Cordle v. General Hugh Mercer Corp.

• Decision Date: 13 July 1984
• Docket Number: No. CC937,CC937
• Citation: 325 S.E.2d 111,174 W.Va. 321
• Court: West Virginia Supreme Court
• Parties: , 116 L.R.R.M. (BNA) 3447, 35 Empl. Prac. Dec. P 34,818, 101 Lab.Cas. P 55,481 Deborah J. CORDLE, Brenda G. Billings and Brenda L. Hall v. GENERAL HUGH MERCER CORP., A W.Va. Corp., D/B/A Holiday Inn of Princeton.

Page 111

325 S.E.2d 111

174 W.Va. 321, 116 L.R.R.M. (BNA) 3447,

35 Empl. Prac. Dec. P 34,818,

101 Lab.Cas. P 55,481

Deborah J. CORDLE, Brenda G. Billings and Brenda L. Hall v. GENERAL HUGH MERCER CORP., A W.Va. Corp., D/B/A Holiday Inn

of Princeton.

No. CC937.

Supreme Court of Appeals of

West Virginia.

July 13, 1984.

Dissenting Opinion July 23, 1984.

Dissenting Opinion July 26, 1984.

Rehearing Denied Dec. 21, 1984.

Syllabus by the Court

1. A determination of the existence of public policy in West Virginia is a question of law, rather than a question of fact for a jury.

2. In West Virginia, a legally protected interest in privacy is recognized. Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958).

3. It is contrary to the public policy of West Virginia for an employer to require or request that an employee submit to a polygraph test or similar test as a condition of employment, and although the rights of employees under that public policy are not absolute, in that under certain circumstances, such as those contemplated by W.Va.Code, 21-5-5b [1983], such a polygraph test or similar test may be permitted, the public policy against such testing is grounded upon the recognition in this State of an individual's interest in privacy.

John P. Anderson, Princeton, for plaintiff.

Michael F. Gibson, Princeton, for defendant.

McHUGH, Chief Justice:

This action is before this Court upon certified questions from the Circuit Court of Mercer County, West Virginia. The certified questions were docketed by this Court by order entered on December 8, 1983. This action involves the termination by a private corporation of the employment of certain "at will" employees because those employees refused to take a polygraph test. We are asked to review the question of whether such termination of employment violated the public policy of West Virginia. This Court has before it all matters of record and the briefs of counsel.

I

The defendant, General Hugh Mercer Corporation, a private corporation, operated a "Holiday Inn" in Princeton, Mercer County, West Virginia. The plaintiffs, Deborah J. Cordle, Brenda G. Billings and Brenda L. Hall, were hired by the defendant as cleaning maids between May, 1977 and May, 1978. The record indicates that the plaintiffs were "at will" employees of the defendant. ¹

On January 14, 1981, the plaintiffs signed agreements ² which provided that, when required by the defendant, the plaintiffs would take a polygraph test. ³ Subsequently, by memorandum dated June 3, 1982, the defendant notified the plaintiffs, and other employees, that polygraph testing would soon begin. ⁴ The plaintiffs, however, refused to take a polygraph test, and on October 12, 1982, their employment with the defendant was terminated. ⁵

The plaintiffs instituted an action in the Circuit Court of Mercer County against the defendant and asserted that their employment was wrongfully terminated. The defendant filed a motion to dismiss the plaintiffs' complaint.

As reflected in its final order, the circuit court, considering the defendant's motion and other matters of record, made the following findings of fact and conclusions of law:

1. That plaintiffs were employees terminable at will under the law of the State of West Virginia;

2. That plaintiffs were terminated from employment with defendant for reason of their refusal to take a polygraph examination;

3. That said defendant's termination of plaintiffs was wrongful in that it violated a substantial public policy principle;

4. That the matter of what constitutes a violation of substantial public policy of this State is a matter of law rather than a question [of] fact to be decided by a jury;

5. The Legislature of this State has now enacted legislation, codified in West Virginia Code, Chapter 21, Article 5, Section 5(b), et seq., which places substantial limitations on employers' use of polygraph testing on their employees. ⁶ The circuit court, treating the defendant's motion to dismiss as a motion for summary judgment, denied the motion and certified the following questions to this Court:

A. Whether under facts evidenced by the pleadings and affidavits in this case, defendant's termination of plaintiffs' employment for their failure to undergo a polygraph examination violates a substantial public policy of this State?

