Luedtke v. Nabors Alaska Drilling, Inc.

Municipality. More- to the ing the transfer LUEDTKE, (d) Appellant,

over, 44.62.570(c) and AS 44.62.- G. AS Clarence inde- 560(e) exercise its allow the court to record, judgment, augment pendent DRILLING, ALASKA NABORS novo, enjoin compel or hearing or de hold INC., Appellee. Appellate Rule agency action. also See Therefore, interests were Messerli’s 609. LUEDTKE, Appellant, Paul M. pending ad- protected by the adequately Thus, he would not appeal. ministrative by the loss of irreparable harm suffer DRILLING, ALASKA NABORS parcels. unique these INC., Appellee. S-2074,

Nos. S-2127. CONCLUSION V. Supreme Court of Alaska. foregoing, REVERSE Based on the Feb. 1989. 85- in Case 3AN the trial court’s decision Rehearing Denied March 1989. denying estopping the state from Bay and Jack the Potter’s Marsh Messerli court’s decision that

parcels, and the trial preference right value value. in its decisions AFFIRM the trial court

We conditioning granting,

regarding DNR’s right.9 preference

and documentation attorney’s fees is VACATED

The award redetermination

and REMANDED for to the

light of decision. REMAND our We to remand to

superior court with directions convey selection number six

DNR to Messerli to resume

Messerli allow parcel if selection comparable

search for a

six is unavailable. of a AFFIRM the trial court’s denial

We

temporary restraining prelimi- order and injunction 3AN 85-14108.

nary case prejudiced.” seriously Sylvester appealed his tial Messerli the trial court’s denial of supplement points (Alaska 1986) Sylvester, motion to the statement appeal. adequately (citations omitted). The state and Messerli do find merit in Nor we merits of the issues raised in Messer- briefed the attributes his failure "cause” to which Messerli these issues meritless. li's motion. find identify R.App.P. issues. See Alaska certain Therefore, abuse of Messerli has not shown an 210(e). discretion; deprived "he was of a substan- Clocksin, Wagstaff, Pope

Don & Clock- sin, Cooperating Atty. for the Civil Union, Anchorage, Douglas and Liberties Elliott, Anchorage, appellant P. for Clar- ence Luedtke. G. Coe, Smith, Patterson,

Charles W. Coe & P.C., Anchorage, appellant Paul for M. Luedtke. Poteet, Associates,

Mary An- Winner & chorage, appellee. MATTHEWS, C.J.,

Before WITZ, BURKE, RABINO COMPTON MOORE, JJ. COMPTON, Justice. aspect drug

This case one addresses testing by employers. employer, A private (Nabors), Drilling, Nabors Alaska Inc. es- drug testing program tablished its employees. employees, Two Nabors Clar- Luedtke, ence Luedtke Paul both of rigs drilling worked on on the whom North employee on for two urinalysis nent vacation weeks. to submit Slope, refused work, During temporary Na- his two weeks of required use as screening for position opened up rig Na- on the permanent fired a result bors. As dis- challenge working their he and he was The Luedtkes on which was hired bors. following charge grounds: began fill it. Paul as a “floorman” and eventually promoted to “driller.” A drug testing program vio- 1. Nabors’ of an entire drill- driller oversees work guaran- privacy to lates the Luedtkes’ ing crew. I, the Alaska by teed article section of Constitution; a started work with Nabors as un- Paul member, initially being hired from the ion the cove- 2. demands violate Nabors’ tenure, During however, hall. his dealing implicit union and fair nant of faith contracts; the union. Paul continued in all Nabors “broke” employment a contract. work without union Paul to urinalysis requirement vio- 3. Nabors’ with Nabors at the had no written contract privacy, in personal interest lates the discharge. of his time a for giving Luedtkes cause of action wrongful discharge; and Nabors, During employment his violating Paul accused twice of was give cause actions rise to a Nabors’ company’s drug policies. Once alcohol tort of of action under the common law suspended days taking he was for 90 for privacy. invasion of Slope. North The other alcohol to the inci- argues that Nabors the Luedtkes rig on involved a search of the dent re- employees “at whose will” dogs by trained to Paul worked. Aided any time lationship could be terminated at marijuana, searchers out found sniff if ter- Alternatively, for even reason. marijuana of on Paul’s suitcase. traces cause,” “just mination had to be based on working allowed continue on Paul was such existed the Luedtkes cause because only assuring supervisors rig after his relat- company policy violated established marijuana. not use he did ing safety by refusing to take employee the scheduled tests. a In Paul scheduled two- October his normal work vacation. Because week impression raises issues of first

This case schedule was two weeks work including: con- whether the Alaska law off, Slope followed a week a North pri- privacy applies stitutional to 28 consecu- vacation amounted two-week parameters parties; some of the tort vate prior away days from work. Just tive discharge; wrongful and the extent vacation, Paul instructed ar- his was testing by drug which certain range physical a An- for examination private employers can be controlled place take chorage. arranged He for it to courts. It during his vacation. was on October first tested this examination that Nabors AND I. FACTUAL PROCEDURAL drug signs of use. The urine for Paul’s BACKGROUND physical, as understood purpose of the proceeded separate- The Luedtkes’ cases Paul, on off- to enable him to work was Because raised com- ly they to judgment. rigs should receive such con- Nabors shore issues, on motion legal mon Nabors’ Although it would told tracts. Paul was appeal. were consolidated had no comprehensive physical he idea screening for urinalysis test A. Paul’s Case. did performed. He voluntar- would be use Background. 1. Factual it give sample a urine but assumed ily sugar, any Nabors, only tested for “blood working began which would Paul kidney problems with failure drilling rigs North kind of operates on Alaska’s [and] bleeding.” policy Nabors’ began Slope, February 1978. He not announced until Novem- perma- drug use was temporary employee, replacing a claim, on both Paul’s the invasion weeks after two almost ber theo- and common law tort constitutional examination. voluntarily dis- Prior to trial Paul ries. 1982, Paul contacted early November The trial his defamation claim. missed flight to the North his regarding Nabors trial, court, non-jury held for Nabors in a He told at was to work. Slope to return wrongful dismissal and breach on Paul’s office in to the Nabors report that time to claims. contract report- Paul Anchorage. November On representa- Nabors ed to the office where rulings appeals Paul the trial court’s suspended he him that dismissal, tive informed wrongful regard to his or other illicit sub- of alcohol for “the use contract, and invasion breach forth- information was No other stances.” claims. until November coming him informing a letter Paul received when B. Clarence’s Case. positive for canna- tested that his urine had Background. 1. Factual him that he The letter informed binoids. subsequent required pass two would has had seasonal Clarence tests, on November 30 and urinalysis one Nabors, working drilling rigs, since on with he before would other on December the beginning of 1977-78. Prior to the winter response In to return to work. be allowed complet- he period employment, his first of by his a letter drafted Paul hand delivered provid- employment application ed an Manager Employee Rela- attorney the of probationary period. for a ed Nabors, why he felt explaining tions for In became sub- November Clarence suspension were unfair. testing and the testing ject drug to the Nabors use and urinalysis the test on did not take Paul policy. persons a list of mid-November by requested Nabors. On 30 as November drug screenign posted scheduled for was at sent Paul a letter December Nabors rig. His name was on the list. Clarence’s discharged informing him he for re- was complete people required The listed were fusing 30 test. to take the November during period.1 their next R” the test “R & During period R” that next “R & Clarence Background. 2. Procedural the decided he would not submit to applied Following discharge, Paul for his and informed of his decision. Nabors compensation unemployment benefits with time to Nabors offered to allow Clarence Department of Labor the Alaska State refused, up” insisting “clean but Clarence (DOL). initially Paul benefits DOL denied test, thought pass he he could but period for of December refusing principle.” as “a matter of was through January ground 1983 on the point At that Nabors fired Clarence. urinalysis test that his refusal to take drug performed test that would have been 23.20.379(a). was misconduct under AS per- on Clarence was the same as that appealed January and on Paul that decision formed on Paul. hearing officer conclud- the DOL drug requirement ed that the unreasonable; re-test Background. 2. Procedural basis, hearing On that officer held that Paul’s dismissal was not Following discharge his Clarence also appealed for to the misconduct. Nabors sought unemployment compensation bene- Labor, Commissioner of who sustained the objected fits DOL. Nabors be- appeals decision of the tribunal. cause it believed his refusal to submit to drug test was misconduct

