Wilkinson v. Times Mirror Corp., No. A042625

• Court: California Court of Appeals
• Writing for the Court: STRANKMAN; WHITE, P.J., and BARRY-DEAL
• Citation: 215 Cal.App.3d 1034,264 Cal.Rptr. 194
• Parties: , 58 USLW 2322, 4 IER Cases 1579 Kathleen WILKINSON et al., Plaintiffs and Respondents, v. TIMES MIRROR CORPORATION et al., Defendants and Appellants.
• Decision Date: 17 November 1989
• Docket Number: No. A042625

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264 Cal.Rptr. 194 215 Cal.App.3d 1034, 58 USLW 2322, 4 IER Cases 1579 Kathleen WILKINSON et al., Plaintiffs and Respondents,
v.
TIMES MIRROR CORPORATION et al., Defendants and Appellants. No. A042625. Court of Appeal, First District, Division 3, California. Nov. 17, 1989.
Review Denied March 15, 1990.

[215 Cal.App.3d 1037]

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Gibson, Dunn & Crutcher, Rex S. Heinke, Pamela L. Hemminger, Kelli L. Sager, Sheila R. Caudle, Los Angeles, Schachter, Kristoff, Ross, Sprague & Curiale, Victor Schacter, Thomas E. Geidt, San Francisco, William A. Niese, Los Angeles, for defendants and appellants.

Edward M. Chen, Matthew Coles, American Civil Liberties Union of Northern California, Christina Hall, Charlotte Fishman,

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Hall & Fishman, Steven L. Mayer, Kirk E. Trost, Howard, Rice, Nemerovski, Canady, Robertson & Falk, John M. True, Christopher Ho, Employment Law Center, a project of the San Francisco Legal Aid Society, San Francisco, for plaintiffs and respondents.

Darrell S. Steinberg, Cindy Parker, California State Employees' Association, Sacramento, for amicus curiae on behalf of plaintiffs and respondents.

STRANKMAN, Associate Justice.

Article I, section 1 of the California Constitution declares that privacy is among the people's "inalienable rights." The principal question in this appeal is whether a private employer violates that constitutional provision by asking all job applicants to consent to a urinalysis which tests for alcohol and other drugs as a condition of an offer of employment. The applicants have notice of the drug-testing policy, and the sample is collected during a regular preemployment physical examination conducted by medical personnel, under conditions designed to minimize the intrusiveness of the procedure and restrict access to the test results. We have concluded that under all these circumstances, the employer's preemployment drug-testing policy is not unconstitutional.

I

The Times Mirror Company (Times Mirror) is a company engaged in publishing and in broadcast and cable television. Matthew Bender & Company, Inc. (Matthew Bender), one of several Times Mirror subsidiaries, publishes books and other materials used primarily by attorneys and accountants. Of the approximately 1,400 persons employed by Matthew Bender nationwide, about 15 percent work in the company's Oakland office.

In 1985 Times Mirror asked each of its subsidiaries to establish a drug and alcohol abuse program prohibiting the unauthorized use or abuse, sale, transfer or possession, or being under the influence of alcohol or drugs on company property, in company vehicles, or during working hours. Matthew [215 Cal.App.3d 1038] Bender adopted such a policy. Later, again at the request of Times Mirror, Matthew Bender adopted a policy providing for preemployment physical examinations including a drug and alcohol test for all job applicants; that policy became effective in April 1987.

Applicants for positions such as legal writer, copy editor trainee, and indexer trainee at Matthew Bender must complete an application, take a written test, and participate in a preliminary and a final interview before a conditional offer of employment is made. Successful applicants who receive a conditional offer of employment are informed that the offer is contingent upon taking and passing a medical examination, which includes a medical history, certain diagnostic tests, and a test for drugs and alcohol.

Applicants who accept the conditional offer are referred to Readicare, Inc., a medical clinic with offices in San Francisco and Oakland. Applicants who are examined are asked to report all medications taken within the last 72 hours. The collection of the urine sample takes place during the examination; the act of urination is unobserved. The sample is then sent for testing to National Health Laboratory, a division of defendant Executive Health Examiners. The sample is tested by the Enzyme Multiplied Immunoassay Technique (EMIT) and/or Fluorescence Polarization Immunoassay (FPIA); any sample testing positive is retested independently with gas chromatography/mass spectrometry (GC/MS).

