The blanket approach to drug testing has drawn the heaviest fire from civil liberties activists and labor lawyers, who maintain that only workers who appear to be on drugs should be examined.
Three Ventura County lawyers have met with 3M employees in recent weeks to review privacy issues and attract potential "brave souls" to contest the screening in court. Management was not invited.
Critics charge that 3M is violating a state constitutional provision added in 1974 that guarantees privacy--along with life, liberty and property--as inalienable rights.
"I think it's a dead-bang violation of the California Constitution," said Barbara A. Lane, a Ventura attorney specializing in labor law. "I think it's a very coercive test."
"Tests like that are the kind our courts are likely to say are unjustified in undermining privacy," added Richard A. Weinstock, a prominent Ventura lawyer.
Program Open to Attack
Opponents also believe that the 3M program could be attacked on other legal grounds, including state civil rights statutes that forbid discriminatory policies and put the burden on companies to show that testing procedures don't treat workers unequally without cause.
The worker meetings have drawn a sharp reaction from management of the non-union plant.
"They're trying to drive a wedge between me and my employees," Buska declared. "I'd rather spend six months in court defending this program than explaining in court how somebody got hurt in this plant."
About 50 workers attended a meeting in late January, and a handful went to one at Camarillo Library on Thursday night.
They spoke to reporters only on the condition that their names not be used. They expressed concern that urinalysis could supply 3M with information about their private lives, such as prescription medications and pregnancy, and worried that the tests could err and register "false positives."
All complained about being screened when they had no history of drug abuse.
"I've spent over 25 years in the company, and I think I deserve some trust at this point," one employee told the group.
A member of the plant's engineering department said she was looking for another job and may refuse the test when her number comes up. "I don't feel 3M has any right to put me through this harassment. I'm not late for work. I'm not making mistakes," she said.
Second Thoughts
3M's frank admission of drug problems and publicity about the testing has also triggered some second thoughts by managers and employees on discussing the program. Officials declined to permit interviews at the plant, citing workers' complaints that they have been unfairly stigmatized as drug users.
"Some people don't wear their 3M badges in public anymore. They're tired of being asked about drugs at the plant," one employee remarked recently.
Managers have portrayed the screening as a mere inconvenience that promotes safety.
"We believe it complies with all applicable legal requirements and therefore could withstand any legal challenge," a 3M attorney said in a written statement.
"The legal problem could come if you made a mistake, if you accused somebody wrongly," Buska argued.
"There's no question that all of us want to be able to work in a safe environment, free from the fear that our co-workers might involve us in an accident because they are high on drugs or alcohol," Buska wrote in a letter to employees last December. "Providing a medical specimen seems a small price to pay for that kind of freedom."
Uncharted Legal Waters
Yet, 3M has entered uncharted legal waters with its aggressive program.
Critics say no case law directly relates the state's privacy standard to drug-testing programs. Earlier cases have hinged on whether a particular test was inaccurate, or whether a worker was defamed when companies alleged drug use.
Since the 1960s, changes in employee-privacy law in California and other states have limited company discretion in compelling workers to supply information about their personal lives, according to authorities on privacy law. The transformation has been achieved by more liberal personnel practices, evolving judicial doctrines and new legislation, such as California's ban on the use of lie detectors as a condition of employment or continued employment.
But the supremacy of employers' rights has endured, the experts say, with courts holding that a worker--as someone voluntarily agreeing to do private work on private property--retains a less expansive right to privacy than customers or citizens in general.
In such cases, courts will likely study the specifics of the testing and rule on whether they represent a reasonable balance between employee privacy and a company's freedom of action, according to Alan F. Westin, the author of several books on privacy and professor of public law at Columbia University.
Some Plans More Acceptable