Paul initiated this action in under AS civil Novem- 23.20.379(a). wrongful hearing He After a factual ber 1983. asserted claims dismissal, contract, appeals, breach of invasion of two the Commissioner of Labor privacy, and defamation. found “Nabors Nabors moved has not shown that granted summary judgment for and was off-the-job there is connection between rig, 1. Clarence worked the same schedule as Paul— two weeks on the one week off. whispered performance.” tion in the on-the-job that “what is closet drug use and Thus, showing Nabors' proclaimed housetops.” no shall from the there was job misconduct. policy was related test (footnotes omitted). Discussing Id. Furthermore, adopted the Commissioner cases in precedential tort law few 1) no findings that evidence had factual had which courts afforded remedies linking off-duty been submitted publication of or unautho- letters accidents, 2) on-the-job use with photographs, rized Brandéis and Warren any drug use alleging Nabors was “priva- drew common called thread Clarence. princi- cy.” They defined this as the complaint filed in this case Clarence his ple personality.” of “inviolate Id. at 205. alleged of 1984. He invasion November legal grounds While the privacy, at common law and under the both 1890’s, tenuous in the somewhat Constitution, wrongful termination, logic of jurists American found the Bran- contract, and violation breach arguments compelling. déis and Warren’s implied faith and fair covenant first reporters Restatement of granted dealing. summary The trial court Torts included a tort entitled “Interference judgment in favor of Nabors on all Clar- Privacy.”2 By Professor Pros- opinion, findings No fact ence's claims. privacy, write “the ser could or conclusions law were entered. another, in one form or is declared to exist appeals summary award of Clarence overwhelming majority of the Amer- judgment on all counts. Prosser, Privacy, ican 48 Calif.L. courts.” 383, (1960). He 386 cited cases in Rev. II. DISCUSSION private parties had been held which liable Right Privacy. to A. The eavesdropping private in tort for conver- right privacy The to is a recent creation and by wiretapping sations means of micro- of inception law. The of American phones, peering into of or for the windows right generally to law credited review addition, at while homes. Id. 390. in Louis Brandéis published article 1890 mainly Brandéis and Warren were con- partner, and his law Samuel Warren. facts, publication private the of cerned with Warren, Right Privacy, Brandéis The & different Professor Prosser identified four (1890). 4 193 Brandéis and Harv.L.Rev. privacy: in- manifestations of the in a modern world Warren observed seclusion; pub- the upon plaintiff’s trusion increasing population density and ad- facts; embarrassing private lic of disclosure vancing technology, types the and number plaintiff the in a publicity places which easily of matters theretofore concealed the light; appropriation, false and for de- public purview rapidly decreas- from advantage, of pecuniary the fendant’s ing. They wrote: at plaintiff’s name likeness. Id 389. and meth- Recent inventions business categories form the Professor Prosser’s step ods call attention to next expanded of invasion tort framework protection of taken for the must be (Sec- privacy of found in the Restatement securing person, and the individual ond) of Torts.3 Judge right “to Cooley what calls the privacy Eventually right to attained photographs let alone.” Instantaneous recognition incorporated to be in sufficient newspaper enterprise and have invaded several state constitutions. See precincts of and do- the sacred Const, 1972); I, (adopted life; art. 22 Cal. § mestic and numerous mechanical de- Const, 1972); I, (adopted good predic- 1 Haw. make art. vices threaten to § (Second) (1939): 652A-I §§ 3. of Torts § See Torts 867 See Restatement Restatement of (1977). seriously person unreasonably who and A in not with another’s interest hav- interferes ing to others or his likeness his affairs known public is to the liable to other. exhibited 1128 Const, 1978); 1, protection provide (adopted privacy 6 Mont. Can ... art. §

Const, 1972). II, (adopted reason, art. 10 from which to a clue for base § policy? of the Unit-

