Pubdate: Wed, 19 Nov 2003
Source: Charleston Gazette (WV)
Copyright: 2003 Charleston Gazette
Contact:  http://www.wvgazette.com/
Details: http://www.mapinc.org/media/77
Author: Chris Wetterich
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

PRE-EMPLOYMENT DRUG TESTS ARGUED

The state Supreme Court on Tuesday heard arguments on whether private
businesses can require newly hired employees to take a drug test before they
start work.

The case stems from the appeal of a lawsuit decision filed by Stephanie
Baughman, a former Wal-Mart employee in Grafton. Baughman was fired in June
2001 for reasons unrelated to the drug test.

Baughman began to search for legal claims against the company, and she
"learned for the first time that her privacy rights had been violated" by
the drug test, said her lawyer, Michael J. Florio. Harrison County Circuit
Court rejected the claim.

Florio asked the justices to create a prohibition against post-hire,
pre-employment drug tests for all employees.

He argued the court should extend its 1990 ruling barring random drug tests
for employees after they are hired, except in circumstances where the job
involves public safety or if the employee has grounds to suspect drug use by
an employee.

"There's no difference between the rights of a person with a job and those
without a job," Florio said. "It seems like a logical step to expand the
protection."

A Wal-Mart attorney said that would go too far. Niall Paul said certain
expectations of privacy are given up when applying for a job.

He compared post-hire, pre-employment drug testing to a sobriety checkpoint.
The court has said that the checkpoints are legal as long as there are
policies and standards for how they are to be conducted and motorists can
avoid the checkpoints.

Workers, he said, don't have to seek employment with Wal-Mart if they don't
want to be screened for illegal drugs.

The court heard several cases throughout the day, with Justice Warren McGraw
asking Paul at one point if his client was a member of the U.S. Chamber of
Commerce, a group McGraw said may be targeting him for defeat in the 2004
election.

"I need to know that in order to make a decision about whether or not I
should be disqualified to hear this case or just let you be contemptible,"
McGraw said.

McGraw said he might have to take himself out of cases involving the
chamber. The state Chamber of Commerce has criticized what it calls McGraw's
anti-business record.

Paul, left momentarily speechless by the question, said he wasn't sure if
Wal-Mart was a member of the chamber but would find out.

Pendleton sex-abuse lawsuit

Justices also heard arguments about whether a Pendleton County man can sue
school officials, alleging they knew a teacher had molested other children
and did not report it.

The case involves a federal lawsuit brought by Tony Dean Arbaugh Jr., who
said Circleville school teacher Ferlin Heavener sexually assaulted him while
he attended the school.

Heavener is serving up to 80 years at Mount Olive Correctional Center after
pleading guilty in 1999 to 20 counts of sexually assaulting his former
students and five counts of delivery of a controlled substance.

Arbaugh is suing the county school board, administration officials and some
teachers who he said knew about past abuse by Heavener before he preyed upon
Arbaugh. The federal judge asked the court to decide whether such a suit is
allowed under West Virginia law.

If the court decides in favor of Arbaugh, teachers, clergy, childcare
workers, social service workers, medical personnel, judges and police could
be sued under the new precedent.

Arbaugh's attorney, Larry Garrett, said school officials had ignored a
previous incident before Arbaugh attended the school when a janitor reported
seeing a naked boy running down the hallway of the school and later found
Heavener and two other boys in the school's hot tub.

Nancy Brown, an attorney representing the school board and its employees,
said they "hotly contest" knowing about prior sexual abuse. She also argued
the Legislature did not intend to create a new way to sue when it passed the
sexual abuse notification law.

Some justices said they were concerned about opening up the courts to a
potential flood of litigation against teachers and other public safety
officials.
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