Luedtke v. Nabors Alaska Drilling, Inc., s. S-2074
| Decision Date | 17 February 1989 |
| Docket Number | S-2127,Nos. S-2074,s. S-2074 |
| Citation | 768 P.2d 1123 |
| Parties | , 57 USLW 2501, 116 Lab.Cas. P 56,337, 4 IER Cases 129 Clarence G. LUEDTKE, Appellant, v. NABORS ALASKA DRILLING, INC., Appellee. Paul M. LUEDTKE, Appellant, v. NABORS ALASKA DRILLING, INC., Appellee. |
| Court | Alaska Supreme Court |
Don Clocksin, Wagstaff, Pope & Clocksin, Cooperating Atty. for the Alaska Civil Liberties Union, Anchorage, and Douglas P. Elliott, Anchorage, for appellant Clarence G. Luedtke.
Charles W. Coe, Smith, Coe & Patterson, P.C., Anchorage, for appellant Paul M. Luedtke.
Mary Poteet, Winner & Associates, Anchorage, for appellee.
Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.
This case addresses one aspect of drug testing by employers. A private employer, Nabors Alaska Drilling, Inc. (Nabors), established a drug testing program for its employees. Two Nabors employees, Clarence Luedtke and Paul Luedtke, both of whom worked on drilling rigs on the North Slope, refused to submit to urinalysis screening for drug use as required by Nabors. As a result they were fired by Nabors. The Luedtkes challenge their discharge on the following grounds:
1. Nabors' drug testing program violates the Luedtkes' right to privacy guaranteed by article I, section 22 of the Alaska Constitution;
2. Nabors' demands violate the covenant of good faith and fair dealing implicit in all employment contracts;
3. Nabors' urinalysis requirement violates the public interest in personal privacy, giving the Luedtkes a cause of action for wrongful discharge; and
4. Nabors' actions give rise to a cause of action under the common law tort of invasion of privacy.
Nabors argues that the Luedtkes were "at will" employees whose employment relationship could be terminated at any time for any reason. Alternatively, even if termination had to be based on "just cause," such cause existed because the Luedtkes violated established company policy relating to employee safety by refusing to take the scheduled tests.
This case raises issues of first impression in Alaska law including: whether the constitutional right of privacy applies to private parties; some parameters of the tort of wrongful discharge; and the extent to which certain employee drug testing by private employers can be controlled by courts.
The Luedtkes' cases proceeded separately to judgment. Because they raised common legal issues, on Nabors' motion they were consolidated on appeal.
Paul began working for Nabors, which operates drilling rigs on Alaska's North Slope, in February 1978. He began as a temporary employee, replacing a permanent employee on vacation for two weeks. During his two weeks of temporary work, a permanent position opened up on the rig on which he was working and he was hired to fill it. Paul began as a "floorman" and was eventually promoted to "driller." A driller oversees the work of an entire drilling crew.
Paul started work with Nabors as a union member, initially being hired from the union hall. During his tenure, however, Nabors "broke" the union. Paul continued to work without a union contract. Paul had no written contract with Nabors at the time of his discharge.
During his employment with Nabors, Paul was accused twice of violating the company's drug and alcohol policies. Once he was suspended for 90 days for taking alcohol to the North Slope. The other incident involved a search of the rig on which Paul worked. Aided by dogs trained to sniff out marijuana, the searchers found traces of marijuana on Paul's suitcase. Paul was allowed to continue working on the rig only after assuring his supervisors he did not use marijuana.
In October 1982, Paul scheduled a two-week vacation. Because his normal work schedule was two weeks of work on the North Slope followed by a week off, a two-week vacation amounted to 28 consecutive days away from work. Just prior to his vacation, Paul was instructed to arrange for a physical examination in Anchorage. He arranged for it to take place on October 19, during his vacation. It was at this examination that Nabors first tested Paul's urine for signs of drug use. The purpose of the physical, as understood by Paul, was to enable him to work on offshore rigs should Nabors receive such contracts. Although Paul was told it would be a comprehensive physical he had no idea that a urinalysis screening test for drug use would be performed. He did voluntarily give a urine sample but assumed it would be tested only for "blood sugar, any kind of kidney failure [and] problems with bleeding." Nabors' policy of testing for drug use was not announced until November 1, 1982, almost two weeks after Paul's examination.