Interpreting the Constitution States, Supreme Court regard ed the United States in this comes not doubt a Connecticut statute 1965 held that concept’s meagerness from but banning the of birth control devices use amplitude, protean capaci- its for it has a “repulsive couples married to the no- was and, ty things lawyers, all to all surrounding marriage privacy tions of defended, often defined and it lacks Connecticut, relationship.” Griswold v. readily apparent limitations its 1678, 479, 486, 1682, 381 U.S. 85 S.Ct. 14 privacy own.... is indeed the most [I]f 510, (1965). Supreme L.Ed.2d comprehensive rights, is it not then “specific guarantees Court wrote that weighty thing too vast and to invoke in Rights penumbras, the Bill of have formed specific legal settings specific guarantees from those emanations narrowly purposes? defined give life help them and substance. Various legal concept good A if will do us little guarantees privacy.” create zones of expands gas up it like a to fill the avail- at at at U.S. S.Ct. L.Ed.2d space. example justice: able Take the (citations omitted). Goldberg’s Justice stops, One cannot the line it draw where suggested concurrence starts, courts, law marital fundamental reason, comprehensive since such concept liberty. See 381 U.S. at philosophical concepts ought every- to be (Goldberg, 14 L.Ed.2d at 516 S.Ct. felt im- where but nowhere fixed our J., concurring). Since Griswold Su- perfect legal properly A institutions. le- preme found Court has the federal consti- gal concept principle must abe apply tutional to a num rule; rule, translates into a and the ber of other situations. See Cleveland Bd. turn, Fleur, 632, 640, applica- must translate into a v. La U.S. set of Educ. (1974) S.Ct. 39 L.Ed.2d tions. noBut such translations are feasi- (maternity regulations leave struck down impose ble unless we some definite con- “penalizing] pregnant the teacher for ceptual limits. child.”); Wade, deciding to bear Roe v. Gerety, Redefining Privacy, 12 Harv.C.R.- 113, 705, 410 U.S. 93 S.Ct. 35 L.Ed.2d 147 233, (1977) (footnotes C.L.L.Rev. 234 omit- (1973) (right privacy enough broad to ted). Gerety's But privacy, definition of encompass a woman’s decision whether or autonomy “an or control over the intima- pregnancy); not to her terminate Eisen personal 236, identity,” expan- cies id. at Baird, 438, 1029, stadt v. 405 U.S. 92 S.Ct. seems, sive as it is criticized Professor (1972) (regulation 31 L.Ed.2d 349 which “slightpng] equally Tribe those central contraceptives made less available to un outward-looking aspects of self that are couples invalidated). married than married expressed through demanding secrecy, less Hardwick, 186, But 478 see Bowers v. U.S. sanctuary through or seclusion than seek- 2841, (1986) (due 106 S.Ct. 92 L.Ed.2d 140 ing project identity one rather than an- process clause Fourteenth Amendment upon public Tribe, other the L. world.” any right does not confer fundamental on 15-1, American Constitutional Law § engage homosexuals to in acts of consensu (2d 1988). 1303 ed. sodomy). al In plaintiffs this case the seek to fit their Thus, concept privacy the has become cases legal within at least one of four pervasive legal thought. in modem But a right privacy frameworks in which the right, clear definition of this so fundamen- law, expression: has found constitutional liberty, tal to ordered has eluded both law, law, emerging contract tort and the legal courts and scholars. It is the funda- concept mental mixture of theories known as the nature of the that leads to great difficulty application. policy exception such One to the at-will doctrine of commentator has written: law. Law, 1-2, (2d at 2 Privacy Under the Alaska can Constitutional Right § The

B. 1988). vein, In the same we have writ- ed. Constitution. regard to Alaska’s ten constitutional amended The Alaska Constitution was privacy: primary purpose of right to “[T]he following to add section: 1972 provisions pro- is the these constitutional The of the Right Privacy. ‘personal privacy dignity tection recognized and shall people to against unwarranted intrusions infringed. legislature shall not be ” Rohde, State, Inc. v. State.’ &Woods implement this section. Labor, 138, (1977) 148 Dep’t 565 P.2d Const, I, 22. We observe art. § State, 502, (quoting v. 506 Weltz initially powerful this as a provision, I, (Alaska 1967)(referring to article section rights, of citizens’ constitutional statement guarantees unreasonable application. guidelines for its contains no seizures). State, In searches and Ravin appear legislature that the has Nor does it (Alaska 494, 1975), quoted P.2d provision; power apply exercised its Supreme Court’s statement that bring parties did to our attention free, ex- fundamental to be “implement sec- any statutes which this circumstances, cept very limited from tion.” governmental intrusions into unwanted argue has The Luedtkes that this court privacy. one’s question of clearly never answered 557, (quoting Stanley Georgia, 394 U.S. I, applies only article section whether 542, 22 L.Ed.2d S.Ct. governs state action or it also whether (1969)). urge this private action. The Luedtkes Richardet, Jaycees In United States governs pri- section 22 court to hold that (Alaska 1983), P.2d in 666 question This broached vate action. was State, 1976). expressly (Alaska court held that article sections P.2d 411 Allred v. apply 1 and 3 of the Alaska Constitution In Allred this court was faced with psychotherapist-pa- only plaintiff case question of whether to state action.4 privilege challenged membership found policies tient exists Alaska. We privilege in law rather Jaycees specifically the common excluded women priva- membership. than under constitutional full court observed cy: guarantees equality article section law,” suggesting only limit “under the apparent psychother-