B. Whether the determination of the existence of a substantial public policy of this State is a question of fact for the jury or a question of law for the court?

II

Before addressing the question concerning polygraph testing, we note at the outset that certified question "B" requires little discussion. We affirm the ruling of the circuit court and hold that a determination of the existence of public policy in West Virginia is a question of law, rather than a question of fact for a jury. The parties did not contest the ruling of the circuit court upon that point. As stated in Allen v. Commercial Casualty Ins. Co., 131 N.J.L. 475, 37 A.2d 37 (1944):

Much has been written by text writers and by the courts as to the meaning of the phrase "public policy." All are agreed that its meaning is as "variable" as it is "vague," and that there is no absolute rule by which courts may determine what contracts contravene the public policy of the state. The rule of law, most generally stated, is that "public policy" is that principle of law which holds that "no person can lawfully do that which has a tendency to be injurious to the public or against public good * * * " even though "no actual injury" may have resulted therefrom in a particular case "to the public." It is a question of law which the court must decide in light of the particular circumstances of each case.

The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the people for whom government--with us--is factually established.

131 N.J.L. at 477-78, 37 A.2d at 38-39.

The answer to certified question "A," however, is more complex. The plaintiffs were at will employees of a private corporation, and, as the circuit court concluded, they were terminated from their employment because they refused to take a polygraph test. This Court must determine whether that termination violated the public policy of this State.

First, we conclude that "at will" employees need not be distinguished from other employees in terms of whether the termination of employment for refusal to take a polygraph test violates public policy. At will employees, as well as other employees, have certain protections in circumstances involving public policy. In Harless v. First National Bank in Fairmont, W.Va., 246 S.E.2d 270 (1978), the plaintiff, an at will employee at a bank, asserted that he was discharged from his employment for attempting to require his employer to comply with federal and state consumer credit and protection laws. This Court noted that the protection of consumers covered by consumer credit and protection laws is a matter of public policy in West Virginia and that such a policy should not be frustrated by denying to the plaintiff a remedy, under the facts alleged, against his employer relating to the discharge. This Court, in Harless, held in the syllabus as follows:

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.

See also Stanley v. Sewell Coal Co., W.Va., 285 S.E.2d 679 (1981); Shanholtz v. Monongahela Power Company, W.Va., 270 S.E.2d 178 (1980).

In Perks v. Firestone Tire & Rubber Company, 611 F.2d 1363 (3rd Cir.1979), the United States Court of Appeals for the Third Circuit held that the discharge of an at will employee because of a refusal to submit to a polygraph examination required by an employer gave rise to a cause of action for "tortious discharge" under Pennsylvania law. 611 F.2d at 1365. In the Perks opinion, the court cited a Pennsylvania statute which proscribed the use of polygraph examinations by employers. However, the court indicated that the statute embodied a "recognized facet of public policy" (611 F.2d at 1366) relating to the protection of areas of an employee's life in which an employer has no legitimate interest.

Moreover, the Supreme Court of New Jersey in State v. Community Distributors, Inc., 64 N.J. 479, 317 A.2d 697 (1974), affirmed the defendant's conviction for violating a New Jersey statute, which statute provided, inter alia, that employers could not "influence, request or require an employee to take or submit to a lie detector test...." The facts in that action indicated that polygraph examinations were given to certain employees of the defendant at the defendant's request. Unlike the action presently before this Court, which does not involve a statute relating to polygraph examinations (see n. 6, supra ), the court in State v. Community Distributors, Inc., was directly concerned with the applicability and constitutionality of anti-polygraph legislation in New Jersey. We note, however, the concern expressed by the New Jersey court concerning the existence of polygraph testing in the employer-employee context:

Nor is there any assurance of true voluntariness [in taking a polygraph examination] for the economic compulsions are generally such that the employee has no realistic choice. Organized labor groups have often expressed intense hostility to employer requirements that employees submit to polygraph tests which they view as improper invasions of their deeply felt rights to personal privacy and to remain free from involuntary...