This has been an interesting thread. I like the fact that we've seen such a spectrum of opinion, with subtle differences between everybody's viewpoints. It's mostly been carried out in good spirits too, which makes a change for Redscape.

sorry if I said your line is fuzzy, the meaning (in my mind ...not always so clear) is that it can BECOME quite fuzzy and quite easily so. I do understand your position and I am not all that far apart from yours even though it may appear we are miles apart. I appreciate privacy and would not appreciate my employer doing all sorts of tests and investigations into me. And this coming from someone who has nothing to hide, I never do drugs, I go to church, I am happily married and I have done all sorts of community service. I have the occasional drink or two (I have one now!) but that's about it, still I do not want anyone nosing around my private life. But I understand reasons sometimes exist and I also understand all of these things cost the employer money they do not exactly want to spend. I also would insist any such random testing is exactly that...random. I would not want to see the ability for people to be "targeted" and that has not been discussed here at all, trhat would be a big no-no in my book!

But random testing for those employers wishing to pay for such testing of illegal substances is fair in my book as well.

I'd have nothing to fear from a drug test either. That hasn't always been the case but I'm long since past my 'phase' now and so from a personal perspective it wouldn't really be an issue. For me it's more a matter of principle, although I would add that having had personal experiences of taking drugs I do know a little more about their effects on work performance than those of us here who have never dabbled, and that maybe informs my perspective a bit.

I'd like to just pick up on a point that Russ made about the difference between the government intruding on privacy and a private employer doing it. He framed the latter as a conflict between the rights of two individuals as opposed to the former being a conflict between the rights of the individual and the state. I'm not sure that really holds up to scrutiny. It may do in the case of a small business with a single owner (although I'd still tend to favour the right to privacy of course), but in the case of a large business with multiple shareholders then we're not really comparing apples with apples are we ? If it's a publicly listed corporation then the ownership will be distributed between thousands of shareholders, mostly big institutional investors such as pension funds, which means that indirectly it'll be owned by almost everybody who has a pension. I'd be interested to hear from Russ if he thinks that corporate bodies should be entitled to be treated as the equivalent of individuals, and if so why he would distinguish between a major corporation with millions of shareholders and a government with millions of citizens.

bbauska wrote:

Heck Tate wrote:

bbauska wrote:Bad example. Different religions are not illegal.

Why is legality a key factor? What business is it of the bookstore owner's if his employee breaks the law, so long it happens outside of the workplace and has no impact on the job done?

So your point is that an employer has to have a criminal on staff, just because he/she does not break the law while on working hours? Do you really consider that freedom for the employer?

You're framing this in a rather odd way. Let's say I go along with you and say that I do not want an employer to ever "have to" have a criminal on staff. What does that mean for the employee's right to privacy? How far are we going to have to impose upon the employee's personal life before we can be sure that the employer never accidentally hires a criminal? Telescreen-style webcams in the employee's home would be a good start.

Now, back to reality. Nobody can guarantee that any job applicant or employee is 100 percent squeaky clean. It's unreasonable to expect anyone to give up the amount of privacy that would be necessary to even offer a greater-than-50/50 assurance that he is squeaky clean.

I'm still not clear on your rationale, though, Brad. Why is legality a special case on its own? What possible connection could there be between Joe Schmoe's illegal pot habit and his value as a book store employee, assuming he doesn't get high before coming in to work?

GMTom wrote:And HT, if legality were a non-issue, why is it an issue with your teachers example? Why is an issue with the police?

The illegal status of pot has nothing whatsoever to do with my health and safety exception. I would hope that whatever tests are run on my colleagues' urine are looking for excessive amounts of legal intoxicants as well as the illegal variety.

Archduke Russell John wrote:Well, the individual's right to privacy is always the superior position when pertaining to the government. However, I never assume any individual person's rights are superior to another individual person's rights as a default position.

We're talking about two different rights claims here: the right to protection of privacy vs. the right to access private information. Hopefully, most people agree that the right to protection of privacy is, prima facie, always superior to the right to access private information for all people, including the employee and the employer. The employee has no special right to know how much money his boss makes, nor does the employer have any special right to know what his employee gets up to on Saturday nights. Nobody's superior to anyone else.

I would be opposed to random drug tests w/o reasonable cause once some one is employed. However, I believe an ER can decide that he does not like people who use drugs and should not be required to hire them.

