Semore v. Pool, No. E006138

CourtCalifornia Court of Appeals
Writing for the CourtHOLLENHORST; DABNEY; McDANIEL
Citation217 Cal.App.3d 1087,266 Cal.Rptr. 280
Parties, 115 Lab.Cas. P 56,232, 5 IER Cases 129, 5 IER Cases 672 James SEMORE et al., Plaintiffs and Appellants, v. Eric POOL et al., Defendants and Respondents.
Decision Date02 February 1990
Docket NumberNo. E006138

Page 280

266 Cal.Rptr. 280
217 Cal.App.3d 1087, 115 Lab.Cas. P 56,232, 5 IER Cases 129,
5 IER Cases 672
James SEMORE et al., Plaintiffs and Appellants,
v.
Eric POOL et al., Defendants and Respondents.
No. E006138.
Court of Appeal, Fourth District, Division 2, California.
Feb. 2, 1990.
Review Denied May 31, 1990.

Page 282

[217 Cal.App.3d 1091] L.M. Schulner, A Law Corp., and Timothy S. Camarena, Camarillo, for plaintiffs and appellants.

Paul, Hastings, Janofsky & Walker, Robert F. Walker, Santa Monica, and Joseph L. Beachboard, Los Angeles, for defendants and respondents.

217 Cal.App.3d 1092

OPINION

HOLLENHORST, Acting Presiding Justice.

In this case, we find that the right of privacy in the California Constitution protects Californians from actions of private employers as well as government agencies.

Accordingly, when a private employee is terminated for refusing to take a random drug test, he may invoke the public policy exception to the at-will termination doctrine to assert a violation of his constitutional right of privacy.

We therefore find that the trial court erred in granting a demurrer without leave to amend to causes of action for wrongful termination in violation of public policy and for breach of an implied-in-fact promise to discharge for good cause only.

THE COMPLAINT 1

The first amended complaint alleges that plaintiff James Semore was employed by defendant Kerr-McGee Chemical Corporation on May 26, 1977, at its chemical plant in Trona, California. 2 He was terminated on September 13, 1986, because he refused to consent to a pupillary reaction eye test. The purpose of the test was to determine if plaintiff was under the influence of drugs. All employees were given the test and, upon plaintiff's refusal to take the test, he was terminated for insubordination.

Ten causes of action are alleged, including wrongful termination and breach of express and implied contractual provisions. Fraud and misrepresentation causes of action are based upon statements in an employee handbook. Intentional and negligent emotional distress and loss of consortium allegations are also included.

Plaintiff's wrongful termination allegations are based on his contention that his right of privacy under the California Constitution prohibits his employer from conducting arbitrary drug testing and that his termination therefore violated the public policy of the State.

217 Cal.App.3d 1093

THE DEMURRER

The demurrer alleged that, as a matter of law, an employee has no constitutionally protected right to refuse to undergo a nonintrusive and simple eye reaction test requested by his employer. The demurrer alleges that all of the causes of action rest on this issue and, as a result, the entire complaint should be dismissed.

Page 283

THE TRIAL COURT'S RULING

The trial court agreed with defendants and made findings "that defendants had a compelling interest that their employees be free of the influence of drugs at the time of their actual working hours. The court further finds that a pupillary eye test is a nonintrusive preliminary test that indicates the possible influence of drugs. The court further finds that plaintiffs should have had an expectation of such reasonable examination to determine their fitness for work." The court then sustained the demurrer to all causes of action without leave to amend. This appeal followed. 3

ISSUES PRESENTED

Defendants contend that the trial court's ruling was "perfectly" decided. First, they contend that the right of privacy is only a protection against governmental intrusion and their demurrer was properly sustained in the absence of any allegations of state action. Second, they contend that plaintiff cannot state a cause of action because the public policy exception to the at-will doctrine does not apply. Third, they contend that no privacy right is invaded but that, even if a privacy right is involved, the employer's need to assure safe and efficient operation of its plant outweighs the employee's legitimate expectations of privacy. Fourth, they contend that all causes of action are barred or, if not barred, are individually defective.

