Hennessey v. Coastal Eagle Point Oil Co.

proposed testimony, witness’s court proper procedure, followed having request neutralizing instruction). defendant made no

-C- Because defendant failed raise the issue in either his brief Appellate petition to the Division or his for certification to this Court, question do posed supplemental we not reach the in a petition granted, brief filed after namely, had been whether sponte should have sua the trial court conferred use immunity Larry. Although on directly question, we do not rule on the we unlikely think it most adopt principle we would Islands, Virgin supra, 615 F. 2d at 969-74.

IY Judgment affirmed. For Justice WILENTZ and Justices affirmance —Chief

CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN—7.

For reversal —None. HENNESSEY, PLAINTIFF-APPELLANT,

JAMES COMPANY, v. COASTAL EAGLE POINT OIL

DEFENDANT-RESPONDENT.

Argued January July 1992—Decided 1992. {Tomar, argued appellant for Simo- Katz the cause

James O’Brien, attorneys). noff, Adourian & bar, Cobum, Pennsylvania a member Lawrence S. {Green, Ryan, respondent Lundgren & argued the cause for brief). Green, attorneys; on the Peter P. American for curiae argued the cause amicus

Eric Neisser Union. Civil Liberties Advocate, Silver, ar- Deputy Assistant Public Remis

Susan Department of the Public gued for curiae the cause amicus Caraballo, Advocate, attorney). Public Advocate {Wilfredo Employ- curiae argued the cause amicus Paul I. Weiner Weiner, attorneys). ment Law Council & {Timins on a letter in lieu of brief behalf T. Manzo submitted Peter Legal and Parents’ Asso- Washington Foundation amici curiae Drug and Alcohol Abuse. ciation to Neutralize McDowell, a member of Christopher Douglas S. H. Mills bar, on a brief behalf the District of Columbia submitted Advisory Council. Equal Employment amicus curiae opinion of the Court was delivered The CLIFFORD, J. discharge private employer’s appeal questions whether a

This drug test mandatory random employee of an who had failed a public policy, violated clear mandate of compen and thus was wrongful discharge. sable as a See Pierce v. Ortho Pharma Corp., (1980). ceutical 84 N.J. 417 2d 505 A. The trial court found a against clear mandate of policy private random drug testing in provision the search-and-seizure of New Jer Constitution, sey’s granted plaintiff’s therefore motion for summary judgment. reversed, The Appellate Division N.J.Super. 297, (1991). granted certification, We (1991), 2dA. 897 and now affirm.

I Plaintiff, Hennessey, James employee was an at-will of defen- dant, Eagle (Coastal Coastal Point Company Oil Eagle), in Westville, Jersey, working New in an oil refinery as a lead pumper. supervised He “gaugers,” whose duties include blending gasoline with managing additives and the flow of gasoline products through refinery. gauger A functions only under the direction of pumper, the lead who must translate orders gauge and instructions into gaugers. levels for the The pumper’s lead job requires an ability precise to make calcula- tions, interpret convey orders and gaugers, them to the keep accurate records for the pumper. next shift’s lead refinery twenty-four functions day, days hours a seven week, on p.m., three shifts: 7:00 a.m. p.m. to 3:00 3:00 to 11:00 p.m., p.m. and 11:00 to 7:00 many a.m. As is true of refinery’s employees, Hennessey worked all three shifts on a rotating schedule. Michael Hoey, Eagle’s J. Coastal manager relations, position described the “very respon- as a Turner, Irving sible” one. Hennessey’s supervisor, immediate plaintiff’s evaluated average,” work as noting “above that his job “always got done well.” Eagle acquired (which

Coastal refinery from Texaco had no written employee-drug-testing policy) in 1985. After the takeover, Eagle examinations, physical Coastal conducted in- cluding tests, (It drug employees. on all its regarded those per- pre-employment physicals.) Over nineteen

examinations as drug (Hennessey positive for use. employees cent of the tested examination.) negative presence drugs in that tested for the Eagle policy a written and June Coastal issued On company prohibited accompanying the memorandum which substances; alcohol, on-premises drugs, use of or controlled the required employees notify supervisors their their use drug or advertised as any or medication that was “known job performance; possibly affecting impairing” judgment or employees they might any that “at time be re- and warned quired give sample a urine or blood order to determine noncompliance compliance policy,” the and that with the with Eagle policy might result in termination. Coastal also an- encourage help and policy nounced a under which it would drug problems employees voluntarily disclosed to seek who rehabilitation. discovering January

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

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

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

In Division prohibitions against does not violate constitutional vate action searches,” N.J.Super. 589 A. 2d unreasonable drug testing by private employers does not random violate public policy and therefore cannot form clear mandate wrongful-discharge Explaining of a claim. basis a clear amorphous” “too a standard to form the basis for court public policy, mandate of id. at 589 A.2d remaining to the trial court for determination of the remanded Hennessey’s complaint. counts of Appellate judgment affirm the Division’s and hold that We Eagle’s firing Hennessey, employee in a Coastal an at-will safety-sensitive position, failing as a result of his a random public policy. urine test did not violate a clear mandate of II employer The traditional common-law rule was that an could good cause, cause, employee fire an at-will “for for no or even * * morally wrong Payne for cause v. Atl. Western & Co., 507, (1884), R.R. 81 Tenn. 519-20 overruled on other Watters, 527, grounds, Hutton Tenn. S. W. (1915), Blades, quoted Employment E. in Lawrence at Will vs. Limiting Individual the Abusive Freedom: On Exercise of Power, 1404, (1967). Employer 67 Colum.L.Rev. 1405 & n. 10 However, starting 1959, country began in courts across the to firing employee might hold that an for “bad cause” be action- Teamsters, able. See Petermann v. International Bhd. of (1959) Cal.App.2d (finding Local 344 P.2d public-policyexception at-will-employment employ- to rule when refusing penury). ee had been fired for to commit recognized wrongful This Court first cause of action for discharge Pierce, supra, in 1980. 417 A. 2d 505. See N.J. Pierce, Corp., defendant Ortho Pharmaceutical had Pierce, employed plaintiff, employee Dr. as an Grace at-will high-level position. in a research She was the medical working project develop loperamide, doctor on a to an anti- drug. part testing procedure, diarrhea As of the and research investigational-new-drug application Ortho decided to file an (IND) (FDA). Drug with the Federal Food and Administration Pierce, disapproved of Dr. who the research because Ortho’s saccharin, loperamide proposed formulation would contain opposition wrote a memorandum in which she declared her to research; continuing seeking she that with believed even permission proceed unjustified. expressed FDA to was She opposition supervisor, to her immediate who removed her loperamide project from the and asked her to choose other projects. demotion,

Viewing resigned the transfer as a Dr. Pierce Ortho, claiming refusing sued she had been terminated for support interpretation an action that violated her (She allege Hippocratic oath. did not that continued law.) granted would violate State or federal The trial court Ortho, summary judgement reasoning employer for that an may employee any Appellate fire an at-will reason. The (1979). N.J.Super. Division reversed. 166 399 A.2d 1023 reversed, doing scope This Court but so narrowed the of an employer’s authority employee: to fire an at-will we held that employee wrongful discharge “an has a cause of action for discharge is contrary when to a clear mandate of Pierce, policy.” (emphasis added). The Court continued: discharge

An an carries a at will correlative duty employer’s employee discharge who declines to an act that would perform require a violation a clear mandate of unless an at However, public policy. discharged will identifies a he be with may specific expression public policy, or without cause.

