Hennessey v. Coastal Eagle Point Oil Co.

• Decision Date: 20 July 1992
• Citation: 129 N.J. 81,609 A.2d 11
• Court: New Jersey Supreme Court
• Parties: , 122 Lab.Cas. P 57,033, 7 IER Cases 1057 James HENNESSEY, Plaintiff-Appellant, v. COASTAL EAGLE POINT OIL COMPANY, Defendant-Respondent.

Page 81

129 N.J. 81

609 A.2d 11, 122 Lab.Cas. P 57,033,

7 IER Cases 1057

James HENNESSEY, Plaintiff-Appellant, v. COASTAL EAGLE POINT OIL COMPANY, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 22, 1992.

Decided July 20, 1992.

James Katz, Haddonfield, for plaintiff-appellant (Tomar, Simonoff, Adourian & O'Brien, attorneys).

Lawrence S. Coburn, Philadelphia, Pa., a member of the Pennsylvania bar, for defendant-respondent (Green, Lundgren & Ryan, attorneys; Peter P. Green, Haddonfield, on the brief).

Eric Neisser, Newark, for amicus curiae American Civ. Liberties Union.

Susan Remis Silver, Asst. Deputy Public Advocate, for amicus curiae Dept. of the Public Advocate (Wilfredo Caraballo, Public Advocate, attorney).

Paul I. Weiner, Roseland, for amicus curiae Employment Law Council (Timins & Weiner, attorneys).

Peter T. Manzo, Edison, submitted a letter in lieu of brief on behalf of amici curiae Washington Legal Foundation and Parents' Ass'n to Neutralize Drug and Alcohol Abuse.

Christopher H. Mills, Somerset, and Douglas S. McDowell, Washington, D.C., a member of the District of Columbia bar, submitted a brief on behalf of amicus curiae Equal Employment Advisory Council.

The opinion of the Court was delivered by

CLIFFORD, J.

This appeal questions whether a private employer's discharge of an employee who had failed a mandatory random drug test violated a clear mandate of public policy, and thus was compensable as a wrongful discharge. See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980). The trial court found a clear mandate of public policy against private random drug testing in the search-and-seizure provision of New Jersey's Constitution, and therefore granted plaintiff's motion for summary judgment. The Appellate Division reversed, 247 N.J.Super. 297, 589 A.2d 170 (1991). We granted certification, 126 N.J. 340, 598 A.2d 897 (1991), and now affirm.

I

Plaintiff, James Hennessey, was an at-will employee of defendant, Coastal Eagle Point Oil Company (Coastal Eagle), in Westville, New Jersey, working in an oil refinery as a lead pumper. He supervised the "gaugers," whose duties include blending gasoline with additives and managing the flow of gasoline products through the refinery. A gauger functions only under the direction of the lead pumper, who must translate orders and instructions into gauge levels for the gaugers. The lead pumper's job requires an ability to make precise calculations, to interpret orders and convey them to the gaugers, and to keep accurate records for the next shift's lead pumper.

The refinery functions twenty-four hours a day, seven days a week, on three shifts: 7:00 a.m. to 3:00 p.m., 3:00 p.m. to 11:00 p.m., and 11:00 p.m. to 7:00 a.m. As is true of many of the refinery's employees, Hennessey worked all three shifts on a rotating schedule. Michael J. Hoey, Coastal Eagle's manager of employee relations, described the position as a "very responsible" one. Irving Turner, Hennessey's immediate supervisor, evaluated plaintiff's work as "above average," noting that his job "always got done well."

Coastal Eagle acquired the refinery from Texaco (which had no written employee-drug-testing policy) in 1985. After the takeover, Coastal Eagle conducted physical examinations, including drug tests, on all its employees. (It regarded those examinations as pre-employment physicals.) Over nineteen percent of the employees tested positive for drug use. (Hennessey tested negative for the presence of drugs in that examination.) On June 21, 1985, Coastal Eagle issued a written policy and accompanying memorandum in which the company prohibited the on-premises use of alcohol, drugs, or controlled substances; required employees to notify their supervisors of their use of any drug or medication that was "known or advertised as possibly affecting or impairing" judgment or job performance; and warned employees that they might "at any time be required to give a urine or blood sample in order to determine compliance with the policy," and that noncompliance with the policy might result in termination. Coastal Eagle also announced a policy under which it would encourage and help employees who voluntarily disclosed drug problems to seek rehabilitation.

