Twigg v. Hercules Corporation
406 S.E.2d 52
W. Va.
1991
Check Treatment

*1 TWIGG, P. Jr. Edward CORPORATION.

HERCULES

No. 19501. Appeals

Supreme Court Virginia.

July

Dissenting Opinion of Justice

Brotherton June Webb, Webb, Staggers H.

David Bastress, Jr., Mor- Keyser and Robert M. gantown, Twigg. P. for Edward Anthony George, Q. Gage and L. Charles Charleston, Kelly, for Hercules Jackson & Corp.

WORKMAN, Justice: to answer a case is before the Court This by the United question posed certified for the Northern Dis- District Court States Virginia. question certi- trict of West court is as follows: fied the district employee for discharge of an Can the part urinalysis as refusing to submit violate a substan Virginia public policy of West damages under employer to subject the Bank in Fairm v. First National mont, 116,] W.Va. [162 673,] W.Va. [169 employer has no when the *2 drug usage testing policy; individualized he did not refuse drug prohibited by and the test is not testing to submit to the on either of these state statute? two occasions. arguments After a review of the of the 29, 1987, July plaintiff’s supervisor On parties in this matter and all the matters of again informed him that he had once been record submitted before this we are urinalysis drug selected for a test to be partial agreement with the district day. Twigg administered on that once court’s answer. again supervisors informed his that he was According to the facts submitted before opposed drug testing. to the The defen- court, plaintiff, the district Edward P. management plaintiff dant’s advised that if Twigg, 1978, February, was hired in as a test, drug he did not submit to the he Corporation draftsman for Hercules d/b/a employment would be terminated from his (hereinafter

Allegany Laboratory Ballistics corporation. plaintiff with the The did re- Allegany) County, referred to as in Mineral urinalysis fuse to submit to the and conse- Virginia. Allegany West was in the busi- quently discharged by was Hercules on manufacturing highly explosive ness of 29, July dangerous fuels. question discharge The of whether During employment Allegany, his at refusing for submit manda- Twigg performed job satisfactorily his tory drug testing random violates substan- which is indicated in the record the fact tial in West is one of increases, pay that he received numerous impression plain- first for this The Court. positive promotions. evaluations and The defendant, argues tiff Hercules position Allegany which he last held at Corporation, violated a substantial planner, required that of material policy by discharging plaintiff for his him to assist the maintenance of the drug refusal to submit to random supplies testing stock of needed to conduct the defendant’s business. It is unclear from defendant had no individualized drug the record usage by plaintiff2 before this Court whether Twigg’s actually brought duties him into and therefore any justifi- lacked sufficient physical explo- or direct contact with the defendant, cation testing. on potentially dangerous sive fuels or other hand, the other contends that there is no ingredients.1 prohibits mandatory drug random December, 1984, imple- the defendant testing private sector policy mandatory, mented a random (1) because there legislation prohibit- is no employees Allegany. for its ing (2) testing; pro- constitutional February On promul- Hercules scriptions do not sector