[Ibid.] rule, applying In its the Court found no violation of a new 73-76, public policy. clear mandate of Id. at 417 A.2d 505. The public policy source on which Dr. Pierce had relied was loperamide Hippocratic oath. Clinical was imminent; indeed, contingent approval it was on the FDA’s allege Pierce that Ortho would IND. Nor did Dr. of Ortho’s sum, approval. In one doctor proceeded without FDA have according the dictates of her conscience was not acting public policy.” a “clear mandate of Id. sufficient to constitute law, 75, public a matter of there is no at 417 A. 2d 505. “As conducting drugs may con policy against research on be mankind, troversial, particularly potentially beneficial to but approval by the subject of the research is where continuation 76, FDA.” at 417 A.2d 505. Id.

Ill A Pierce, In public policy The sources of are varied. we stated: legislation; regula- include administrative rules, The sources public policy judicial In certain instances, tions or decisions. decisions; professional However, code of ethics contain an not all may expression public policy. * * * legisla- a clear mandate of Absent such sources express public policy. judiciary determina- must define the cause of action tion, case-by-case

tions. N.J. 2d 72, A. [84 505.] wrongful-discharge This state’s courts have found a clearly-articulated cause of action to exist when based on See, Co., public policy. e.g., Colgate-Palmolive v. Velantzas 1, (1988) (plaintiff 192-93 & n. 536 A.2d 237 had N.J. requested employment gender records to establish access to claim; public poli discrimination Court found clear mandate of law); cy Lally Copygraphics, in federal case 85 N.J. (1981)(plaintiff Compen filed had Worker’s claim; public policy sation found clear mandate of de Court Bank, statute); Village N.J.Super. from Potter v. rived (plaintiff bank-president (App.Div.) 543 A. 2d 80 had reported Banking suspected money-laundering Commission directors; policy court derived clear mandate of bank statute), denied, (1988); from A.2d certif. Leeds, Inc., N.J.Super. Cerracchio v. Alden

91 complaint (App.Div.1988) (plaintiff had filed with 2d 1292 A. “legisla OSHA; public policy court found clear mandate Co., N.J.Super. 153, Kalman v. Grand Union 183 157- tion”); 59, had re (App.Div.1982) (plaintiff-pharmacist 443 A.2d 728 4; July on court derived clear mandate pharmacy fused to close law, regulations, administrative public policy from case Co., Mfg. Lepore v. National Tool ethics); 224 code of cf. N.J.Super. (extend 463, 473-74, (App.Div.1988) 1296 540 A.2d ing employees employees to covered protection of at-will fired for collective-bargaining agreements; employee had been aff'd, N.J. 226, OSHA), 115 557 safety reporting violations denied, 110 S.Ct. 366, cert. U.S. 107 A.2d L.Ed.2d (1989). clearly- plaintiff does not show a violation of

When the however, wrongful-discharge right, there is no established recovery employ Our courts have denied cause of action. firing following his conscience ee claimed that his who public policy. See House v. Carter- a clear mandate of violated Inc., Wallace, N.J.Super. 42, 51, (App.Div.) of con opposition internal to distribution (plaintiff had voiced might polish; suggested court that outcome taminated tooth governmental, plaintiff complained to have been different had denied, 117 N.J. outside, authority), or other certif. Libertelli, see also State Bank v. Citizens (1989); 2d A. 874 N.J.Super. (“Termination (App.Div.1987) 521 A.2d improprieties is not protesting officer for directors’ of a bank arising regulatory scheme which by public policy from a barred effective other and contains specifically permits termination improprieties.”). dealing those means of with suing the firing employee in retaliation for of an Nor was dispute a clear salary deemed violate employer to resolve Jewelers, Finlay Kay Alexander policy. mandate of denied, 104 Inc., N.J.Super. 506 A.2d certif. (1986). Appellate Division noted There 517 A. 2d regulation prohibiting such a any statute or the absence of firing. employer-employee dispute The was found to be entire ly private. 508, Id. at 506 A. 2d 379. Leasametric, Inc.,

In 21, 30, Schwartz v. 224 N.J.Super. 539 (1988), A.2d 744 Appellate firing Division held that paying to avoid commissions does not violate a clear public mandate of policy. The court characterized as Pierce requiring employee’s “retaliation for an refusal to commit an act which would violate a statute or for assertion of a protected by legislation, firings or for which ‘invidiously were ” Ibid, discriminatory.’ (quoting Citizens State Bank v. Liber telli, 195, N.J.Super. 867). 215 521 A.2d

B Eagle Coastal and amici claim that an action lie only will when an employee is fired retaliation for exercising rights by statute, set forth regulation, judicial or They decision. support Pierce, their quoting 72, claim supra, 84 N.J. at 417 A. 2d 505: “The public sources of policy legislation; include rules, regulations decisions; administrative judicial and deci Therefore, contend, sions.” they no clear public mandate of policy can derive from a disagree. constitution. We wrongful-discharge cause of action that developed we in Pierce is broader than reported defendant contends. No opinion from this state’s courts has specifically rejected either the state or federal public constitution as a source of policy. Eagle Coastal and amici seek too interpretation constricted an In Pierce. that case didwe not restrict the cause of action to retaliatory actions rights; or to violations of statutory require all we employee “point that the expression to a clear public policy.” 73, Id. at logic 417 A.2d 505. ample Both precedent support finding public policy in language jurispru dence Jersey of the New Constitution. Jersey

New has found the Constitution to be such a source. See, e.g., Henningsen Motors, Inc., 358, 32 N.J. Bloomfield 404, (1960) (“Public 161 policy A. 2d 69 given at a time finds

93 Constitution, judicial and in statutory law in the expression agreed have when decisions.”). jurisdictions in other Courts See, e.g., Radwan v. wrongful-discharge claims. addressing Cir.1988) Labs., (3d (finding a F.2d 151-52 Beecham Jersey’s constitutional public policy New mandate of clear ¶1, 19); Zambo N.J. Const. bargaining, art. right to collective Stamler, 847 F. 2d (3d Cir.) (finding public policy ni v. States and New assembly clauses of United free-speech and — denied, 488 U.S. S.Ct. Constitutions) cert. Jersey Memorial Wagenseller v. Scottsdale (1988); L.Ed.2d (1985) (general Hosp., 147 Ariz. P.2d policy); as source including constitution statement Ins., 1083, Cal.Rptr.2d Sentry Gantt v. Cal.4th Hotels, Pamar v. Americana (same); 680, (1992) 687 824 P.2d (same); Palmateer 625, (1982) Inc., 370, 631 65 Haw. 652 P.2d Co., 85 124, 52 Ill.Dec. v. International Harvester Ill.2d Inc., Boyle Eyewear, v. (1988) (same) Vista 876, 878 421 N.E.2d v. K-Mart (same); Burk 859, (Mo.Ct.App.1985) 871 700 S.W.2d (same). Having 24, (Okla.1989) declared the Corp., 770 P.2d 28 doctrine, likely perceive the state’s is not to Pierce this Court constitution, as namely, its public policy, highest source of irrelevant.