Since it is that [the legal power. But the court held that sec apist] police agent, not a we do not trig- ban on would tion contains absolute perceive state action that guaran- without mention ger the constitutional sexual discrimination action, required also tees state or state .... The general principle. as court action Allred, P.2d 416. 554 the American constitutional wrote: “[T]he comports tra- Our dictum Allred restraining ory is constitutions are a that holding analysis that ditional constitutional of governmental force the abuse as check on the the constitution serves (quoting at 1013 power_” 666 P.2d all power government: of “That lawful 386, Fairbanks, City 471 P.2d Baker of people and power from the must be derives (Alaska 1970)) (emphasis original). 394 is preserve held check to their freedom aware, however, are of constitutional of Ameri- We the oldest and most central tenet Tribe, prohibit private action. The constitutionalism.” L. Ameri- clauses can Const, 1, obligations provides: persons corresponding have to all § 4. Alaska art. people and to the State. Rights. is dedi- Inherent This constitution Const, 1, provides: art. 3§ principles persons all have a cated to the Rights. person is be denied the life, Civil No to pursuit right liberty, of natural happiness, to right political enjoyment or be- of civil enjoyment of the rewards and the creed, sex, race, color, persons cause of national industry; are own that all their legislature implement origin. equal rights, shall equal opportuni- The to and entitled ties, law; protection section. under the and that Wrongful Amendment the United C. Thirteenth Termination. Constitution, prohibiting slavery, ap States LaSala, v. de 666 P.2d Mitford See, e.g., Clyatt plies private to action. 1000, (Alaska 1983), this court held States, United 197 U.S. 25 S.Ct. employment that at-will contracts in Alaska 429, 726, (1905). privacy 49 L.Ed. The implied good contain an covenant of faith clause of the California Constitution has In Knight v. American dealing. and fair apply private been construed to to action. Alert, Inc., Guard (Alaska & 714 P.2d 788 See, e.g., Feminist Chico Women’s Health 1986), acknowledged that violation of a Soc’y, Center v. Butte Medical Glenn public policy could constitute a breach of 1190, (E.D.Cal.1983) (wom F.Supp. 1202-03 implied covenant. We wrote: regarding an’s protected choice abortion against private interference under state [plaintiff’s] claim, concerning alleged The Kinsey right privacy); constitutional to public policy, termination in violation of Macur, Cal.App.3d Cal.Rptr. theory recovery is in accord with a (1980) (letters regarding defen accepted many states. We have never behavior, dant’s some of which contained public rejected policy theory. In- personal facts, stated a cause of action for deed, it seems policy ap- that the tortious invasions of constitutional to proach largely encompassed is within the However, privacy). history surround implied good covenant of faith and fair ing adoption privacy the 1972 of the amend dealing accepted which we in Mitford. ment of California voters evinces a Knight, (citations omitted). 714 P.2d at 792 clear applies pri intent that the clause to We conclude public policy there is a governmental vate as as action. See well supporting protection employee pri- Davis, White v. 13 Cal.3d 120 Cal. vacy. policy Violation of that by an em- Rptr. 94, 105-106, 233-34 ployer may rise to the level of a breach of (1975). promoter’s The literature contains implied good covenant of faith and fair frequent references to intrusive activities dealing. However, competing public “government and business.” See id. concern for safety present in the parties in the case at bar have case at bar leads us to hold that Nabors' produce failed to evidence that Alaska’s actions did not implied breach the covenant. constitutional to was intended operate action, private a bar to here 1. The Employ- Luetdkes Were At-Will drug testing program. Nabors’ Absent a ees. history demonstrating that the amendment First, we address the Luedtkes’ proscribe private action, was intended to arguments they were not at-will em proscription action in the lan ployees, guage itself, but rather that could be fired amendment we decline only extend constitutional cause.5 key difference private parties. the actions of types between these two regard, argues (1966), In this Clarence that the deci- Supreme L.Ed.2d Court sion the Commissioner of Labor that he was wrote: collaterally not fired for misconduct should act agency acting When an administrative in a estop claiming Nabors from Clarence was judicial capacity disputed and resolves issues just disagree. fired for cause. We properly parties fact before it which the Supreme Both this court and the Court have adequate opportunity have litigate, had using discussed standards for administrative ad apply judicata courts have not hesitated to res judications estoppel. as collateral In DeNardo repose. to enforce State, 453, (Alaska 1987), cert. This case fails the tests enunciated both — denied, U.S. -, 108 S.Ct. 98 L.Ed.2d courts because the issue of Clarence’s miscon- (1987), we wrote: "it is settled that res duct is different than the issue of whether Na- judicata precludes relitigation by par the same discharge wrongful. bors’ of Clarence was The ties, only pro not of claims raised in the first adjudication before the commissioner did not ceeding, but also of those relevant claims that issues, involve the same nor is the commission- could have been raised.” empowered culpability er to determine the In United States v. Utah Construction & Min- Nabors’ conduct. AS 23.20.340. Co., ing 384 U.S. 86 S.Ct. given a need be create a is for tion employment contract whether for a definite term. contract length Employees of time. determinable fired for can be hired on an at-will basis distinguishable The Luedtkes’ cases are implied not violate the any reason that does in Eales. plaintiff from that of the dealing.6 good fair faith and covenant of benefits, such as medical Luedtkes received However, specific for employees hired a pension participation and in a or insurance discharged before the may not be term sharing profit plan, which continued as good except of the term expiration However, long they employed.7 were any had of the Luedtkes cause. Neither gave never an indication of a defi- Nabors term, so agreements specified for a formal employment, duration for their nor a nite term, existed, im- if it must any such be endpoint In- employment. to their definite plied. stead, merely provided benefits employer/employee with modern consistent Valley v. Tanana Medical-Sur Eales relations. Inc., Group, gical (Alaska 663 P.2d 958 1983), employer an held that we where Policy Supporting 2. There Is a Public until promised employment that would last Privacy. Employee age, employee’s retirement and determinable, next age readily question contract address whether was protecting employ- exists an implied. public policy be for a definite duration would “private” in- certain no considera- ee’s withhold also held that additional general employ- or somethin’ like of the at-will two weeks down line 6. For discussion Crook, like If the line somethin’ that. Employment weeks down they in Alaska see ment doctrine promot- you position one and took from Applica- and Will: Rule" Its The "American higher, you Alaska, (1985). I can’t understand ed somethin’ 2 Alaska L.Rev. 23 tion they’d somebody why do that who was weeks, go gonna couple be let kind Clarence testified: implication employ- be that there would anyone any Okay. promise Q Did make you. ment there you? job security to Paul testified: like, Well, things you A there were little function, rig, Working perform a A know, pension plans, on a— references hand, you you they you’re a tell can— know, you on a loan for a house or somethin’ work, got night you a home here: at after like There was—it was—it was under- that. formal, table, nothing you around the dinner that, stood I was—I infer I would would know, but.... that, that, steady get yes, you were a that from you’re thinking any particu- Q one So (sic), personnel you permanent. were lar instance? So, you pension Q the fact that had a A No. (sic) would a refer- the fact specific period any Q men- Was time there you you ence loan understood that on a house you I had said a sentence to the tioned? think permanently employed, would is that effect, you’ve got anyWas time a home here. right? period mentioned? A Yes. No. A any Q there other reasons that would Were Objection. Question been Mr. has Colver: you permanently you em- make think and answered. asked Q ployed? No, period? time no know, sharing plan, you A Profit stock— (Witness negatively) A nods things program, purchase like that. stock ambiguous infor- are These “statements” any Q ever But no one made statements employment specific No mal. duration you you you were would lead to think mentioned. employed, permanently no one ever had pleads had a that because he Clarence also getting conversations is what I'm at. probationary period started Na- when he now, say yes I I can’t A don’t recall bors, probationary period should end of that, I'd that. no on have to think about imply beginning for a defi- you nothing Q now comes But rejected implication been term. has nite This can’t— Brewing to mind as to.... Rupinsky Miller See other courts. No, just say, anything (W.D.Pa.1986); Co., I’d A I like F.Supp. 1186-87 would— know, Inc., interpretations, you F.Supp. Hospital, ref- Crumley would be like erences, v. Memorial mentioned, things promotions. (E.D.Tenn.1979), aff’d, I’ve I 647 F.2d 164 536-37 (6th Cir.1981). reject purposes of get pro- for the would a We it don’t think an individual go plannin’ case at bar. on lettin’ ’em motion if employer. participate employer lobbying believe fused to in from his formation effort). exist, in and is evidenced policy such does a law, statutes and constitution

the common strong sup- clearly Alaska law evidences determining In the existence of this state. port public employee for the interest in Supreme policy, the Illinois Court’s of this First, privacy. support state statutes v. International decision Palmateer policy private that there are of em- sectors Harvester, 52 Ill.Dec. 85 Ill.2d ployee’s subject scrutiny lives not to direct (1981),is relevant. Palmateer N.E.2d 876 employers. example, employ- their For discharge of an involved may require employees ers to take authori informing local law-enforcement polygraph employ- tests as a condition of illegal potentially activities ties addition, about ment. AS 23.10.037. In AS 18.- The court held that this of a 80.200(a) co-worker. provides: public policy sup discharge violated It is determined and declared as a mat- pre in crime porting citizen involvement legislative finding ter of that discrimina- identifying public policy, this vention. In tion inhabitant the state rely spe court did not on a the Palmateer race, color, religion, because of national Rather, statutory prohibition. it cific sex, origin, age, status, changes marital rights, respon looked to citizen duties and status, pregnancy, parent- marital sibilities. The court wrote: public hood is a matter of concern and precise There is no definition of the that this only discrimination not threat- [public general, policy]. rights term it can privileges ens the and in- public policy concerns be said what habitants the state but also menaces just and and what affects the the institutions of the state and threat- collectively. order, health, citizens of the It is peace, State ens safety gen- found in the State’s constitution and eral welfare of the state and its inhab- and, silent, they are statutes when its itants.