I understand the distinction you make, but I am no more comfortable with discriminatory practices in hiring than I am with discriminatory practices in firing.

Sassenach wrote:This has been an interesting thread. I like the fact that we've seen such a spectrum of opinion, with subtle differences between everybody's viewpoints. It's mostly been carried out in good spirits too, which makes a change for Redscape.

Really? The Redscape I remember was always more about debating in good spirits rather than mean spirits. There were always exceptions, of course, but this was always a very civil place in which to argue. Has it changed much over the past while? I haven't been paying much attention to the discussions for the last several months.

Heck Tate wrote:We're talking about two different rights claims here: the right to protection of privacy vs. the right to access private information.

Dude, there is no such thing as a right to access private information. There are three primary rights. The right to life, the right to liberty and the right to property. Privacy fall under the right to liberty. An ER's right to property includes the right to run/operate the property as he sees fit. An EE has a right to privacy. as part of his Right to Liberty. However, when rights conflicit one becomes superior and one become subordinate.

Sassenach wrote: I'd be interested to hear from Russ if he thinks that corporate bodies should be entitled to be treated as the equivalent of individuals, and if so why he would distinguish between a major corporation with millions of shareholders and a government with millions of citizens.

Good question Sass. Legally a corporation is considered an person. I also see a difference between a large corporation and a government. However, I am not sure I can explain it. Let me think about it a little and get back to you ok.

Archduke Russell John wrote:

Heck Tate wrote:We're talking about two different rights claims here: the right to protection of privacy vs. the right to access private information.

Dude, there is no such thing as a right to access private information.

I didn't say we were talking about two different rights; I said we were talking about two different rights claims..."dude". (Not that it makes any difference. One right or rights claim flows out of another, as you yourself state below.)

There are three primary rights. The right to life, the right to liberty and the right to property.

There are three primary rights? According to whom? Did someone go and tear the Periodic Table of Rights out of my textbook?

Privacy fall under the right to liberty. An ER's right to property includes the right to run/operate the property as he sees fit. An EE has a right to privacy. as part of his Right to Liberty. However, when rights conflicit one becomes superior and one become subordinate.

Again, according to whom? Balancing rights sounds like something out of constitutional law class (if memory serves), but I didn't think we were making legal arguments in this thread. It seems perfectly reasonable to me, in a normative discussion of rights, to propose that an employer's right to run his business simply stops short of the private lives of his employees. No overlap, no conflict, no balancing. It seems to me that the balancing only needs to take place if and when the employee's private life begins to interfere with the way the employer's business is conducted (health and safety would be one such overlap; gross incompetence due to intoxication would be another). If the employee's private use of drugs doesn't really cross the threshold of the place of business in any significant way, there is really no conflict of rights worth discussing.

The employer can certainly claim that his proprietary interest in the well being of his business gives him the right to demand personal information from his employees, and there may well be a decent argument based on pure contract theory that will back him up all the way, but that is simply one sort of public policy argument. There is an equally valid argument to the effect that employment contracts should not allow employers to use their bargaining power to extract unreasonable invasions of privacy that have little to no demonstrable utility in the normal course of running the business in question. This doesn't amount to a conflict of rights, mind you. It simply offers us a choice in models for conceptualizing labour contracts: one under which the employer is entitled to demand whatever he pleases in exchange for an offer of continued employment and another under which he is not. Different sets of rights will flow out of the two different models (and neither model will necessarily lead to any sort of conflict or balancing act).

Really? The Redscape I remember was always more about debating in good spirits rather than mean spirits. There were always exceptions, of course, but this was always a very civil place in which to argue. Has it changed much over the past while? I haven't been paying much attention to the discussions for the last several months.

It's become something of a partisan battleground of late. I suppose it hasn't really changed all that much but certainly the atmosphere has deteriorated.

Partisan politics is still alive and well, that's only human nature I suppose. But we almost always get along just fine and honestly, don't you WANT at least some "battleground"? If we all sat around and agreed with each other this would be pretty boring in no time flat.

I agree with this.

Heck Tate wrote:Again, according to whom? Balancing rights sounds like something out of constitutional law class (if memory serves), but I didn't think we were making legal arguments in this thread.

Well, I am an attorney so yeah I am going to think like an attorney and structure my arguments on a legal basis.