IY A “[pjrivate action does stated that Appellate Division against unreasonable prohibitions violate constitutional 170, 305, and noted the N.J.Super. at A.2d searches,” 589 247 apply constitutional attempts rejection judicial consistent private-sec- on claims wrongful-discharge based protections to (citing Johnson v. 305-06, 589 A.2d 170 Id. drug testing. at tor 180, (D.Conn. F.Supp. Corp., 723 185 Technology Carpenter Co., F.Supp. 1451 Halliburton 1989); 674 v. Greco Inc., Freightways, (D.Wyo.1987); Monroe v. Consolidated (E.D.Mo.1987); F.Supp. Luedtke Nabors Alaska Inc., Drilling, (Alaska 1989)). 768 P.2d however, on misplaced, The court’s reliance Luedtke was First, Supreme two reasons. the Alaska Court in that held case despite the inapplicability constitutional-priva- of Alaska’s cy provision actors, private provision might form the public policy privacy. basis for a supporting 1132-33. Id. at Only balancing safety against after State’s interest privacy employer. individual did court find for the See Second, Luedtke, 97-98. although at the court in ac- infra knowledging protection that search-and-seizure did not extend actors, by private reasoning conduct found that “the of the regarding federal courts intrusiveness of can urine illuminate court’s of the consideration extent to which [a] personal privacy is violated these tests.” at 768 P.2d 1133.

Furthermore, at privacy there are least sources two independent right protection: of search-and-seizure the common I, paragraph law and article Jersey of the New Constitution. Riper, (Ch.), In McGovern v. N.J.Eq. Van A.2d (E. aff'd, N.J.Eq. A.1945), 45 A.2d 842 & the court right defined the right as “the of an individual to be * * * protected any wrongful private from intrusion into his outrage life which would suffering, cause mental shame or person to a of ordinary humiliation N.J.Eq. sensibilities.” 137 (also noting postulation the first aof privacy, in Brandeis, Samuel D. Warren D. & Louis The Right 4 Privacy, (1890)). to Harv.L.Rev. 193 The McGovern court did distinguish public private not from violators.

B The recognizes common law various causes of action relating right privacy. to the to One of those is the tort of intrudes, intrusion on seclusion. “One intentionally physi who otherwise, cally upon the solitude or seclusion of another or private concerns, his affairs or to subject liability to other

95 highly of his if the intrusion would be privacy, for invasion (Second) person.” to a Restatement offensive reasonable of (1977). tort, Torts, of 652B To an actionable invasion be § “by can also the use of privacy physical; need not be it arise * * * plain to oversee or overhear the defendant’s senses * * other may by affairs Or be some private tiff’s “[i]t investigation private into concerns or examination his form * * under of action the Id. cmt. b. To recover this cause prove publication any not information. Ibid. plaintiff need declared, 652B, Appellate discussing section Division In * * * person’s this the tort is aspect “The thrust of v. personal pried into.” Bisbee private, affairs should be N.J.Super. 452 Agency, C. Conover John A.2d (1982). C Jersey’s separate embraces two priva New Constitution solely Appellate privacy cy rights. Division considered I, paragraph 7—the Search and Seizure with reference article the Search The court was correct its assertion that Clause. protect unreasonable Seizure Clause does not citizens from and Jacobsen, parties, by private searches see United States (1984); 109, 113-14,104 1652, 1656, 80 L.Ed.2d U.S. S.Ct. Pohle, 504, 508-09, N.J.Super. State v. (1979), denied, A.2d 1202 but

(App.Div.), certif privacy a source of gave shrift the notion that could be short action, cause of 247 N.J.Su public policy supporting a Pierce right to A. failed to 2d and consider per. I, paragraph this derived from article privacy that Court has Jersey New Constitution. persons “All are paragraph provides as follows: That natural and independent, and and have certain nature free enjoying and rights, among which are those of unalienable acquiring, possessing, protect and defending liberty, life and happi pursuing obtaining safety ing property, and deriving Jersey from recognizes New ness.” 96 provision Williams, in varying contexts. Robert F. Constitution, Jersey

New State A Guide 30-31 Reference (1990). McGovern, supra, In the court noted that the law,” in origin its natural and one of “ha[s] “[i]t rights’ recognized I, the ‘natural and inalienable in article [sic] 33, section 1 of the N.J.Eq. constitution of this 137 state.” (The 43 A. 2d 514. constitution to which the court referred was Constitution, predecessor 1844 to the 1947 Constitution force.) in now recognized privacy right

We have a constitution-based many marriage association, contexts: Greenberg familial v. Kimmelman, 552, 572, (1985) (subject 99 294 N.J. 494 A.2d regulation by State); “reasonable” refusal of medical treat ment, Quinlan, 10, 40, (patient re 70 N.J. 355 In A.2d 647 persistent vegetative state), denied, 922, cert. 429 97 US. S.Ct. 319, (1976); 50 relations, L.Ed.2d 289 consensual adult sexual Saunders, 200, 213-14, State v. (1977); 75 N.J. 381 333 A. 2d personal information, Martin, disclosure confidential In re 295, 318, 324-25, (1982)(balanced 90 N.J. 447 A.2d against government’s information; need for required pro Court also mulgation of regulations prevent public dissemination of provided applicants information for casino employment); procreative rights, Right Byrne, 287, to Choose v. 91 N.J. 303- (elective (1982) abortion) 2d 925 A. (citing Schroeder v. Perkel, 53, 66, (1981); Allan, 87 N.J. 432 A.2d 834 Berman v. (1979); 404 A.2d Doe v. Bridgeton Hasp. Ass’n, (1976), denied, 71 N.J. 366 A.2d 641 cert. 433 U.S. (1977); S.Ct. 53 L.Ed.2d 1100 Gleitman Cos grove, 62-63, (1967) (Weintraub, C.J., 49 N.J. part); dissenting Lewin, Comras v. 183 N.J.Super. (App.Div.1982)); A. 2d 229 235, 247-50, In re Grady, N.J. (1981) sterilization). (voluntary A. 2d 467