judicial Although there decisions. is no policy implemented This by AS 18.80.- precise dividing line demarcation mat- 220, which employers makes it unlawful for public subject policies ters that are the inquire topics into such in connection purely personal, survey from matters prospective employment. This statute involving cases other States retali- demonstrates that in Alaska certain sub discharges atory shows that a matter jects placed are outside the consideration of must strike at the heart of a citizen’s employers in their employ relations with duties, rights, responsibilities social protections ees. The of AS 18.80.220 are before the tort will be allowed. extensive. This statute has been construed

to be broader than federal anti-discrimina specific No constitutional or tion statutory Simpson law. See State provision requires a citizen to take an Comm’n Rights, F.Supp. Human part ferreting (D.Alaska 1976), prose- active out and aff'd, 608 F.2d crime, (9th public Cir.1980); cution policy but Employees never- Hotel Lo Thomas, crime-fighters. theless favors citizen cal 879 v. (Alaska 1976); Loomis Electric Protec 878-79, (citations

421 N.E.2d at omit- tion, Inc. v. Schaefer, 549 P.2d ted). Thus, body we look to the entire (Alaska 1976). We believe it evidences the law in the State of Alaska for evidence of legislature’s intent liberally protect em rights, citizen responsibilities, duties and ployee rights. public policy determine the regard employee privacy. Second, See also noted, Novosel v. Na- previously Alaska’s Co., (3d tionwide Ins. 721 F.2d constitution contains Cir.1983)(court held, derived from United States clause. supra, While we have Pennsylvania speech constitutions’ free this proscribe clause does not guarantees public policy prohibited issue, action at it can be viewed employer firing employee who re- court as evidence of policy support- protects of Alaska. The constitution ing privacy. See Novosel v. Nationwide intrusion, (finding against governmental 900 evidence statutes Co., 721 F.2d at Ins. intrusion, speech in free clauses of public policy protect against employer and the of Pennsylvania and States Constitu protects against United common law intrusions tions). that “a court wrote result, The Palmateer persons. As a is private other there of a citi strike at the heart matter must support to sufficient evidence conclu- duties, rights, responsibili zen’s social public policy pro- sion there exists a policy. public to termed a Palma ties” tecting spheres of conduct into Certainly teer, 421 N.E.2d 878-79. may not employers intrude. which incorporated the citizenry has fact that the question employer then becomes whether right privacy into the Alaska Constitu monitoring employee drug of use outside strongly supports tion contention prohibited place such a the work is intru- right of a citi at the heart “strikers] sion. rights.” zen’s social Third, exists a common law there Policy Supporting 3. The Public Em- (Second) of privacy. The Restatement Privacy ployee Must Be Balanced provides: Torts 652B § Against Policy Supporting the Public upon One who

