. While the Twigg doctrine stipulated that the employee’s right of privacy was not outweighed by the employer's rights and interests unless specific heightened safety concerns or well-grounded individualized suspicion was present, this principle did not extend to pre-employment situation, and thus did not preclude the granting of summary judgment to Wal-Mart in the instant case. The appellate court held that appellant employee put forth no facts that would show that her right to privacy was violated. Notably, the court cautioned that in making its decision, it was particularly mindful of the specter of a court-created "slippery slope" in this evolving area of law.

As for the applicable standard of review: West Virginia appellate courts review a grant of summary judgment de novo.

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