gated its revised for and alco- conduct; common principles law testing. hol This revised became cannot public poli- constitute a “substantial 1, 1986, March During effective on cy” “fairly where the issues are debatable plaintiff the defendant twice selected the or controversial” and thus better left to for random with each and, legislature;3 event, providing negative Twigg any result. com- the com- superiors Allegany municated to his his mon law prohibit objections mandatory, drug testing. random sticks,” containing "ignitor 1.While the facts explosive submitted in the certification Twigg's bring powder ignitors. order reflect that work did not which went into physical him into or direct contact with the ingredients, Twigg’s testimony fuels or their prepared by 2. The certification order the district deposition regularly revealed that his duties re- court states that "[d]efendant had no basis for quired believing plaintiff recently him to visit the “critical areas” had used a) plant: containing illegal drugs.” of the areas rocket motors cast; b) propellant into which had been “ignitor ignition systems PWC, Inc., Syl. room” where Triangle 3. See Pt. Yoho v. built; c) propellant the rocket were the area W.Va. being charged without furnished a cause first dealt with the issue This Court discharge. of action for such being held liable where an em- employers discharge contravenes a substan- ployee’s 246 S.E.2d at 276. W.Va. policy in v. First Na- Subsequently, General Fairmont, 162 W.Va. tional Bank in Corp., 174 Hugh Mercer W.Va. *3 Harless, (1978). In a bank 246 S.E.2d we dealt with whether S.E.2d allegedly discharged after he employee was discharge employee of an for refusal to bring to the attention of the attempted to polygraph take a test as a condition of vice-presidents, employment public pol- and a member of violated bank’s directors, icy. Specifically, the facts in indi- the bank’s board of the fact that “ employees cate that when were hired as illegally intentionally the bank ‘had cleaning “Holiday maids to work at a Inn” overcharged prepayment customers on of they signed agreements provided intentionally their installment loans and did ” they polygraph that would take examina- rebates,’ proper not make all violation required by employer. tions when of state and federal consumer credit and plaintiffs subsequently were informed that Harless, protection laws. 162 W.Va. soon; polygraph begin tests were to at 272. 246 S.E.2d arrived, plain- that time when recognized in the case a new tiffs refused to submit the examination. employees cause of action for at-will who Cordle, 323-324, 174 W.Va. at discharged employer’s are when the mo- 112-13. discharge tives for such contravene a sub- previous This Court reaffirmed its deci- Further, public policy. stantial acknowledge sions which that “[i]n opined that pri- Virginia, legally protected a interest in stating have no hesitation in that [w]e vacy recognized,”4 opined is and further Legislature intended to establish a that unequivocal public policy clear and that public it is of West by consumers of credit covered the Act or Pro- Consumer Credit and [West request employee submit to a Act, 46A-1-101 to tection W.Va.Code §§ polygraph test or similar test as a condi- given protection. were to be Such -107] although employment, tion of frus- manifest should not be rights employees under that by holding employee trated that absolute, policy are not in that under Act, lending by the institution covered circumstances, certain such as those con- compliance W.Va.Code, who seeks to ensure that templated by 21-5-5b Act, being [1983],5 polygraph dis- such a test or similar made with the can be Hugh pense drugs Syl. to which article [§ Pt. Cordle v. General Mercer five 30- chapter thirty excluding seq.], applies, Corp., S.E.2d 111 5-1 et 174 W.Va. ordinary drugs twenty- (citing Harper, as defined in section Roach v. 143 W.Va. five, 30-5-21], thirty: chapter one article [§ S.E.2d 564 Provided, however, provisions that the of this (1983) provides apply that: § 5. W.Va.Code 21-5-5b section shall not to law enforcement agencies military or to forces of the State as employer may require request No one, 15-1-1], defined section one article [§ directly indirectly, any employee that further, chapter fifteen of the Code: Provided prospective employee such sub- any results of such examination shall that the polygraph, mit to a lie detector or other determining solely purpose be used for the utilizing similar test mechanical measures of employ employ whether to or to continue to physiological to evaluate truthful- reactions ness, any exempted person no may knowingly hereunder and no allow purpose. other or test the results of such examination though holding Even our in Cordle referred administered outside this State to be utilized statute, important determining note that the purpose the above it is whether employ prospective employee statute was not in effect at the time the facts for or to continue employment that case arose. the basis for of an in this State: Provided, public poli- finding provisions the existence of a substantial of this section cy controversy was not the employees at the time of the shall not manufacture, or dis- above statute. authorized to distribute (Alaska 1989). permitted, 768 P.2d 1123 The Alaska grounded upon Supreme finding test- against such ing program company recognition in this of an individ- initiated State operated drilling rigs not in violation privacy. ual’s interest in privacy, of the state constitutional at 117. 