Intrusion Seclusion Safety. Health and intrudes, intentionally physically or oth- inexpensive Since the recent advent of erwise, or of upon the solitude seclusion drugs, litigation urine tests illicit most his private affairs con- another regarding of tests the use these cerns, liability subject is other govern- has concerned employment context privacy, of if the intru- his invasion testing has employees. ment been to a highly sion offensive rea- would proscriptions of challenged under the feder- person. sonable search and seizure al fourth amendment expressly have not considered While we body regulates only gov- law. This of law Alaska, application of this tort in and as a result of activity, ernmental is Siggel recognized existence. have its See bar, to the case at limited value (Alaska 1987); State, 62 v. kow However, private activity.8 involves (Alas Glass, 583 P.2d 880-81 State v. regarding reasoning of the federal courts 1978). ka testing urine can illu- the intrusiveness of court’s of the ex- Thus, protected minate this consideration the citizens’ to be personal is tent violated into their to which unwarranted intrusions recognized has in the these tests.9 private been law lives employees); Amalgamated superior Recently of corrections a California court addressed ment 8. Union, testing college question of 1277 v. Sunline Transit of athletes Transit Local (transit (C.D.Cal.1987) Collegiate Agency, F.Supp. 663 1560 Athletic Associa- in Hill v. National tion, workers); 1988). (Cal.Super. August Felici As noted bus drivers maintenance Cleveland, (N.D. F.Supp. privacy applies City 661 578 supra, ano v. Ohio 1987) California’s of cadets); (police academy clearly is American both action. Hill Weinberger, Employees Gov't v. 651 grounded application of Fed’n Califor- broad of (S.D.Ga.1986) Therefore, Hill, F.Supp. (department Op. 726 of de right. Slip nia’s See at 24. holding action, employees Hill, of ''crit fense civilian involving cases state is limit- like City Chattanooga, jobs); ical’’ v. 647 Lowom analyzing the case at bar. ed value (E.D.Tenn.1986) firefighters); (city F.Supp. 875 Capua City Plainfield, F.Supp. v. analyze generally drug testing These cases (D.N.J.1986) firefighters). (city requirements in the context of fourth amend However, gener law. The courts have ment search and seizure some courts held individ- taking necessary. ally suspicion These that the of urine is a seizure. ualized is not courts hold result, expectation many generally employee’s have hold that the As a courts held that individu necessary type suspicion urinalysis before lessened because alized may words, employment. because of the In other be conducted. See Policemen's Benevolent held, job Township category Jersey, the search is "reasonable." New Local Ass'n (D.C.Cir. McKenzie, (D.N.J.1987) F.Supp. Washington, 672 See Jones F.2d attendant); officers); 1987) (school Treasury Taylor O’Grady, bus National (township police Raab, (5th (N.D.Ill.1987) (county depart- Employees Union v. Von F.2d 170 F.Supp. 1422 Capua City Plainfield, appeal), opinion appeal, on 643 816 170 F.2d of — (D.N.J.1986), firefighters F.Supp. city U.S. -, 1507 granted, cert. 108 S.Ct. enjoin urinalysis sued to random tests con- (1988),observing 232 99 L.Ed.2d that there department. The ducted the fire court is little difference the between intrusive wrote: testing urine ness of and the intrusiveness testing the Urine involves one of most of other affronts to regularly ac functions, a of function tradition- cepted by today. individuals He wrote: indeed, ally performed private, in and precise privacy The interest asserted is usually prohibited public. pro- in The elusive, are, plaintiffs best, and the posed test, order to in ensure its reliabili- just inexact as that what inter- ty, requires presence the of another Finding objectively est is. an reasonable specimen the is created and fre- when urine, expectation of privacy in a waste quently information one’s reveals about product, contains inherent contradictions. drugs. to the If health unrelated use of The court such district found a of positive, may the it tests are affect one’s but, privacy, fairness, plaintiffs in do not result in status even Rather, appears rest there. it from the prosecution. criminal plaintiffs’ the brief that it is manner of appalled spectre We would at the of taking samples the is said to that invade police employees during spying privacy, garments because outer reporting their and then their free time might a sample false be hidden employers. Drug activities to their test- person must removed and a of the ing surveillance, is of a form albeit a same sex a remains outside stall while Nonetheless, technological it one. re- Yet, applicant apart urinates. ports person's off-duty on a activities partial disrobing (apparently not in- just surely as someone had been dependently challenged) persons using present watching. George It is Or- public toilet experience facilities a similar “Big Society well’s Brother” come life. privacy. lack of must then be Id. at 1511. While there is certain a perceived indignity a in the pro- whole statement, hyperbole amount of in this it cess, perceived personal affront potential portray does invasion that identity by presence in the same the technology urinalysis possi- makes room of engaging another while in a potential ble. It is this private body function. guard. law must Not all urine courts view skepticism, believing with such suggested It is the testing pro- justified intrusion in contemporary society. gram generalized rests on a lack of trust Judge Higginbotham not on developed suspicion Patrick assumed a of an Treasury stance National cynical applicant. more Necessarily individual there is Employees Raab, Union Von implication plain applicant 808 F.2d (5th Cir.1987) 1057 (denying stay pending part group that, given the demands — Cir.) U.S. -, Co., granted, (8th cert. Cir.1986) (rail 108 S.Ct. N.R.R. 802 F.2d 1016 (1988) (customs employ 99 employees L.Ed.2d 232 service road tested after incident which enforcement, drug carry error, ees who work in fire could have resulted from human or after arms, information); furlough); have access to classified Amalgamated extended 241 Division Hunter, (8th (7th McDonell v. Suscy, Cir.), 809 F.2d 1302 Cir. Transit Union v. 538 F.2d 1264 1987) (state denied, department employ of corrections cert. 429 U.S. 97 S.Ct. 50 ees); Dole, (1976) (bus Employees American Fed’n Gov't following 632 L.Ed.2d drivers seri (D.D.C.1987) F.Supp. accident); White, (department F.Supp. ous Smith v. transportation employees (E.D.Tenn.1987) (nuclear power plant concerned with employ health, safety, security using drugs national and law en ees who were observed outside forcement). work); Napper, F.Supp. Everett v. question (N.D.Ga.1986), Some courts have addressed the pertinent part, 833 F.2d aff’d urinalysis (11th Cir.1987) tests conducted after (firefighter conduct has identified as brought specific employee dealer); to the attention City customer Marietta, narcotics Allen v. superiors. generally uphold (N.D.Ga.1985) (electri These courts F.Supp.