D question Because argued, was neither briefed nor we do today not decide random whether urine violates either However, privacy rights. we common-law constitutional rights give rise a to whether those to need not do so determine public policy a fired to clear of that allows mandate Indeed, at least one other court state cause of action. a Pierce ruling privacy even while out a direct has found such a mandate testing. right precludes random that Luedtke, that Supreme In Alaska Court held the the guarantee applied only public to privacy Alaska Constitution’s private employees actors, public policy that entitled to but employers. from 768 P.2d at private withhold information their did Although right privacy to not the constitutional 1131-33. by it this court protect private employees, could “be viewed privacy.” Id. 1132- policy supporting as of a evidence at case, prob- present 33. Luedtke also confronted Like industry. in oil employee drug-testing lem riga in were who worked on plaintiffs The Luedtke brothers brother, Paul, oil-drilling failed a urine company. for an One company-mandated physical given during the course of a test testing policy company The instituted a examination. two him, suspended Paul’s initial examination and tell- weeks after passing ing might he return work after two him that tests, apart. Id. at 1125-26. Because subsequent one month tests, company he to take the first of the scheduled refused brother, Clarence, refused to him. The second terminated ” “ principle,’ ‘a id. at any submit to tests as matter and was fired. he too employers infringements by private on found that court a private information violate employee’s

an to withhold 1131-32, balancing test, devised a public policy, id. at and against competing public policy public policy weighing that at The court noted that favoring public safety, id. 1133-34. privacy intrusions into individual’s “society often tolerates urinalysis,” present id. under similar those circumstances (citing Employees Union Von Treasury National J., (5th Cir.1987) (P. Raab, Higginbotham, 808 F.2d concurring), part, part, vacated in U.S. aff'd 1384,103 (1989)),and S.Ct. L.Ed.2d 685 concluded that “it is the conducted, urinalysis reason the is the conduct not test, Although analysis,” recognizing that deserves “a ibid. sphere person’s activity every life closed to scruti others,” ny ibid., the court stated that boundaries “[t]he sphere are by balancing person’s right determined against public policies, health, safety, other such ‘the as rights privileges (quoting of others.’” Id. at 1135-36 State, (Alaska 1975) (under Ravin v. 537 P.2d Alaska Constitution, may prohibit State marijuana)). in-home use of dangerousness plaintiffs’

The court considered the work, noting finding trial drug-free perform the court’s that important ance protecting safety was in the of co-workers and of the oil field. Id. at 1136. It concluded that the “[w]here public policy supporting employee’s] privacy off-duty in [an public with policy supporting protec activities conflicts the tion safety workers, and health of other and even the [employee], the health safety paramount.” concerns are Therefore, testing private Ibid. random employees of in safe ty-sensitive jobs permissible. However, is in the interest of protecting employees’ privacy rights, the court limited the employer’s power to testing test: must be carried out “reasonably contemporaneously]” employee’s with the work (Paul’s time during vacation), initial test had been month-long a employers give employees must adoption notice of the of a drug-testing program. Id. at 1136-37. Because the brothers had of they take, notice the tests that refused the court upheld firings. Id. at 1137.

Thus, persuasive precedent supports finding a clear mandate public policy privacy of rights from several sources. Al- though Constitution, one of those sources is the State we emphasize finding that we are opinion this a constitution- right governs al to privacy private that the conduct of actors. Rather, existing we find privacy protec- that constitutional policy public clear mandate of may the basis for a tions form claim. supporting wrongful-discharge Y A privacy viola Hennessey alleges types two different of urine in the First, that forced extraction tion. he asserts Second, extremely he intrusive. presence of an observer employer potentially gives process that the claims employ about the private irrelevant information access to much agree example. with presence epilepsy, for We ee—the testing by mandatory random urine plaintiffs contention sufficient to an invasion of private employers can be deriving the common law and public policy, from both breach Order Police v. Jersey's Constitution. See Fraternal New 430; Newark, 2d 524 A. City N.J.Super. Worth, Handler, L.Rev. B. Alan Individual see also Hofstra (1989) inherent (“Dignity invokes the values free from personality and the to be integrity of one’s own intrusion.”). simply breach of

However, needed than more is rights affecting single person’s to constitute the breach policy requires. public policy Pierce of a “clear mandate” of competing weighing public policy is a matter Determining See, Wright of Educ., v. Board e.g., interests. right (1985) (although public employees have negotiations by is scope determined bargaining, of

collective government employees, and in of balancing competing interests policy determina governmental of impairment order to limit Co., 29 Ledger N.J. tions); Morning Newark Coleman v. (1959) cases is (privilege in defamation 149 A.2d competing individual’s accommodating interests: by determined security” opposed to “collective protect reputation as right to disclosures); to make interest officials’ freedom public (1957) (attor- Kociolek, 129 A.2d 23 N.J. v. State ney-client privilege competing public is “an of accommodation interests”).

A policy” public “clear mandate of must be one that on public. Pierce, supra, balance is beneficial to the In we exam public drug ined the interest in continued research and decided Hippocratic that the oath did not “contain a clear mandate of public policy prevented continuing that Dr. Pierce from her on loperamide.” research at 505. Because A.2d public has an development drugs, interest the of “[t]he subject approval responsible management the of a and the FDA, protect mankind,” ibid., promote the health we concluded that Dr. Pierce had stated a cause of action for short, wrongful discharge. In right we her balanced to act according against to her protect conscience the need to the public.

Similarly, although employees right protect have a to be privacy, ed from intrusions of we must also consider com public peting safety. interest in To constitute a “clear mandate public policy” supporting a wrongful-discharge cause of action, employee’s (here, privacy) individual must outweigh competing (here, public safety). interest jurisdictions Other recognized that have such a cause of action approach, seeking have used a similar to “accommodate the competing society, interests of the employee employer.” and the Corp., supra, Burk v. K-Mart (citing P.2d Palmateer Co., supra, International Harvester 52 Ill.Dec. at 878). N.E.2d at considering wrongful-discharge

Courts claims in the context drug balancing have also used similar They tests. private have held that termination of a who failed a drug may support claim, test wrongful-discharge only to temper holding by stating if plaintiff’s job safety-sensitive, competing policy safety will defeat an privacy. Luedtke, individual interest In the court justified balancing its use recognizing test the ex-

101 rig. on an 768 P.2d at work oil treme hazards associated with 155, 406 Corp., 185 Twigg 12. In Hercules W. Va. 1136 & n. v. mandatory drug (1990), court found that 52 the random S.E.2d right to testing employer is a violation the by private a contrary public policy. Id. at 55. privacy, as such is and rule, exceptions to that one However, court made two also public job responsibility involves being employee’s “where exception The other safety safety of others.” Ibid. good a “reasonable faith testing employer has allows when usage." employee’s drug Ibid. suspicion of an objective Co., 218 Transportation And in Luck v. Southern Pacific — 618, -, denied, 1, U.S. Cal.Rptr. cert. Cal.App.3d 267 (1990), 344, appeals a court 309 California 112 L.Ed.2d S.Ct. prior holding Supreme Court’s “that California noted sample 'privacy dignitary and inter taking urine invokes of a process and search and seizure protected by the due ests ” 713, Melton, (quoting People at Cal.3d Id. clauses.’ 741, 7, denied, 7, n. cert. 880 n. 750 P.2d Cal.Rptr. (1988)). The court 102 L.Ed.2d 346 488 U.S. S.Ct. urinalysis upon reasonable “intrudes in Luck concluded that Ibid, (citing v. Times expectations privacy.” Wilkinson Cal.Rptr. 203-04 Corp., Cal.App.3d Mirror Luedtke, supra, Twigg, courts in (1989)). As did the however, finding its court in Luck moderated permis privacy are violating the noting that intrusions interest,” with the compelling id. “justified by if sible of proof. burden employer bearing the promote argued its need to had employer in Luck agree- Implicitly presented compelling interest. safety such employer that the had on to determine ing, the court went safety-related that there- plaintiff’s job was shown that the refusing to random urine discharging submit her fore policy. at 630-32. Id. violated agree We Supreme with the Alaska Court’s conclusion safety outweighs right that a to in off-duty activities. Luedtke, (“the supra, See at safety P.2d health and Luck, paramount”); concerns are supra, Cal.Rptr. accord 630-32; Ttvigg, at at public 406 S.E.2d 55. The has a compelling safety. Fields, interest in State v. 77 N.J. (1978) (noting “the compelling State’s interest in maintaining safety security citizens”). Thus, the of its (or firing failing take) whether an for refusing to a random urine test public violates a clear mandate of policy depends on the employee’s job. public’s nature the in ensuring interest safety-sensitive that workers in positions drug-free outweighs any are individual privacy, to and one way to is permit employers that interest to to test vindicate discharge failing those workers and to for them those tests. question closely Because that is so type job to related for conducted, may which is it be better resolved in a agreement collective-bargaining by legislative or action. See However, at 107-08. development, judicial absent such a infra appropriate. resolution is