Based on the results of the preemployment physical and the urinalysis, applicants are assigned a numerical suitability rating from one to five. A rating of five means "[n]ot recommended for employment due to medical reasons or in accordance with employer's policy on alcohol or drugs." A positive finding on the drug and alcohol test is reported as a rating of five, but that rating can also result from some other disqualifying medical condition. No medical information revealed during the test is reported to Matthew Bender; instead, the company is informed only of the suitability

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rating. An applicant rated as a five may reapply for employment after six months.

Plaintiffs Kathleen Wilkinson, Francesca Bannerman, and Rina Hirai applied for jobs at Matthew Bender. Hirai, a Boalt Hall graduate, took the written examination for employment as a legal writer. However, because she refused to sign a written acknowledgment that passing a urinalysis test was a condition of employment, the company deemed her application forfeited and her examination was never evaluated. Bannerman, a Hastings Law School graduate, was offered a position as a legal writer contingent upon passing a substance-abuse screening test; she refused to take the test and was not hired. Wilkinson was offered a job as copy editor trainee [215 Cal.App.3d 1039] contingent upon successful completion of a physical examination, including the drug and alcohol test; she took the eye exam but refused to take the drug test, and was not hired.

Plaintiffs filed a complaint against Times Mirror, Matthew Bender, and others, seeking declaratory and injunctive relief on their own behalf and for all others similarly situated, and damages for themselves. ¹ Among plaintiffs' allegations were that Matthew Bender's preemployment alcohol and drug-testing policy (1) violates article I, section 1 of the California Constitution; and (2) constitutes an unfair business practice, in violation of Business and Professions Code section 17200 et seq. ²

In June 1988, the trial court granted a preliminary injunction restraining Matthew Bender and Times Mirror from conditioning the employment of the named plaintiffs, or of any other member of the named class seeking employment with Matthew Bender in California upon submission to mandatory urinalysis testing for alcohol and drugs. After Matthew Bender and Times Mirror (defendants) filed a timely notice of appeal, this court granted their petition for writ of supersedeas, staying the effect of the preliminary injunction pending further order of this court and final determination of the appeal.

II

When the trial court decides whether to grant or deny a preliminary injunction, it must consider the likelihood that the plaintiffs will prevail on the merits at trial, and must also weigh the interim harm to plaintiffs if the injunction does not issue against the harm to defendants if the injunction is granted. (King v. Meese (1987) 43 Cal.3d 1217, 1227-1228, 240 Cal.Rptr. 829, 743 P.2d 889.) On appeal from an order granting or denying a preliminary injunction, the reviewing court does not ordinarily decide the merits of the complaint. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 75-76, 196 Cal.Rptr. 715, 672 P.2d 121.) Instead, that court decides [215 Cal.App.3d 1040] only whether the trial court abused its discretion in granting or denying the injunction, and the burden is on the party challenging the injunction to make a clear showing of abuse. (Id., at p. 69, 196 Cal.Rptr. 715, 672 P.2d 121.) But in an appropriate case, as when there are no factual issues requiring resolution at trial and when the issues have been extensively briefed, the merits of the action may be determined on appeal from the preliminary injunction order. (See King v. Meese, supra, 43 Cal.3d at p. 1228, 240 Cal.Rptr. 829, 743 P.2d 889.)

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With that preface, we turn to the allegations of plaintiffs' complaint. Plaintiffs alleged in part that Matthew Bender's preemployment drug-testing policy violated their right of privacy guaranteed by article I, section 1 of the California Constitution. Initially, defendants urge that article I, section 1, limits only government actors, not private parties. For several reasons, we disagree.

Since California voters amended article I, section 1, in 1972 to include the right of "privacy" among the people's inalienable rights, courts have recognized the ballot argument in support of the amendment as its only available legislative history. (See, e.g., White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222; People v. Privitera (1979) 23 Cal.3d 697, 709-710, 153 Cal.Rptr. 431, 591 P.2d 919.) The language of the ballot argument is consistent with the view that the right of privacy, whatever its scope, was intended to guarantee at least some protection against nongovernmental action.

The argument provided in pertinent part: "The proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms. Government agencies seem to be competing to compile the most extensive sets of dossiers of American citizens. Computerization of records makes it possible to create 'cradle-to-grave' profiles on every American. [p] At present there are no effective restraints on the information activities of government and business. This amendment creates a legal and enforceable right of privacy for every Californian." (Original emphasis.)

The argument continued, "The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose. It prevents government and business interests from collecting...