use of company the tests. See employees Brotherhood Mainte cal been who had observed of Burlington WayEmployees, Lodge informer). nance marijuana smoking 16 v. However, recognized also that to be truth- be trusted job, cannot activity right” “fundamental was limited to difficulty is use. ful about in the home. We acknowl- which remained distrust, equally accu- just such leaves his edged that when an individual care, every background rate, is behind others, competing and interacts with home check; security indeed every check and rights collectively and as individu- of others gained in tests of urine information precedence: may take als from that disclosed not different records, home is a fundamental Privacy for which consent medical applications right, under the federal and Alaska part a both is routine examine by do not mean government posts. constitutions. We many sensitive anything any- at person may a do short, testing and given practice the long activity place time as as the takes required many for so background checks There are two person’s a home. any expecta- within government jobs, whether on this facet of the applicants important limitations job these privacy tions First, agree right privacy. we to objectively reasonable is dubious States, the Supreme the Court of United cops the one Certainly, to ride with best. strictly Stanley limited the which has ought expect inquiry, and the sur- to purely pri- guarantee possession means, into he is a robber. est whether vate, in noncommercial use the home. J., concurring). (Higginbotham, Id. at 1061 secondly, right think this must And we observes, society Higginbotham Judge As it interferes in a serious man- yield when into an individu- often tolerates intrusions health, safety, rights ner the and similar to privacy under circumstances al’s public the privileges of others or with urinalysis. in We find this present those No one has an absolute welfare. then, the appears, that it is persuasive. It things privacy in the of his own home do conducted, and not urinalysis is reason the affect himself or others ad- which will test, that deserves the conduct Indeed, aspect private of a versely. one analysis. is, private, that that it matter is that it is hand, discussed, one This court on the beyond adversely persons affect does not and, society protects privacy, the reasons actor, of their and hence is none the hand, society the reasons on the other does affect the When a matter business. personal privacy in rightfully intrudes on indirectly, it loses its public, directly or (Alaska 1975). State, 537 P.2d 494 Ravin v. character, can and wholly issue of whether the addressed the Ravin appropriate public yield made to when marijuana in prohibit the use of state could need is demonstrated. not. held that it could the home. We Id. at 504. privacy “the amend- observed that analogous analysis is to the The Ravin to the Alaska Constitution cannot be ment in followed cases analysis in- that should be possession make the read so as to policy exception to construing public the fundamental gestion marijuana itself a is, Rather, That “recog- at-will doctrine. right.” Id. at 502. activity every per- sphere is of the home as there distinctive nature nized the scrutiny by oth- life that is closed privacy re- son’s place where the individual’s sphere of that are ers.10 The boundaries protection.” Id. at 503. special ceives privacy." S.E.2d specifically interest in jurisdictions an individual’s other have 10. Courts in Co., protection Supply public policy supporting see Larsen v. Motor found a at 117. But Hugh employee privacy. (discharge In Cordle v. General (App.1977) P.2d 907 Ariz. (W.Va.1984), Corp., S.E.2d 111 Mercer sign employees upheld refused where at-will Virginia Supreme an em- Court held that West psychological stress eval- submit to a consent to employees poly- ployer’s take a demand that test). uation recog- publicly graph violated that state's test Co., Bristol-Myers Mass. In Cort v. privacy in a cause and resulted nized interest (1982), the Massachusetts Su- 431 N.E.2d discharge. wrongful court of action for em- preme considered whether Judicial Court public policy against such stated: ”[T]he questions certain ployees refuse to answer could upon recognition grounded in this State extremely important 14. It is balancing person’s determined policies, performance such free against other driller be health, privileges safety, rights safety “the in order to insure the his tasks Ravin, P.2d at 504. of others.” protection of the oil field itself and oil resource contained within it. or not Luedtkes claim that whether marijuana is information within they use supporting public policy Where sphere into which their em- protected off-duty Luedtkes activities Nabors, may intrude.11 We dis- ployer, public policy supporting conflicts with the observed, previously agree. As we have safety of protection of the health and impair person’s ability to marijuana can workers, and even the Luedtkes other normally: function themselves, safety concerns the health effects physiological The short-term result, paramount. are As a undisputed. An immediate relatively are determining justified in whether slight pulse, increase in the decrease possibly impaired job Luedtkes are salivation, slight reddening of the and a usage job. by drug off the usually noted. There is also eyes are observe, however, employ- that the We impairment psychomotor control. prerogative does limitations. er’s have Ravin, 537 P.2d at 506. First, drug the test must be conducted at rig oil also on an We observe work reasonably contemporaneous a time dangerous. have deter- very can be employee’s employer’s time. The the work involving serious in- mined numerous cases monitoring drug may interest is in use that resulting from accidents on jury or death directly employee performance. The addition, affect in drilling rigs.12 In Paul’s oil in employer’s interest is not the broader expressly considered case the trial court discovering control- dangers rigs. police on oil It found: function the work ling drugs general in the use of illicit socie- extremely important that the 13. It is case, ty. In the context of this Nabors performance driller free the could tested the Luedtkes immediate- have to insure the immedi- his tasks order prior departure for the personnel ly on to their North safety ate of the other the particular rig. Slope, immediately upon or their return drill employment questionnaire. complain The court 11. Paul and Clarence also on an Nabors, test, type by used "emit” is wrote: of test sought questionnaire to obtain infor- unreliable. We decline to address this issue for [I]f following that constituted an reasons: Paul does not contest the mation in circumstances "unreasonable, accuracy positive per- substantial or serious interfer- of the result in the test employee's] privacy’ knowledge, formed without his and there is no ence with viola- [the by principles expressed either tion of the in G.L.C. evidence that the refusal Luedtke to IB, discharge employee submit to further was influenced con- of an for failure § accuracy testing proce- provide cern over the of Nabors’ such information could contravene imposition dure. policy and warrant liability employer discharge. for the short, Bristol-Myers See, Stiles, e.g., Safety Appliances if had no to ask Mine (Alaska 1988) questions plaintiffs (plaintiff per- the answer, that the declined to P.2d 288 manent, suffered Bristol-Myers debilitating injury be liable for could dis- when metal cover head); charging plaintiffs Corp. Alvey, for their failure to an- fell on Exxon 1984) (Alaska questions. (plaintiff suffered substantial swer those (footnote omitted). paralysis legs injuries and other when he fell Id. 431 N.E.2d at 912 asked, site); eventually question drilling Drilling Co. v. court held that the in hole at Parker "AIMS,” O'Neill, (Alaska 1983) (employee 674 P.2d 770 headed was not so intrusive to result wrongful discharge. platform standing Id. he was in a at 913-14. killed when Service, approximately twenty platform feet after In Slohoda v. United Parcel 193 N.J. fell (1984), Jersey "traveling weighing Super. 475 A.2d 618 a New was struck tons); block” several Tenders, Co., Drilling employee discharged Rig court held as a Inc. v. Santa Fe that an (Alaska 1975) (employee fell to his result of his marital status could maintain a 536 P.2d 114 using employer tender cause of action his for inva death when crane he was to unload drilling rig public poli pulled sion of was activity off as a result of ice contravention tender). cy. around the daily intrusion into one’s affairs Slope the test could stant when the North persons.” Siggelkow all drugs enjoyed detecting reasonably certain of 1987). State, (Alaska As 731 P.2d at Further, given Nabors’ there. consumed discussed, is delineated previously that law community, Na- rig the oil control need to (Second) of Torts in the Restatement tested Luedtkes could have bors 652B, upon entitled Intrusion Seclusion.15 Slope. § on the North time provides: intention- That section “One who Second, notice employee must receive an upon or se- ally intrudes ... the solitude drug testing program. adoption of a of another or his affairs or clusion test, employer an introduces requiring a By concerns, if the subject liability ... An employment.13 term of additional an highly would be offensive to a intrusion should have notice of the addi- person.” reasonable it, he re- may term so that contest tional true, con It is as the Luedtkes quit, negotiate accept it and seek to fuse tend, publication of the facts obtained conditions, prepare the test so its necessary. Instead, liability is is not thereby not fail it and suffer that he will Diete for the offensive intrusion. See sanctions.14 Time, Inc., 245, 247-48 449 F.2d mann v. apply These considerations do Cir.1971). However, (9th con courts have regard Paul and to the tests both with' require ei strued “offensive intrusion” given refused to Paul was Clarence take. intrusion, unreasonable manner of ther an take of the future He did not notice tests. purpose. intrusion for unwarranted result, 30 test. As a November Inc., Sys., v. Northwestern Tel. See Sistok discharging Paul. Clar justified (1980) 189 Mont. P.2d opportunity notice and ence had (surreptitious recording telephone con test at reasonable time. schedule his unreasonable); may be Froelich versations However, As he refused to take test. 482, Werbin, 461, 485 219 Kan. 548 P.2d v. result, in dis justified was (hair (1976) sample hospital taken from discharge vio charging Clarence. Neither privacy); Senogles trash not invasion good implied faith lated the covenant Co., 217 Kan. Security Ins. Life Benefit dealing. fair 1358, (1975) (trans 438, P.2d 1362-63 536 question suspension whether Paul’s life plaintiff’s records to mission of medical the covenant of faith breached company justified); McLain v. insurance dealing is for trier of fact. See fair 549, Corp., 533 P.2d 271 Or. Boise Cascade 1150, Akers, 753 P.2d Alaska ARCO (surveillance 343, (1975) of workers’ 345-46 remand, (Alaska 1988). On the trial 1155 filming claimant his activi compensation by the cove- court should determine whether give rise to his home does not ties outside breached, taking has additional nant been claim). privacy has failed invasion Paul necessary. if evidence reason either that manner or to show testing his urine unreasonable. for was Right Privacy Claims. Law D. Common gave During physical, voluntarily his he testing. sample purpose for the recognize that urine We law] [common “[t]he Therefore, urine complain he cannot that free from and con- right to be harassment Note, Drug Testing agreement Public and Private employment 14. See that where the 13.Note at-will, 133, Alaska, continuing to a modifica- 138- Employees work after 5 L.Rev. is tion of that Alaska agreement (author sufficient considera- (1988) suggests decisions 39 support See the modification. tion grounds possible for point for notice Yartzoff to need 651, Co., 576 Pub. 281 Or. Democrat-Herald termination). Corbin, 356, (1978); on 1A A. Corbin P.2d 359 (1963). is no at 122 Thus there § Contracts common law There are four branches of the argument support the Luedtkes’ However, only the privacy. supra. See not be modified contracts could upon is contended Seclusion branch Intrusion drug testing. question before provide for this violated in the Luedtkes to have been are is whether modifications the court those case. reasonable. (Alaska 1987) Compare (quoting Malvo v. J.C. Pen “highly offensive.” (Alaska 1973)). Co., Dietemann, (plaintiff ney F.2d did 512 P.2d filmed) Sistok, being find he do not manifest unreasonableness not know was We $25,000 (recording of conversation Paul for a 615 P.2d at 178 in the award plaintiff). only four-day legal Paul can on the unknown to trial based uncertain was complain purpose of the urine interest about the ories. Nor do we find test, is, drug usage. to detect How- nature of the lawsuit overcome Paul’s ever, held, regaining employ supra, have that Nabors interest his we employees test its was entitled to ment. See Southeast Alaska Conserva usage. result, Council, State, not As a the intrusion was tion Inc. v. 665 P.2d (Alaska 1983). complains additionally unwarranted. Paul he not his urine would be was aware addition, appeal complains In Paul regard drug usage. tested for we attorney's that the fees affidavit was any of Paul not aware of observe that was ser- supported an itemized statement of being on his performed the tests urine sam- courts vices rendered. Trial should base ple. he the ramifications of Nor did know their on itemized statements. awards See those tests. But he did know whatev- n. McGarvey, Moses v. reported er the results would (Alaska 1980). However, we will not Therefore, complaint to Nabors. his about when, overturn a fee award for this reason particular test is merit. con- without case, as in Paul’s no itemized statement clude that for these reasons Paul could not complaining party in requested maintain an action for invasion of its motion for reconsideration of the fee regard urinalysis to the conducted Oc- award. tober 19. urinalyses As to the Paul and Clarence CONCLUSION IV. take, hold that no cause of refused above, expressed For the reasons the de- action for invasion of arises where of the trial cision court the case of Paul taking prevented the intrusion is Drilling, M. Luedtke v. Nabors Alaska Co., place. See Gretencord v. Ford Motor part is AFFIRMED in and RE- Inc. (D.Kan.1982) (no F.Supp. in- part. VERSED The case is REMAND- place trusion took refused where ED to the trial court to determine whether vehicle.) security guards allow search implied Nabors breached the covenant good dealing regard faith and fair in Attorney’s E. Fees. suspension. attorney’s Paul’s fee arguments The Luedtkes’ final are award must also be reconsidered awarding in that the trial court erred attor court, disposition. trial consistent with this ney’s fees to Nabors in cases. Clar both above, expressed For the reasons the de- ence’s contains a statement of this brief cision of the trial court case of argument. issue but no It is therefore Clarence Luedtke v. G. Nabors Alaska Wetzler, waived. 570 P.2d Wetzler Drilling, Inc. AFFIRMED. (Alaska 1977). argues 742 n. 2 that Paul given short, the fees were excessive MATTHEWS, C.J., concurs. non-jury trial and the nature of the MATTHEWS, Justice, questions presented. Chief concurring. grants Civil Rule 82 the trial court dis attorney’s agree majority’s cretion its fees Alas I conclusion award. previously justified discharging ka R.Civ.P. 82. As we have that Nabors was noted, agree a fee I appellants. we will not reverse award both Further that on unless trial court has abused its discre remand the trial court should determine award, tion to the extent is “mani whether Nabors breached the covenant of festly good dealing Steenmeyer Corp. by suspending unreasonable.” faith and fair Mortenson-Neal, positive Luedtke he tested Paul because duty using marijuana during twenty-eight day marijuana likely off are more to use period, notifying by marijuana first him duty leave without or be influenced than against company policy for em- Moreover, that it was those who do not use it at all. ployees marijuana any to use at time. productivity, considerations of lost absen- teeism, and medical insurance rates may The critical element Paul Luedtke’s justify employment a total abstinence crite- suspension alleged claim is the failure of use, Drug including alcohol, rion. has been notify employees its employers estimated to cost between $60 expected using mari- refrain per year.2 billion and billion I $100 Thus during juana their weeks on leave. It could, private employer believe that a find, jury might seems to me that a if there notice, proper impose as a condition of em- failure, such a it amounted to ployment requirement employees that its conduct which was so unfair as to be a marijuana not use any at time. good violation of the covenant faith and not, however, dealing. I fair do share the employer may impose