B ascertaining In employee’s whether an rights individual con- a public policy,” stitute “clear mandate of we must balance the public against interest employee’s right. employee’s If the are fraught duties so with hazard his attempts or her perform them a drug impairment while in state of pose would co-workers, threat to workplace, to the large, to the then employer prevail. must

Several Eagle administrators from Coastal testified about the dangerous of Hennessey's job. nature Hoey (manager Michael relations) of employee noted an affidavit that Hennessey indeed, supervision; received little direct the refinery’s round- requires the-clock employees working schedule nights and “carry responsibilities weekends additional managing emer- support And James called in.” gencies appropriate until the Division, manager Storage of the Movement and Myers, the potential consequences of error that the an affidavit attested resulting staggering death or fires in human are and include and/or explosions damage injury; land and water, air; severe environmental property bodily surrounding damage injury multi- and extensive and human community; damage For error refinery. million dollar within example, property in the can cause an overflow of product lead such as Mr. Hennessey, pumper, result in a are moved and stored and can vapor Tank Farm where products major ignited in a will result fire and/or which, source, cloud if by any surrounding impacting the entire refinery community. explosion danger. acknowledged potential Hennessey himself not why care must be taken deposition asked in a When overflow, replied, don’t want he “You permit the oil tanks thing product. it’s ground the oil on the for one because wasted enough, explosion.” an And when you And if it’s volatile have * * * pumpers it that the and “important asked whether was answered, duty,” he they on gaugers remain alert while were “Certainly.”

C dispute potential hazards Although Hennessey not the does Eagle his he Coastal must use job, with claims that associated testing impairment. for He con- means of the least-intrusive drugs only presence of testing the tends first that urine detects Second, impairment. he system, degree the of in the not ineffectiveness, testing violates his argues urine that its besides detecting impairment privacy because less-intrusive means perform- or He maintains that either observation are available. methods problems. Those testing ance would resolve both drug only from or alco- impairment resulting not would detect instance, various from sources as well—for hol but other abuse intrusive than would also be less types of stress. Those means are that those means testing. Eagle contends urine Coastal unsuper- plant in the are many of the workers because feasible vised. Department

Amicus curiae of the Public Advocate contends Police, NJ.Super. that Fraternal Order 430, supports private requirement A. 2d that employers use testing. deciding the least-intrusive means In that police random violated officers’ search-and-seizure rights Constitution, Jersey’s under the Appellate New Division “ required prove that the defendants ‘overall reasonable ” and validity ness the search.’ at Id. A.2d 430 (quoting Valencia, State v. 459 A. 2d 1149 (1983)).

The Public claims that Advocate Fraternal Order of Police, availability the court’s consideration prac- and “[t]he ticality investigating of alternative means of the asserted evil” determining reasonableness, ibid., as one factor indicates employers that must use the testing. least-intrusive means of However, “availability practicality” highly fact-specific is a instance, requiring standard. For reasonable individualized suspicion drug testing, the court weighing noted that “[i]n intrusion, against private need the courts are persuaded by drug of a showing absence factual use is widespread among employees presents affected it public,” 472-73, risk identifiable to the id. 524 A.2d reasonable-suspicion concluded that a requirement balanced the employee’s privacy interest with employer’s need to “moni- drug 473, tor among and control” use its employees, id. at 524 Here, A.2d 430. showing the record indicates of drug both (a among employees nineteen-percent positive use result “pre-employment” physicáls evidence of on-site mari- juana use) (the public danger and an identifiable risk to the of explosion or environmental accident as the result of a by a pumper). mistake lead court Fraternal Order Police cited three cases in upheld drug

which federal public courts random 473, employees. (citing Id. at McDonell v. Hunt- er, (8th 1302, Cir.1987) (corrections 809 F.2d 1308 officers having regular day-to-day contact with inmates medium- or

105 maximum-security prisons); Rushton v. Nebraska Pub. Power (certain (D.Neb.1987) Dist., F.Supp. employees of 653 1510 (8th Cir.1988); power plants), aff'd, 844 F. 2d 562 Mack nuclear (S.D.N.Y.1986)(FBI States, agents), F.Supp. 70 v. 653 United Cir.1987)). (2d distinguished those cases aff'd, 814 120 It F.2d occupations by noting they employees whose all involved 473-74, testing.” 524 presented “public need for such Id. potential danger refinery in an oil is certain A.2d 430. The to, as, quite if that in a nuclear ly analogous not as intense power plant. decided, was

In the time since Fraternal Order Police testing of some urine federal courts have allowed random heavily-regulated or in indus in the sector employees See, Treasury Employees Union v. Von e.g., National tries. Raab, 685 supra, 489 L.Ed.2d U.S. S.Ct. (customs specified or employees seeking promotion transfer to Ass’n, 489 positions); Railway v. Labor Executives’ Skinner (1989) (railroad 602, 109 S.Ct. 103 L.Ed.2d 639 U.S. safety violate involved train accidents who employees rules); 884 F.2d Employees Cheney, Fed. National Fed’n of (civilian Army working in (D.C.Cir.1989) employees of U.S. aviation, positions), police-guard, or substance-abuse-treatment denied, L.Ed.2d cert. U.S. S.Ct. (D.C.Cir.1989) (1990); F.2d 484 Thornburgh, Harmon v. clearances), (Justice employees top-secret who hold Department denied, 1056, 110 107 L.Ed.2d 949 cert. U.S. S.Ct. (1990). Police, supra, relied on