Heck Tate wrote: It seems perfectly reasonable to me, in a normative discussion of rights, to propose that an employer's right to run his business simply stops short of the private lives of his employees.

You're abolutely correct it is reasonable to propose that. It is just as reasonable for me to disagree. I do. I believe there are certain times when the property rights can supercede privacy rights.

Heck Tate wrote: It simply offers us a choice in models for conceptualizing labour contracts: one under which the employer is entitled to demand whatever he pleases in exchange for an offer of continued employment and another under which he is not.

Strawman alert. See now you are the one being absolutist. I have never said the employer is entitled to demand whatever he pleases. I, and I think others have said there are limits to what can be required.

Nor have I said it was for continued employment. I have been pretty clear, to the point of saying it flat out, I oppose random drug testing as a condition of continued employment. However, I support requiring a drug test as a condition of an offer and acceptance of employment.

I guess I am the extremist in this thread. Not an absolutist, but certainly on the side of the ER over the EE (I like that moniker). The EE can refuse and accept the repercussions therein. I do have desire for the ER to have the ability to test all employees randomly every 3 months or so. It is done in the US Military. Everyone's job is important, and thus should be open for testing at the employer's choice. (IMHO of course). Is this legal? I know pre-employment testing is, and continued testing is in several occupations. Why not every job if the employer wants this?

The oppositions position is based upon "feelings". They don't feel it is fair to have testing. They don't feel it is fair to have to make a life choice and live with the results. Please show me where an employer is NOT allowed to test randomly and throughout employment.

The employer makes decisions as well. If he/she decides to test more frequently, there might be a drop off in company morale, employee pools, possible loss of expertise. This is the choice the ER must make.

I understand the feelings, I just don't use them to base my decision making on.

Archduke Russell John wrote:

Heck Tate wrote: It seems perfectly reasonable to me, in a normative discussion of rights, to propose that an employer's right to run his business simply stops short of the private lives of his employees.

You're abolutely correct it is reasonable to propose that. It is just as reasonable for me to disagree. I do. I believe there are certain times when the property rights can supercede privacy rights.

As do I (hence my two previously stated exceptions). I just don’t believe the default position should be that private property rights supersede privacy rights...which is why I objected when you invited me to justify the position that the employer has no business asking for a drug test. It’s my view that the onus is on the person who seeks to erode the default rule that personal details are private and none of the employer’s concern.

Heck Tate wrote: It simply offers us a choice in models for conceptualizing labour contracts: one under which the employer is entitled to demand whatever he pleases in exchange for an offer of continued employment and another under which he is not.

Strawman alert. See now you are the one being absolutist. I have never said the employer is entitled to demand whatever he pleases. I, and I think others have said there are limits to what can be required.

How on earth am I erecting a strawman? Where do you see me attributing the contracts-based model to you or anyone in this thread? The full paragraph from which you pulled the above quote reads:

The employer can certainly claim that his proprietary interest in the well being of his business gives him the right to demand personal information from his employees, and there may well be a decent argument based on pure contract theory that will back him up all the way, but that is simply one sort of public policy argument. There is an equally valid argument to the effect that employment contracts should not allow employers to use their bargaining power to extract unreasonable invasions of privacy that have little to no demonstrable utility in the normal course of running the business in question. This doesn't amount to a conflict of rights, mind you. It simply offers us a choice in models for conceptualizing labour contracts: one under which the employer is entitled to demand whatever he pleases in exchange for an offer of continued employment and another under which he is not. Different sets of rights will flow out of the two different models (and neither model will necessarily lead to any sort of conflict or balancing act).

I wouldn't have thought that anyone would read the above paragraph as attributing any particular argument to you or anyone else in this thread, unless you consider yourself to be a member of the absolute freedom of contract camp. If you do subscribe to that view, then I'd imagine that you would go for an all out right of the employer to "demand whatever he pleases". However, I have not seen any indication that you claim to be that sort of thinker, and consequently I see no reason why you should identify yourself anywhere in the above quoted paragraph, including the portion to which you've objected.

Nor have I said it was for continued employment. I have been pretty clear, to the point of saying it flat out, I oppose random drug testing as a condition of continued employment. However, I support requiring a drug test as a condition of an offer and acceptance of employment.

I believe I did use the word "offer" above.