view that an as a employment requirement

condition of employees

that its refrain from all use

marijuana at all times.1 private sector,

In the the establishment traditionally criteria has employers, except been left to as to such MORRISON, Appellant, Robert relatively important categories narrow but race, religion, gender, age. AS So, if employer 18.80.220. wants LOGGING, AFOGNAK INC. impose employ- condition continued National Insurance Assurance employees ment that none of its use mari- Company, Appellees. time, juana any legal I imped- can see no No. S-2338. iment, apart from the possibility that ad- may vance notice of the condition Supreme be re- Court of Alaska. quired. Feb. may It be that the covenant of faith dealing requires and fair also em-

ployment relationship criterion have some legitimate employer

to a If a concern.

relationship required, easily it would be employer poli-

met the case of an whose

cy marijuana it is to hire no one used who altering

or other consciousness substances. concern,

Safety prime today’s major- is a

ity opinion makes clear. Those who use following language majority’s opin- discovering controlling

1. The in the tion of the use of implies employer may impose drugs ion that an general society. illicit In the context requirement: case, total abstinence of this Nabors could have tested the immediately departure prior Luedtkes result, to their justified determining As a Nabors is Slope, immediately upon for the North possibly impaired whether the Luedtkes are job by usage Slope their return drug job. from the North when the off the however, observe, employer’s reasonably detecting that the test could be certain prerogative drugs does limitations. have- consumed there. First, test must be conducted at a Note, Drug Testing Em- reasonably contemporaneous Public and Private time with the Alaska, ployees in employees’ employer’s Alaska L.Rev. work time. The inter- (1988). survey monitoring drug puts A may est is in recent at more use that direct- the cost Times, ly year. performance. employ- per $100 affect than billion N.Y. Dec. (Business Section), police er’s interest is not in the broader func- col. 1.

Case Details

Case Name: Luedtke v. Nabors Alaska Drilling, Inc.

Court Name: Alaska Supreme Court

Date Published: Feb 17, 1989

Citation: 768 P.2d 1123

Docket Number: S-2074, S-2127

Court Abbreviation: Alaska