The court in Fraternal Order of promulgated. guidelines Attorney General had Those drug They random test- guidelines instructive. advise that are because police inappropriate would be ing of officers use, drug widespread but no conclusive evidence there was because drug

objective those law enforcement use indications of will adequately identify illegal drugs. objective absenteeism, such as factors officers who use Specific as to and confidential information lateness, of work chronic habits, deterioration objective illegal drug bases or to use constitute reasonable reasonable suspicion (footnote illegal drug will evidence of use. suspect urinalysis produce omitted). (quoting Drug at Law Enforcement 476, 524 A.2d Screen [216 N.J.Super. ing (1986)).] Guidelines case, however, In this such indications are not available Hennessey, safety-sensitive posi in because and other workers refinery, independently. at the tions often function That lack supervision impairment imprac renders observation to detect “Detecting drug impairment tical. part employees on the * * * task, especially can be a difficult where it is not feasible subject employees product their day- and work the kind of to-day scrutiny that the norm in more traditional office Raab, 674, 109 supra, environments.” Von US. at S.Ct. 1395, 103 L.Ed.2d at 707. testing

Plaintiff also contends that urine is not a valid meth- preventing drug-related testing od of accidents because urine impairment. does not detect Cheney, supra, actual In appeals argument by noting court of a similar dismissed Supreme simply Von Raab the Court had “referred to the responsibility against Service’s broad [Customs] ‘ensur[e] dangerous risk,’ urinalysis testing creation of this a risk that reasonably, imperfectly, helped prevent.” albeit detect and Raab, (quoting F.2d at 609 Von 489 U.S. at 705). S.Ct. at 103 L.Ed.2d at agree We that the combination of the impracticality of detecting drug urgent less-intrusive means of use and the need public safety permissible to ensure renders urine preventing drug among method of employees safety- use However, jobs. emphasize importance sensitive we protecting employee privacy, strongly and to that end we employers implement recommend that formulate and measures designed testing process. to minimize the intrusiveness of the testing procedure Those measures include a should that allows dignity possible; notice, as much as close beginning time testing program to the of a but sufficient to warning, pro- announces the provide adequate advance tested, selecting employees to gram, details the method for be lingering drugs in employees of the effect of certain warns system, explains sample analyzed, will be and notifies how testing refusing employees consequences positive of Furthermore, employers may conduct to take the test. presence drugs of necessary those tests to determine the urine, obligation are under an not to disclose information testing. obtained as a result of

VI safety-sensitive Hennessey’s em Because the nature potential public injury, ployment raises the for enormous outweighs public policy supporting safety any public policy Therefore, rights. uphold supporting individual we note, Eagle’s discharge Hennessey. Coastal decision to We however, complex drug-testing in the that the issues of work legislative place are better addressed the contexts action agreements. Legislature or labor-relations has defined See, testing. e.g., limits of other forms of 2C:40A-1 N.J.S.A. tests); (lie-detector (psychiatric testing 18A:16-2 to -3 N.J.S.A. education); employees for of boards of N.J.S.A. 40A:14-146.10 officers). testing special (psychological law-enforcement Moreover, body explored workplace drug testing, has see Ques Sherman, Workplace Drug Testing Legal Raises Rorie 21,1987, tions, Journal, (noting Jersey May at 34 bill New Law drug testing regulate to that was then before State Senate Committee), Labor, Industry and Professions and can more rights employers fully competing the contours of the define legislation control employees. Many states have enacted to See, variety e.g., drug in a of contexts. the use (1991); 15-513 Conn.Gen.Stat.Ann. Ariz.Rev.Stat.Ann. § 31-51tto-51aa(WestSupp.l992); 112.0455 Fla.Stat.Ann. § §§ (Michie (West Supp. 21-2-140 Supp.1992); Ann. Ga.Code § (Michie (candidates office); 1990) 45-20-90 to -93 for §§ 1990) (state high-risk jobs); 45-20-110 to -112 employees in §§

(Michie 1990) Haw.Rev.Stat. (applicants employment); state Iowa Ann. (Supp.1991); (West 329B-1 to -8 Code 730.5 §§ § Kan.Stat.Ann. Supp.1992); to (Supp.1991); 75-4362 -4363 §§ :1002, :1008, La.Rev.Stat.Ann. 49:1001 to :1005 to :1011 §§ :1012, (West Me.Rev.Stat.Ann. Supp.1992); :1015 tit. (West Supp.1991); Md. Health-Gen. Code Ann. 681-690 §§ Minn.Stat.Ann. (1990); (West 17-214.1 181.950 to .957 § §§ Miss.Code Ann. Supp.1992); (Supp.1991); 71-7-1 -33 §§ Mont. Code (1991); Ann. Neb.Rev.Stat. 39-2-304 48-1901 § §§ (1988); KC.Gen.Stat. (Supp.1991); -1910 to -234 95-230 §§ R.I.Gen.Laws S.C.Code Ann. (Supp.1991); 28-6.5-1 55-1- § § S.Dak. Laws Ann. (Law.Co-op.1992); 100 23-3-64 §§ Codified Utah Code Ann. (Supp.1991); (1988); -69 34-38-1 to -15 §§ 21, Vt.Stat.Ann. (1987). tit. 511-520 §§ judgment Appellate The of the Division affirmed. No costs.

POLLOCK, J., concurring. agree I majority employer with the that an does a not violate public policy firing clear mandate safety-sensitive of a a I drug agree who fails random also test. that both 1, paragraph Jersey Constitution, article 1 of the New ante at 92-93, ante at right privacy, 98-99, and the common-law may be a sources of such mandate under Pierce v. Ortho Pharma- Corp.,

ceutical 58, (1980). 84 N.J. Finally, agree I regulation drug workplace in the is better by legislation labor-management achieved agreements. Ante at 107.

I separately write because I believe the common law provides public policy clear mandate support wrongful discharge claim for privacy. based on an invasion of Although majority recognizes right that the common-law privacy mandate, 94-95, ante supports such a it also relies on 1, 1 paragraph article as an alternative disagreement, although seemingly esoteric, source. The re- perceptions of the role respective in our difference veals basic judiciary. of the

-I- a court principles counsel that jurisprudential Established a non- constitutional basis when not decide a case on a should sound, “[Tjhere oft- is the basis is available. constitutional questions should not be constitutional expressed principle that dispo imperative in the absolutely unless and resolved reached process admits litigation. adjudicative While sition any to rules, close as this maxim comes as unyielding fewof Saunders, 229, 200, 75 N.J. being an absolute.” State v. v. dissenting). Accord Donadio J., (1977) (Clifford, .2dA Ahto v. (1971); 309, 325-26, 277 A .2d375 Cunningham, N.J. Salerno, Weaver, State v. (1963); .2d27 N.J. 189 A Wright, v. (1958); Grant .2d 27 N.J. A denied, 197-98, N.J.Super. (App.Div.), .2d319 536 A certif. Corson, 67 N.J.L. (1988); State 111 546 .2d 493 A 50 A. (Sup.Ct.1901). its basis for majority tries to avoid a constitutional today decide whether by stating that “we do not decision common-law or constitu- urine violates either random proceeds, how- Ante rights.” at 96-97. It then privacy tional right. say majority ever, To as recognize a constitutional to mandate of 1, provides 1 a clear paragraph article says that ibid., “we are simultaneously saying that policy, while public right privacy finding opinion a constitutional this actors,” ante is to draw private of governs the conduct Jersey Constitution Either the New fine a distinction. too protects private a right privacy that supports a of If, majority not. as the drug testing or it does random from recognizes right, a then finds, such Constitution State by not I avoid the dilemma would right should be enforceable. issue. reaching the constitutional resorting right, quasi-constitutional

