SMITH, DONALD A. JR., J.S.C.
This matter is before the court on cross motions for summary judgment. Plaintiff James Hennessey filed his action challenging the legality of the drug screening policy of defendant Coastal Eagle Point Oil Company and his discharge as a result of such program.
The court concludes that the discharge of plaintiff Hennessey was in violation of public policy and therefore must be set aside. Plaintiff's motion is granted; defendant's motion denied.
Coastal Eagle Point Oil Company operates an oil refinery along the Delaware River in West Deptford Township covering 1000 acres and employing approximately 330 employees. It refines crude oil into various products as did its predecessor, Texaco, Inc., from whom it purchased the refinery on May 21, 1985. The refinery operates 24 hours a day refining and transporting product by pipeline to various parts of the plant or tank farm, and loading and unloading ships and rail cars.
Plaintiff James Hennessey was employed by Coastal from May 21, 1985 to the date of his discharge, June 13, 1986, as a lead pumper in the tank farm. He had been a previous employee of Texaco, Inc. and when the plant was purchased all Texaco employees were discharged and Coastal then hired employees deemed necessary to operate the refinery. Mr. Hennessey was an employee-at-will, there being no employment contract nor union contract. As lead pumper, Hennessey worked in the control room of the tank farm directing gaugers in the movement and storage of product throughout the tank farm and plant.
Hennessey had worked for Texaco and for Coastal without incident for a total of 13 years and had been characterized by his supervisors, Hoey and Turner, as an above average worker. He had never been previously disciplined or observed as being under the influence of alcohol or drugs. On June 9, 1986 Hennessey, while at work, was subjected to a random drug test by way of a urine sample. On June 13, 1986 his employment was terminated because the same indicated positive for drugs, (marijuana and valium).
When plaintiff commenced employment with Coastal in May, 1985, there was no written policy regarding drugs or controlled substances, nor was Coastal performing random drug testing of employees. Coastal's policy regarding alcohol, drug and substance abuse went into effect on June 21, 1985. At that time a three-page document entitled "Company Policy on Alcohol, Drugs and Controlled Substances" was personally given to the company's employees. A copy is attached as Exhibit A.
During the refinery start-up time, after May 21, 1985, for the following few months, all employees were given physicals as part of their initial hiring. Apparently, because of the number of employees hired and the start-up, these physicals were post-hiring but were considered pre-hiring physicals which included urine samples. Pursuant to the policy, any employee who tested positive for drugs was given a second chance, and permitted to remain employed and to seek rehabilitation in lieu of discharge. Approximately 15-20 employees fell into this category. Plaintiff at that time did not test positive.
On January 30, 1986 a document was distributed to all Coastal managers which ended the company's prior practice of permitting employees who tested positive for drugs to seek rehabilitation in lieu of termination. The document was only directed to managers and included no instructions that it be forwarded to employees. Plaintiff never received a copy of this document nor was he made aware of the change in policy.
Without further notice to the employees, random drug testing began in the spring of 1986 with the testing of four employees including plaintiff. On June 9, 1986 plaintiff was randomly selected and compelled to submit to a urinalysis. Refusal to submit was grounds for termination. This was the result of the January 30, 1986 "Departmental correspondence" from George Orescan, Vice President and General manager, to all managers directing them in turn to adverse all supervisors that if any employee is found to be in violation of company policy regarding drugs and/or alcohol, a request by the employee for rehabilitation will not be a mitigating factor. (Exhibit B attached.) No employees were aware of this document. No company employee meetings were held and no written policy was given to the employees after the June 21, 1985 notice, nor were the employees or supervisors ever made aware of what procedures would take place, how testing would be done or how the results of the tests would be utilized.
For the following reasons violation of public policy is found.
Article I, para. 7 of the New Jersey Constitution directs that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the papers and things to be seized.
It has been determined in State v. Novembrino, 200 N.J. Super 229, 238 (App. Div. 1985) aff'd 105 N.J. 95 (1987) that a search conducted for the purposes of obtaining evidence of criminal activity is unreasonable and therefore unconstitutional unless it meets the probable cause and warrant requirements. There are, however, exceptions to this rule requiring a search warrant. Warrantless searches are permitted upon the showing of probable cause or some individualized suspicion less than probable cause where these exceptions exist. State v. Valencia, 93 N.J. 126, 136 (1983). New Jersey v. T.L.O., 469 U.S. 325, 342, 105 S. Ct. 733, 744, 83 L.Ed2d 720 (1985).
In the present case although a threat of criminal exposure was contained in the drug testing notice of June 21, 1985, the purpose of the testing, it was argued, was for plant, public and employee safety.
The non-criminal ramifications of search and seizure safeguards are most noticeable in the area of drug screening by a public institution. A mandatory urine test involving the submission of a urine sample for the purpose of drug screening has been held to constitute a search and seizure under the New Jersey Constitution. Fraternal Order of Police v. City of Newark, 216 N.J. Super 461, 466 (App. Div. 1987) and Allen v. Passaic County, 219 N.J. Super 352 (Law Div. 1986).
The court, in Fraternal Order, dealt with the non-criminal aspect of search and seizure when it struck down a detailed regulation calling for the drug screening of all police officers of a narcotics unit. The court reasoned that random drug testing was "unconstitutional in the absence of some reasonable individualized suspicion." Id. at 471. In so ruling, the court further recognized that "the reasonable individualized suspicion test fairly accommodated the legitimate interest of employee privacy without unduly restricting the public employer's opportunity to monitor and control the use of drugs by its employees." Id. at 473.
Similarly, the court, in Allen, held that the appropriate standard to be applied, in a situation where the Sheriff of Passaic Co. ordered all personnel in his department to submit to mandatory urinalysis, is that of reasonable suspicion. Id. at 380.
The holdings of Fraternal Order and Allen are clear and precise; without individualized reasonable suspicion drug testing in the public workplace is unconstitutional. Both cases involved drug testing/screening of public employees by public employers. The decisions were predicated wholly upon state action and constitutional violations. Notwithstanding, the holdings of Fraternal Order and Allen pronounced a standard of general public policy regarding drug screening throughout the workplace, which applies to public as well as private employment.
The question now presented is whether the "reasonable suspicion test" carries over from the public sector into the private sector where a private employer subjects its private employee to random, ...