We consider each of these contentions in turn.

THE CONSTITUTIONAL RIGHT TO PRIVACY APPLIES TO PRIVATE EMPLOYERS

Article I, section 1, of the California Constitution provides that privacy is one of our inalienable rights. Since privacy can be invaded by government agencies, businesses, or individuals, the courts and commentators[217 Cal.App.3d 1094] agree that the constitutional provision provides at least some protection against nongovernmental action. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 134 Cal.Rptr. 839; White v. Davis (1975) 13 Cal.3d 757, 773-776, 120 Cal.Rptr. 94, 533 P.2d 222.)

We do not need to review the authorities in detail because the recent case of Wilkinson v. Times Mirror Corporation (1989) 215 Cal.App.3d 1034, 264 Cal.Rptr. 194, has done the job for us. In that case, the First District reviewed the question of whether a preemployment urinalysis requirement violated an applicant's privacy rights. Among other issues, the court considered whether the constitutional provision applies to private employers, and found that it does. We agree with the case analysis in that opinion, which concludes: "the courts were unanimous in holding that the state constitutional privacy provision provides some protection against nongovernmental intrusion. Defendants cite no case in which a court has held to the contrary." (Id., at p. 1043, 264 Cal.Rptr. 194.)

Defendants rely on Schmidt v. Superior Court (1989) 48 Cal.3d 370, 256 Cal.Rptr. 750, 769 P.2d 932 which they contend "either effectively holds that the privacy right protects only against governmental intrusion ... or at a minimum holds that the state action issue is open for resolution." In Schmidt, our Supreme Court considered the validity of a rule adopted by the owner of a private mobilehome park. The rule limited residence in the park to persons 25 years of age or older. The court held that the California statutes permit such a rule, and the statutes and the rule are constitutional. (Id., at p. 373, 256 Cal.Rptr. 750, 769 P.2d 932.) Among other arguments, plaintiff claimed the rule was invalid because it interfered with their right of familial privacy. The court pointed out that the rule was not state imposed, but rather that the statute specifically left the decision to the owner of the mobilehome park. (Id., at p. 388, 256 Cal.Rptr. 750, 769 P.2d 932.) The court then stated that the constitutional challenge would fail even if state action

Page 284

was involved. In a footnote, the court said: "[W]e have no occasion in this case to consider under what circumstances, if any, purely private action by a property owner or landlord would constitute a violation of the state constitutional privacy provision." (Id., at p. 389, fn. 14, 256 Cal.Rptr. 750, 769 P.2d 932.) Defendants rely on this footnote to contend that the decision is dispositive of this appeal and that it is an "effective holding" that private conduct is not within the statute. We disagree. The footnote clearly states that the issue is not being decided, and remains an open question in our Supreme Court.

While the concept of privacy covers a broad range of human activity, we have no doubt that at least some types of nongovernmental conduct can interfere with the right granted by the constitutional provision. We therefore reject defendants' contention that an allegation of state action was required to overcome the demurrer.

217 Cal.App.3d 1095

PLAINTIFF CAN POSSIBLY ALLEGE A CAUSE OF ACTION

Defendants next contend that plaintiff cannot allege a cause of action for wrongful termination because the public policy exception to the at-will doctrine does not apply.

Labor Code section 2922 provides that an employment relationship of an unspecified duration may be terminated at the will of either party. This section establishes a presumption of at-will employment that may be overcome by evidence of express or implied contractual limitations on the right of discharge or limitations imposed by public policy. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665, 254 Cal.Rptr. 211, 765 P.2d 373; Pugh v. See's Candies, Inc. (1981) 116 Cal.App.3d 311, 171 Cal.Rptr. 917; Wrongful Employment Termination Practice (Cont.Ed.Bar 1987) §§ 2.32-2.39, pp. 39-48.) Although plaintiff alleges contract causes of action, discussed below, his first cause of action for wrongful termination attempts to plead this public policy exception to the employer's right to terminate an at-will employee. The allegations assume that he was such an employee.