174 W.Va. at implied was not violation of the covenant applying of the Cor- good dealing, faith and fair and did not present unques dle case to the give rise to a cause of action for invasion recognize a “le tionable that since we do privacy, specifically relied gally protected privacy” interest and the of other previously requiring em found its decision. Id. at 1130 and polygraph ployees to submit to examina *4 The court Luedtke reasoned that when upon tions based violates right privacy to was seeded privacy right, recognize that it we likewise safety concern issue such as in West to to an to right privacy] ‘we think this must [to drug testing, testing to since such submit yield man- when interferes a serious portends an invasion of an individual’s health, safety, rights ner with the right privacy.6 to privileges of others or with right welfare. No one has an to absolute do, however, temper our things do privacy of his own home exceptions Drug with two to this rule. affect will himself or others ad- testing to will not be found be violative of Indeed, versely. aspect private one public policy grounded potential in the in is, private, matter is that it is that it right person’s trusion of a to where adversely persons beyond affect by upon it is an conducted based actor, and hence is none of their good objective suspicion faith of business. When a matter does affect the usage employee’s drug or where an public, directly indirectly, it loses its employee’s job responsibility pub involves character, wholly private and can be safety safety lic or the of others. yield appropriate public made to when an allowing mandatory drug testing need is demonstrated.’ safety public safety where to others is State, (quoting Id. at 1135 v. Ravin 537 employer, to the of concern we follow the (Alaska 1975), P.2d 504 cert. denied example by set numerous courts which sub nom. v. Washington, Smith 449 U.S. permitted testing have such a situa- 66 L.Ed.2d 93 reasoning drug testing tion.7 The behind explained engaged under this circumstance was best a business is in an Where in activity public safety Court of Alaska which involves either Inc., others, safety concerns for Drilling, Luedtke v. Nabors Alaska we find that (court Compare jurisdictions upheld drug testing with other which have random on certain drug testing find that weapons plant refused to violates civilian at a chemical an individual’s public policy. or a substantial governmental safety); because interest Carpenter See Johnson v. Tech McKenzie, (D.C.Cir.1987) Jones F.2d v. 833 335 (D.Conn.1989); nology Corp., F.Supp. 723 180 (court upheld drug testing employee’s where Co., (E.D. Eng’g F.Supp. Ertsor v. Rust Tenn.1989); 704 808 young direct duties involved contact with school Co., Greco Halliburton 674 physical safety); and their children Ensor v. F.Supp. (D.Wyo.1987); Singleton 1447 v. Searail Co., (E.D.Tenn.1989) Eng’g F.Supp. Rust 704 808 Indus., Inc., (S.D.Ala.1987); F.Supp. 674 1451 (court upheld testing program pipefit- Labs, Inc., Jennings Technology v. Minco 765 working facility engaged ters at a in research of (1989); S.W.2d 497 Casse v. Louisiana Gen. energy coming nuclear into contact with Serv., denied, appeal 531 So.2d 554 533 materials); fissionable Serv., Inc., Casse v. Louisiana Gen. So.2d 375 (La.Ct.App.1988) So.2d 554 (court drug testing program upheld where com- drug testing upheld 7. The courts have legitimate safety pany public safety had a concern since it when either or the of others distributing is at was in the business volatile natu- issue nature the work: Marsh, (4th Cir.1989) gas). Thomson v. F.2d ral legitimate exists a reason for of supervisory personnel there under fourth drug testing program amendment was implementation insufficient state a cause of action claim drug-impaired employee po- pure would since addressed since ly private the state tentially conduct and increase the of harm to federal risk oth- proscriptions exclusively However, apply govern showing there be a ers. must actions). ment or state “be employees required cause limits only constitutional undergo responsibili- testing involving an element of or duties connected ties which are action, questions state the constitutional do Thus, concerns of others. not, force, hamper private their own present it is that a company obvious employers.” Comment, Employee Drug manufacturing highly explosive involved Testing Balancing Interests in the — dangerous employ fuels does individu- Workplace: Suspicion A Reasonable who, drug-impaired, if als could increase Standard, 74 Va.L.Rev. others, risk of harm they whether (hereinafter Employee referred to as Drug general public are members of the or other Therefore, Testing). generally unable, however, employees. We are can conduct without ascertain from the before this record having to concern require themselves with plaintiffs responsibilities job whether *5 ments of the fourth amendment. pub- involved the of others or However, since this Court recog- now safety. lic nizes that mandatory violates imposition now turn to We the of a rea- policy a substantial of this state suspicion sonable standard situations on the based under the public safety do not that involve analysis, “[bjecause Cordle ... [the] argues plaintiff of others. The that had fourth amendment claim ... is much employer’s drug testing policy the included stronger privacy claim, the subsumes an suspicion individualized standard it rarely the invasion of issue is ad- any public not policy; would have violated separately dressed the from fourth amend- that individualized or absent reasonable Id., ment issue in drug-testing cases.” at standard, suspicion a violation a substan- we must determine public policy occurs type probable what cause a em- effectively conducting unwarranted, an ployer prior conducting must argument This nonconsensual search. testing due to the substantial only not on the fourth amendment to issues involved. Constitution, United States the but article recognize protections provid- 3, section 6 of the West Constitu- ed the fourth amendment state con- tion. recog- stitution