Instead of to a the Court need look the common for clear public law a mandate of policy. recognized We that the common is have law better suited transport than notions of constitutional law fairness justice example, judicial into decisions. For we have writ “[although ten that constitutional considerations have dominat ed years, provides defamation law recent the common law alternative, stable, potentially analyz more framework for ing statements about matters of interest.” Dairy Stores, Co., 125, 139, Inc. v. Pub. Sentinel 516 2dA. (1986). right

Historically, privacy was conceived not aas constitutional, common-law, concept. as a right but The traces origins its in civil law to a article law review written over a century ago by Professors Samuel Warren D. and Louis D. Brandéis, privacy only which discusses as a common-law con- cept. (1890). Right Privacy, Harv.L.Rev. As with law, defamation right privacy the common-law has been first adopted, by parallel then absorbed a right. constitutional right, Courts have initially transformed the was which con- ceived as a for means courts to resolve differences between private parties, a protect into vehicle to individuals from state action. finding specific

Not any textual to support reference right, Court, Supreme United States in the landmark case of Connecticut, Griswold v. U.S. S.Ct. (1965), 14 L.Ed.2d it in placed penumbra “a privacy protected governmental where from intrusion.” Jus- dissented, stating: tice Black ** * Observing recognition that “the presses here,” today this did Court, which I not understand to have to sit as a court power exalting common now to be which law, Warren and appears Brandéis phrase discussing grounds used in for tort level of to the relief, constitutional rule legislatures passing

which state from law deemed this prevents Court to any interfere with “privacy.” [Id. 85 S.Ct. at 510 at 1695 L.Ed.2d n. n. at 530-31 n. 1.]

Ill only exceptional courts create common law circum Federal Indus., applicable stances not here. Texas Inc. v. Radcliffe Materials, Inc., 630, 641, 2061, 2067, 451 U.S. S.Ct. (1981) (“absent congressional some L.Ed.2d authoriza decision, rules of tion to formulate substantive federal common law exists in such narrow areas as those concerned with States, rights obligations the of the United interstate and disputes implicating conflicting rights international nations, foreign or our admiralty States relations with cases”) (footnotes omitted). Compare Tompkins, Erie R.R. v. 64, 78, 817, 822, (1938) 304 U.S. 58 S.Ct. L.Ed. (“There law.”) general is no federal common with Hinderlider Co., 803, 822, v. La Plata 304 US. 82 L.Ed. S.Ct. (1938) (“whether the water of an interstate stream apportioned question must be the two is a between States ”). By comparison, ‘federal common law’ state courts for cen disputes turies have resorted to common law to resolve private parties. jurisdiction, of limited between As courts U.S. Ill, understandably may art. federal courts Const. be § decisionmaking. confined to constitutional Less understanda why tendency persuade ble is that of federal courts should this ignore birthright. court to its common-law

-II- public policy supporting privacy The differs from public policies recognized wrongful-discharge in other major Jersey cases. A difference is that neither the New any legislation expressly recognizes right. nor Constitution wrongfulness discharge infringes of a on a interest, therefore, discharge apparent is not as as a manifest, explicit right. example, violates a more More wrongfulness discharge statutory man of a that violates date, discharge filing in retaliation for a claim under such as a law, compensation Lally Copygraphics, the workers’ 85 N.J. (1981), investigating or for a claim under A.2d 112 discrimination, employment preventing

laws Velantzas v. Col Co., (1988). 109 .2d gate-Palmolive N.J. 586 A 237 problem in Compounding the is the limited role of courts declaring public policy subject. on so As majori- sensitive ty recognizes, complex drug-testing issues of in “the the work- place legislative are addressed in of better the contexts action agreement.” or labor-relations Ante at 107. These consider- judicial response ations counsel a accords to em- latitude ployers, in employees, Legislature addressing and the prob- lem. A response right privacy based on the common-law of provides greater constitutionally latitude than one is based. moreover, response, naturally Such a flows from state courts as the custodians of the common law. perspective parties,

From the of the the issue is the extent to employer may inquire employee’s which an about conduct the inquiry aspects employee’s when involves of life that private. aspects would remain employ- otherwise Some of an protected ee’s life inquiry should be from the unwelcome of an employer; others are more amenable review. analysis right privacy

Traditional constitutional of privacy identifies two interests. making One is concerned with in “the interest in autonomy, independence v. certain kinds of Roe, Whalen U.S. decisions.” 429 97 important 589, 599, (1977).

S.Ct. L.Ed.2d 51 73 869, 876, The other interest is one of confiden- avoiding “the individual interest in of Id. disclosure matters.” tiality, personal 97 S.Ct. at 598-99, L.Ed.2d at 73. The of is protection autonomy marriage, including limited to a few “fundamental” areas, contra- procreation, rearing, child and education. ception, family relationships, Mekhjian, (Pollock, concurring) v. N.J. [Snyder 328, 342, J., A.2d (citations omitted).] privacy right autonomy, although The not expressly men- tioned, implicit fairly paragraph article 1 of the New Heckel, Jersey C. Rights, Constitution. Willard The Bill (1951). II Convention Constitutional Ac- cordingly, we have found: right including has been found to extend to a of areas, variety right consenting sexual conduct between adults; sterilization; and even right These cases establish that “under some to terminate life itself. to control her and life an individual’s own circumstances, body personal general preserving interest life.” overrides State’s (1982) (citations [Right v. 91 A.2d Choose Byrne, 287, 303, omitted).] Lair, 388, 398, (1973) (Wein v. 62 N.J. State Cf. traub, legitimacy concurring) (expressing doubts about C.J. sex); criminalizing statute consensual homosexual Gleitman C.J., (1967) (Weintraub, .2d689 Cosgrove, 49 N.J. 227 A criminalizing concurring) (considering legitimacy of statute light right bodily integrity); of woman’s Smith v. abortion Examiners, 46, 53-55, (Sup.Ct. 88 A. 963 Board 85 N.J.L. of 1913)(setting epileptic for sterilization of on federal aside order protection grounds). equal right die” demonstrates the

The evolution of “the Court’s appreciation judicious predicate right it is more of common-law, constitutional, privacy rather than a basis. on case, Quinlan, In the first such In re N.J. 355 A .2d 70 97 Garger Jersey, cert. denied sub nom. v. New U.S. (1976), right predicated 2d 289 S.Ct. L.Ed. Court rights patient’s respirator to remove the on the 38-40, Jersey under the New and federal constitutions. Id. at 647. Later shifted the of our decisions to the 355 A.2d we basis right autonomy. of self-determination or In re common-law 321, 346-48, (1985). 486 A .2d1209 Even more Conroy, N.J. right “primarily” recently, recognized we have that the is based Farrell, common 529 A .2d on the law. In re (1987). judicial pref the traditional That evolution reflects basing It also reflects erence for decisions on the common law. awareness that a common-law basis smooths this Court’s legislative Conversely, action. when a court bases its path for privacy, places constitutional it an decisions on the legislative decision-making beyond control. undefined area of drug testing inevitably of the issue of random Evaluation employee em- compels balancing the interests of the and the employee’s employer’s perspective, From an an use ployer. example, drugs presents multiple problems. For the use illegal see employee’s performance, drugs can affect an illegal al., Drug Preemployment Zwerling, Efficacy et Craig Predicting Employ- Screening Marijuana and Cocaine for (1990) (positive pre-employ- Outcome, 264 JAMA ment ad- or cocaine associated with drug marijuana ment tests co-workers, outcomes), endanger and in- employment verse health-care costs. crease however, samples, im drug testing through urine