"[T]he employer's right to discharge an 'at will' employee is still subject to limits imposed by public policy, since otherwise the threat of discharge could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action harmful to the public weal." (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 665, 254 Cal.Rptr. 211, 765 P.2d 373.)

In Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184, 344 P.2d 25, an at-will employee was discharged for his refusal to commit perjury. The court said: "It would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge any employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute." (Id., at pp. 188-189, 344 P.2d 25.) These public policy considerations prevented the employer from discharging the employee for his refusal to commit perjury.

Foley also cites with approval Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330. In that case, plaintiff alleged that he was discharged for refusing to engage in price fixing in violation of the antitrust laws....

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57 practice notes
  • Grinzi v. San Diego Hospice Corp., No. D042431.
    • United States
    • California Court of Appeals
    • 30 Junio 2004
    ...of public policy" sufficient to state a cause of action for wrongful termination against a private employer. (Semore v. Pool (1990) 217 Cal.App.3d 1087, 1098, 266 Cal.Rptr. 280.) California's prohibition against sex discrimination7 is also distinguishable as it applies to private as well as......
  • Pettus v. Cole, Nos. A060253
    • United States
    • California Court of Appeals
    • 12 Septiembre 1996
    ...rights. The claims that have arisen in this context have typically involved employer-mandated drug testing. (Semore v. Pool (1990) 217 Cal.App.3d 1087, 266 Cal.Rptr. 280 (Semore ); Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d 1, 267 Cal.Rptr. 618 (Luck ); Wilkinson v. ......
  • Williams v. Wraxall, No. A061964
    • United States
    • California Court of Appeals
    • 16 Marzo 1995
    ...of the falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damages. (Semore v. Pool (1990) 217 Cal.App.3d 1087, 1102, 266 Cal.Rptr. 280; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 414-415, 196 Cal.Rptr. "[T]he elements of an action for ......
  • Luck v. Southern Pacific Transportation Co., Nos. A040995
    • United States
    • California Court of Appeals
    • 21 Febrero 1990
    ...v. University of San Francisco, supra, 64 Cal.App.3d at p. 829, 134 Cal.Rptr. 839 [private university]; see Semore v. Pool (1990), 217 Cal.App.3d 1087, 1093-1095, 266 Cal.Rptr. 280 [private employer; allegation of state action not required to overcome demurrer to cause of action based on co......
  • Request a trial to view additional results
57 cases
  • Grinzi v. San Diego Hospice Corp., No. D042431.
    • United States
    • California Court of Appeals
    • 30 Junio 2004
    ...of public policy" sufficient to state a cause of action for wrongful termination against a private employer. (Semore v. Pool (1990) 217 Cal.App.3d 1087, 1098, 266 Cal.Rptr. 280.) California's prohibition against sex discrimination7 is also distinguishable as it applies to private as well as......
  • Pettus v. Cole, Nos. A060253
    • United States
    • California Court of Appeals
    • 12 Septiembre 1996
    ...rights. The claims that have arisen in this context have typically involved employer-mandated drug testing. (Semore v. Pool (1990) 217 Cal.App.3d 1087, 266 Cal.Rptr. 280 (Semore ); Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d 1, 267 Cal.Rptr. 618 (Luck ); Wilkinson v. ......
  • Williams v. Wraxall, No. A061964
    • United States
    • California Court of Appeals
    • 16 Marzo 1995
    ...of the falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damages. (Semore v. Pool (1990) 217 Cal.App.3d 1087, 1102, 266 Cal.Rptr. 280; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 414-415, 196 Cal.Rptr. "[T]he elements of an action for ......
  • Luck v. Southern Pacific Transportation Co., Nos. A040995
    • United States
    • California Court of Appeals
    • 21 Febrero 1990
    ...v. University of San Francisco, supra, 64 Cal.App.3d at p. 829, 134 Cal.Rptr. 839 [private university]; see Semore v. Pool (1990), 217 Cal.App.3d 1087, 1093-1095, 266 Cal.Rptr. 280 [private employer; allegation of state action not required to overcome demurrer to cause of action based on co......
  • Request a trial to view additional results

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