are not Thus we absolute. Generally, held courts have that “[t]he imposition obligation nize that the proscription against unauthorized searches upon high the meet the stan- and seizures embodied in ... the Fourth probable conducting dard cause before Amendment to the States United Constitu place test on an would an exclusively applies government ... tion upon employer. intolerable burden the See action.” v. or state Monroe Consolidated 709, 722-26, 480 Ortega, v. U.S. O’Conner Inc., (E.D. Freightways F.Supp. 654 661 1492, 1500-02, 107 S.Ct. 94 L.Ed.2d 714 Mo.1987)(citing Jacobsen, United v. States (1987). why impose That is we choose to 1652, 1656, 466 U.S. 104 S.Ct. 80 lesser standard the (1984))(court L.Ed.2d 85 found that claim upon employer.8 Drug testing the conduct- corporate employer’s institution employer utilizing an this ed standard rights policy drug-testing policy not violate violative will “[b]ecause Raab, recog- Treasury Employees United v. 8. The States has National Von 489 656, 1384, (1989), validity U.S. 103 L.Ed.2d nized of the reasonable 109 S.Ct. 685 709, 1492, Ortega, cases. O'Conner v. U.S. 107 standard Skinner v. 480 S.Ct. Association, T.L.O., (1987), Railway Jersey Labor 94 L.Ed.2d 714 Executives 489 U.S. New 469 325, (1989), 109 S.Ct. U.S. 105 S.Ct. 83 L.Ed.2d 720 103 L.Ed.2d Justice, dissenting: BROTHERTON, in cur- legitimate interest employer has drugs in the work- illicit tailing the use of for one majority’s opinion I dissent have endorsed courts place, [and] attempt create a How can reason: used to deter- the standards testing when pub- drug-free environment reason- tested were should be mine who majority ad- State? The lic of this at Testing, supra Employee Drug able.” employer can “generally private mits that Further, omitted). (footnotes “[n]o having to drug testing without conduct testing on the basis of has held that court requirements of with concern themselves drug use violates suspicion’ of ‘reasonable majority the fourth amendment.” See at 976-77 fourth amendment.” conclusion, Despite this opinion p. omitted). (footnote majority quickly discovers standard minimum placing negates the public policy exception which prior met must be employer which Hugh Quoting v. General finding. acknowledge conducting drug we 321, 325 S.E.2d Corp., 174 W.Va. Mercer right to ensure the employer’s only the not held that: this Court her operation of his or proper efficient employ- workplace, but also particular [i]t potential liability free from right to be er’s employer to usage employee’s drug brought by an on to a employee submit request ultimately result in harm to as a condi- or similar test polygraph test misfeasance mismanagement, inor others although the employment, and tion of workplace. incompetence See employees under that rights of O’Conner, 480 U.S. absolute, under are not even L.Ed.2d at 727. However circumstances, such as those con- certain employ- concerns of recognizing these *6 V.Va.Code, [1983], templated by 21-5-5b er, previously held that we have since “ may similar test polygraph test or such right right privacy is an individual ‘the ” permitted, inviolate,’ we refuse be held that should recog- upon the grounded is such upon this employer to intrude to allow an in- of an individual’s nition this State showing employee some right of his absent privacy. terest suspi- objective good faith of reasonable cion, can articulate unless syl. pt. safety or concern public concern majority relying upon this Cordle, safety employees. other ignores the fact that the result Cordle (quot- at 116 174 W.Va. statutory provision upon a direct was based Harper, 143 W.Va. ing Roach v. requir- prohibited an from To hold other- which employ- undergo effectively poly- render an “a ing wise would meaningless. right privacy detector, ee’s similar graph, lie or other such physi- utilizing mechanical measures of questions, Having answered the certified truthful- ological reactions to evaluate from the docket this case is dismissed _” Thus, legislature ad- ness this Court. tests, polygraph the issue of dressed question answered. Certified assuming correct in Court Cordle policy against public that there was BROTHERTON, J., files a dissents and tests. dissenting opinion. however, Again, these cases L.Ed.2d at 710-11. National Trea- do note that in Skinner and employ- ap- did not in the context of

sury Employees the were decided However, reasoning ply standard due is instructive. the reasonable ers. their safety overriding we which concerns issue, 1. Even without the implied by already It was addressed. Virgi- drug testing. West does not forbid that absent (1983) only tests 21-5-5b discusses § nia Code concerns, legitimate govern- or other physiological "utilizing mechanical measures of interest, standard ment truthfulness_’’ This ob- to evaluate reactions viously Treasury Employees, must be met. See National drug testing. 678-79, include does not 489 U.S. at However, legislative no indication of in- in this case. There is no statute

tent exists drug testing. I prevents While

agree right exists in that a

State, subject private employer’s to a

right place to insure that their work

drug-free. I believe that an

entitled to know whether his are

using drugs affect their work and, cases,

performance in some place. others at work suggest majority that the Twigg this case chose for test-

ing improper In- reason.

stead, appears the decision to be based

solely upon encompassing privacy an all virtually which exists to the exclusion rights. agree,

of all other I cannot nor can people

I of this State in- believe

tended such a result. CHAPMANVILLE,

BANK OF a West

Virginia Banking Corporation , Appellee,

Ralph and Donna WORKMAN

Workman, Appellants.

No. 19937. Appeals Court of Virginia. May

Submitted

Decided June