Random ways. privacy interests in two One employee’s pinges on an taking specimen; the other process of the urine arises from the employee’s life that would intruding into areas of from employer. to the Borse v. Piece remain unknown otherwise Cir.1992). (3d Appropriate 622-23 Shop, 963 F. 2d Goods of the method of collection. steps the intrusiveness can reduce agencies example, at least three federal have 107. For Ante at specimens may main integrity of urine be determined that the employed this type of direct observation tained without Transportation); (Department of 40.25 case. See C.F.R. § Guard); app. A 2.4 (Coast pt. 16.310 C.F.R. 46 C.F.R. § § Commission). (Nuclear Regulatory otherwise-private information about Acquiring however, information, Disclosure of such more troublesome. confidentiality, interest see implicates only employee’s the F.Supp. Technology Corp., 723 Carpenter v. Johnson as well as autono (D.Conn.1989), interest that has not fared an (Pollock, J., 2d 318 at 593 A. my, Snyder, supra, N.J. interest, acknowledges, concurring). majority this when As the safety-sensitive position, is weak. by an in a invoked question of the extent to Remaining open is the Ante at 102. strengthens the confidentiality of that interest as the which safety-sensitive. less A con responsibilities become employee’s right, but one that is fidentiality interest is not a fundamental weighing personal balancing the nature assayed “in a test against of the disclosure the and the extent the information safeguards against undue and the need for the information disclosure.” Snyder, supra, at 2d A. (Pollock, J., concurring). speculate implications

Rather than the about of the character- confidentiality istics of the drug testing, interest random I question altogether. would avoid the constitutional The com- provides adequate mon law an by answer. As defined (Second) (1977), Restatement Torts 652B “one who inten- § intrudes, tionally physically otherwise, upon or the solitude or private concerns, seclusion of another or his affairs or is subject liability privacy, to the other for of his if invasion intrusion highly would be person.” offensive a reasonable

Application of that test competing involves a balance of observed, recently interests. As the Third Circuit “determining alleged an privacy highly whether invasion of and substantial person to the offensive reasonable necessitates the use of a Borse, balancing test.” 963 F. 2d at 627. With random drug testing by private employer, implicate the test will both employee’s privacy employer interests and the need of the for the test results. premise, majority

Consistent with that strongly formulate and measures recommendfs] employers implement designed testing to minimize the intrusiveness of the Those measures process. testing dignity should include a that allows as much and as procedure beginning testing program close time to the of a but possible; notice, warning, program, sufficient advance that announces provide adequate selecting details the method for to be tested, warns of the employees employees lingering drugs effect of certain in the how the will be system, explains sample and notifies analyzed, employees consequences positive refusing to take the test. conduct Furthermore, those employers may drugs tests to determine the in the urine, are under necessary presence obligation testing. not to disclose information obtained as a result of

[Ante 106-07.] Although majority does indicate whether its test apply if would the common law were the sole source of policy, balancing the tort of intrusion would involve the kind of suggested Detroit, Earp City test. See (fact-sensitive Mich.App. (1969) 167 N. 845-46 W.2d

balancing between interest of and business employer). interest of

Missing from majority’s public the calculus is policy the against illegal drugs. Legislature use of The has found use, that “the unlawful manufacture and distribution of con- dangerous trolled pose substances continues to a serious and pervasive health, safety threat to the and welfare of the citi- 2C:35-l.l(b). zens of this State.” Recently, N.J.S.A. Governor Jim Florio announced the non-profit corporation, formation of a the Governor’s Drug Workplace. Council for a Free The Coun- purpose cil’s is “to rid illegal drugs offices and factories of develop drug-testing policy a uniform by for use businesses.” Schwaenberg, Robert Drugs in the Workplace: Chamber of Commerce, Policy, Star-Ledger, State Join to Chart Test The July Thus, at 1. policy of this state is to illegal deter the use of drugs. clear So a mandate should among doubtless be included the interests to be balanced determining whether drug testing supports random an action wrongful discharge. majority only ignored has not this important aspect public policy, postulating but a constitu- tional privacy, complicated legisla- has the task of the tive and defining executive branches in drug limits of workplace. in the

Recognition of a privacy right common-law limits an employer’s right drugs to test for does not foreclose all such testing. plaintiff A asserting a cause of action based on the tort of high intrusion must clear a threshold. To maintain the action, plaintiff must establish that “the intrusion would be highly person.” Restatement, offensive to a reasonable Although 652B. yet we have not considered torts of § intru sion, Appellate in Figured Division Paralegal Technical Servs., N.J.Super. (1989), 555 A.2d 663 dis certif. missed, (1990), 121 N.J. 583 2d 350 A. Law Division N.O.C., Schaefer, N.J.Super. Inc. v.

(1984), and the United States District Court for the District of Jersey Books, Inc., New in Tellado v. F.Supp. Time-Life in sum- All three resulted (1986), them. have considered the defendants. judgments for mary law as a recognized the common Pierce, expressly In we action tort support an policy that would source .2d 505. 417 A wrongful discharge. 85 N.J. contract for survey need public policy, the Court a source of To find need right. It constitutional an uncharted boundaries solely on common- By relying existing tort action. out an stake a entanglement with avoid majority can principles, law issue. constitutional courts are to if state common law is essential

Regard for the in the federalist partners as discharge responsibilities their formerly future, state courts In cases that system. judicial may basis be a federal constitutional might have resolved on law can ground. The common independent state on an resolved courts resort the extent that state ground. To provide such ques- law, constitutional they can avoid a state to the common evolving role of integral to the Thus, law is the common tion. system. in the federalist state courts provides a sum, of invasion of common-lawtort In article public policy than does source of satisfactory more to determine whether Constitution 1 of the State paragraph give rise to a employer would private random plaintiff I affirm because action. would wrongful-discharge prohibit- public policy clear mandate of identify a has failed to fails a employee who safety-sensitive discharge of a ing the drugs. illegal urine test for and Justices WILENTZ Justice

For affirmance —Chief POLLOCK, O’HERN, HANDLER, GARIBALDI CLIFFORD, and STEIN—7.

Opposed—none.

Case Details

Case Name: Hennessey v. Coastal Eagle Point Oil Co.

Court Name: Supreme Court of New Jersey

Date Published: Jul 20, 1992

Citation: 609 A.2d 11

Court Abbreviation: N.J.