Requiring employees to submit to directly observed reasonable suspicion testing and falsely reporting to third parties that the employees were tested because of reasonable suspicion may give rise to claims for invasion of privacy and defamation, according to two recent decisions by the U.S. District Court for the Western District of Louisiana.  Cook v. Warrior Energy Servs. Corp., 2017 U.S. Dist. LEXIS 55310 (W.D. La. Apr. 11, 2017) and Ron Bros. v. Warrior Energy Servs. Corp.2017 U.S. Dist. LEXIS 55312 (W.D. La. Apr. 11, 2017).

Plaintiffs in both cases are current and former employees of Warrior Energy Services Corporation, a company that provides labor and related services for oil and gas drilling projects.  Plaintiffs alleged that, in July 2015, Warrior Energy Services required that they submit to hair, urine and breath testing under direct observation as part of an “unannounced en masse” drug testing event which was not based on any individualized suspicion.  After receiving the results – which plaintiffs claim were negative – the Company reported both the test results (including an initial unconfirmed positive result, which subsequently was confirmed as negative) that plaintiffs were tested for “reasonable suspicion” to a number of external drug-testing databases that were accessible to defendant’s customers.  Plaintiffs, who dispute that Warrior Energy Services had reasonable suspicion to test, subsequently sued the Company, alleging, among other things, claims for invasion of privacy and defamation under Louisiana statute.  The Company moved to dismiss. 

The Court denied Warrior Energy Services’ motion to dismiss the defamation claim, finding that the “reasonable suspicion” reports were sufficiently defamatory to state a claim for defamation under Louisiana law.  The Company argued that reasonable suspicion determinations are “opinions” and thus cannot be defamatory, as Louisiana law requires that a defamatory statement be a false statement of fact.  The Court disagreed, holding that a reasonable suspicion determination “implies” that certain facts exist, and that such “implied factual assertions” – even when couched as opinions – can give rise to a defamation claim.  It should be noted that while Louisiana’s drug testing statute limits the circumstances in which a defamation claim can be asserted against an employer, these limitations did not apply to Warrior Energy Services, as the State’s drug testing statute exempts employers in the oil and gas industry. 

The Court also denied the Company’s motion to dismiss the invasion of privacy claim.  The Court held that Louisiana law recognizes a tort for invasion of privacy when a defendant “unreasonably intrudes upon the plaintiff’s physical solitude or seclusion,” and that plaintiffs’ allegation that some of them were tested under direct observation of their genitals and in a manner that could be viewed by other employees was sufficient to establish such unreasonable intrusion at the pleading stage.  In addition, the Court held that plaintiffs stated a claim for “false light” invasion of privacy under Louisiana law, which occurs when a defendant exposes a plaintiff to “publicity” which “unreasonably places the plaintiff in a false light before the public,” provided such publicity is false and “objectionable to a reasonable person under the circumstances.”  Here, the Court stated that plaintiffs adequately pleaded a “false light” invasion of privacy claim by alleging that Warrior Energy Services reported unconfirmed positive tests results and reported that the tests were conducted under reasonable suspicion when no such reasonable suspicion existed.

The Court’s decisions underscore the risks of unsupported reasonable suspicion determinations and reporting those determinations to third parties.