In early November 1982, Paul contacted Nabors regarding his flight to the North Slope to return to work. He was told at that time to report to the Nabors office in Anchorage. On November 5, Paul reported to the office where a Nabors representative informed him that he was suspended for "the use of alcohol or other illicit substances." No other information was forthcoming from Nabors until November 16 when Paul received a letter informing him that his urine had tested positive for cannabinoids. The letter informed him that he would be required to pass two subsequent urinalysis tests, one on November 30 and the other on December 30, before he would be allowed to return to work. In response Paul hand delivered a letter drafted by his attorney to the Manager of Employee Relations for Nabors, explaining why he felt the testing and suspension were unfair. Paul did not take the urinalysis test on November 30 as requested by Nabors. On December 14, Nabors sent Paul a letter informing him he was discharged for refusing to take the November 30 test.
Following his discharge, Paul applied for unemployment compensation benefits with the Alaska State Department of Labor (DOL). DOL initially denied Paul benefits for the period of December 12, 1982 through January 22, 1983 on the ground that his refusal to take the urinalysis test was misconduct under AS 23.20.379(a). Paul appealed that decision and on January 27, 1983, the DOL hearing officer concluded that the drug re-test requirement was unreasonable. On that basis, the hearing officer held that Paul's dismissal was not for misconduct. Nabors appealed to the Commissioner of Labor, who sustained the decision of the appeals tribunal.
Paul initiated this civil action in November 1983. He asserted claims for wrongful dismissal, breach of contract, invasion of privacy, and defamation. Nabors moved for and was granted summary judgment on the invasion of privacy claim, on both the constitutional and common law tort theories. Prior to trial Paul voluntarily dismissed his defamation claim. The trial court, in a non-jury trial, held for Nabors on Paul's wrongful dismissal and breach of contract claims.
Paul appeals the trial court's rulings with regard to his wrongful dismissal, breach of contract, and invasion of privacy claims.
Clarence has had seasonal employment with Nabors, working on drilling rigs, since the winter of 1977-78. Prior to beginning his first period of employment, he completed an employment application which provided for a probationary period.
In November 1982 Clarence became subject to the Nabors drug use and testing policy. In mid-November a list of persons scheduled for drug screenign was posted at Clarence's rig. His name was on the list. The people listed were required to complete the test during their next "R & R" period. 1 During that next "R & R" period Clarence decided he would not submit to the testing and informed Nabors of his decision.
Nabors offered to allow Clarence time to "clean up" but Clarence refused, insisting that he thought he could pass the test, but was refusing as "a matter of principle." At that point Nabors fired Clarence. The drug test that would have been performed on Clarence was the same as that performed on Paul.
Following his discharge Clarence also sought unemployment compensation benefits with the DOL. Nabors objected because it believed his refusal to submit to the drug test was misconduct under AS 23.20.379(a). After a factual hearing and two appeals, the Commissioner of Labor found that "Nabors has not shown that there is any connection between off-the-job drug use and on-the-job performance." Thus, there was no showing that Nabors' test policy was related to job misconduct. Furthermore, the Commissioner adopted factual findings that 1) no evidence had been submitted by Nabors linking off-duty drug use with on-the-job accidents, and 2) Nabors was not alleging any drug use by Clarence.
Clarence filed his complaint in this case in November 1984. He alleged invasion of privacy, both at common law and under the Alaska Constitution, wrongful termination, breach of contract, and violation of the implied covenant of good faith and fair dealing. The trial court granted summary judgment in favor of Nabors on all of Clarence's claims. No opinion, findings of fact or conclusions of law were entered.
Clarence appeals the award of summary judgment on all counts.
The right to privacy is a recent creation of American law. The inception of this right is generally credited to a law review article published in 1890 by Louis Brandeis and his law partner, Samuel Warren. Brandeis & Warren, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). Brandeis and Warren observed that in a modern world with increasing population density and advancing technology, the number and types of matters theretofore easily concealed from public purview were rapidly decreasing. They wrote:
Recent inventions and business methods call attention to the next step which must be taken for the protection...
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