In January 1986, after discovering evidence of on-site marijuana use, the company decided to conduct random urine testing that spring (without notifying the employees that the tests would be conducted or describing the methodology that would be used in testing). Coastal Eagle included several features in the testing program to ensure minimum intrusion and maximum accuracy: the company chose urinalysis rather than blood-testing after concluding that the former method was less intrusive; an observer monitored the employee while giving the sample to avoid submission of counterfeit samples; steps were taken to ensure that the testing was truly random; the urine samples were tested only for drugs and not for any other physiological characteristics; and the most accurate testing methodology was used, with positive results being confirmed by a different test. At the same time the company also rescinded its informal policy of allowing employees who had tested positive to avoid termination by entering a rehabilitation program. The company notified supervisors of the change through a directive that was not distributed to non-management employees. The refinery's management expected that employees would receive notice of the change through the chain of command.

Hennessey, a non-management employee, was randomly chosen on June 9, 1986, for testing, and his urine yielded a positive result for marijuana and diazepam, which is the active ingredient in the tranquilizer Valium. Plaintiff neither challenges the accuracy of the test result nor contends that he was taking the diazepam for medical reasons. Coastal Eagle dismissed Hennessey, who thereafter brought this suit. His complaint included six counts: (1) wrongful discharge in violation of public policy, as provided by Pierce, supra, 84 N.J. 58, 417 A.2d 505; (2) common-law invasion of privacy; (3) violation of New Jersey's constitutional right of privacy as provided by article I, paragraphs 1 ("natural and unalienable rights") and 7 (search and seizure); (4) violation of New Jersey's Law Against Discrimination, N.J.S.A. 10:5-1 to -42; (5) breach of contract; and (6) negligent or intentional infliction of emotional distress. The parties stipulated to dismissal of Count Four.

On cross-motions for summary judgment the Law Division granted plaintiff's motion, based on his wrongful-discharge claim. The trial court found a public policy applicable to private employers in Fraternal Order of Police v. City of Newark, 216 N.J.Super. 461, 474, 524 A.2d 430 (App.Div.1987), in which the court had held that the City of Newark may conduct drug testing of police officers only with reasonable individualized suspicion of drug use. As had the Appellate Division in Fraternal Order of Police, the trial court here based its opinion entirely on article I, paragraph 7 of the New Jersey Constitution--the Search and Seizure Clause. The court found that Fraternal Order of Police and Allen v. Passaic County, 219 N.J.Super. 352, 530 A.2d 371 (Law Div.1986) (requiring reasonable suspicion for drug-testing of sheriff's-office personnel), provided "clear expressions of New Jersey public policy regarding drug screening." The court dismissed the remaining counts.

In reversing, the Appellate Division held that because "[p]rivate action does not violate constitutional prohibitions against unreasonable searches," 247 N.J.Super. at 305, 589 A.2d 170, random drug testing by private employers does not violate a clear mandate of public policy and therefore cannot form the basis of a wrongful-discharge claim. Explaining that privacy is "too amorphous" a standard to form the basis for a clear mandate of public policy, id. at 308, 589 A.2d 170, the court remanded to the trial court for determination of the remaining counts of Hennessey's complaint.

We affirm the Appellate Division's judgment and hold that Coastal Eagle's firing of Hennessey, an at-will employee in a safety-sensitive position, as a result of his failing a random urine test did not violate a clear mandate of public policy.

II

The traditional common-law rule was that an employer could fire an at-will employee "for good cause, for no cause, or even for cause morally wrong * * *." Payne v. Western & Atl. R.R. Co., 81 Tenn. 507, 519-20 (1884), overruled on other grounds, Hutton v. Watters, 132 Tenn. 527, 179 S.W. 134 (1915), quoted in Lawrence E. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404, 1405 & n. 10 (1967). However, starting in 1959, courts across the country began to hold that firing an employee for "bad cause" might be actionable. See Petermann v. International Bhd. of Teamsters, Local 396, 174 Cal.App.2d 184, 344 P.2d 25, 27 (1959) (finding public-policy exception to at-will-employment rule when employee had been fired for refusing to commit perjury).

This Court first recognized a cause of action for wrongful discharge in 1980. See Pierce, supra, 84 N.J. 58, 417 A.2d 505. The defendant in Pierce, Ortho Pharmaceutical Corp., had employed the plaintiff, Dr. Grace Pierce, as an at-will employee in a high-level research position. She was the only medical doctor working on a project to develop loperamide, an anti-diarrhea drug. As part of the testing and research procedure, Ortho decided to file an investigational-new-drug application (IND) with the Federal Food and Drug Administration (FDA). Dr. Pierce, who disapproved of the research because in Ortho's proposed formulation loperamide would contain saccharin, wrote a memorandum in which she declared her opposition to continuing with the research; she believed that even seeking FDA permission to proceed was unjustified....