Judges Brody, Gruccio and D'annunzio.
The opinion of the court was delivered by: D'annunzio, J.A.D.
This opinion addresses random urine testing by a private sector employer to detect the illicit use of drugs.
Plaintiff, James Hennessey, was an at-will employee of defendant, Coastal Eagle Point Oil Company (Coastal). As part of its drug interdiction program, Coastal subjected Hennessey to a random urine test on June 9, 1986. The test revealed Hennessey's use of marijuana and diazepam. Marijuana is a Schedule I controlled dangerous substance and diazepam is a Schedule IV substance. N.J.S.A. 24:21-5e.(10); N.J.A.C. 8:65-10.4(b)2. The possession or use of those substances are criminal offenses under New Jersey statutes. N.J.S.A. 24:21-20a and b, (current version at N.J.S.A. 2C:35- 10a and b (1987)). Although diazepam is the active ingredient in a frequently prescribed tranquilizer (Valium), Hennessey does not contend that he used diazepam pursuant to a valid prescription.
Coastal discharged Hennessey, who then commenced this action for wrongful discharge. Plaintiff's six count amended complaint alleged a variety of legal theories to support his allegation that Coastal wrongfully discharged him. The parties stipulated damages in the amount of $100,000 and cross- moved for summary judgment on liability. The trial court entered judgment in plaintiff's favor under count one which alleged a discharge "contrary to a clear mandate of public policy of the State of New Jersey." See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980). Coastal appeals from the judgment, and we now reverse.
Before we discuss the legal issues, some background information will be helpful to understand the context in which this dispute arose.
Coastal operates an oil refinery which it acquired from Texaco in May, 1985. Coastal's facility is located on 1,000 acres and it includes an 800 acre tank farm with 120 storage tanks. The largest tank has a capacity of 21,000,000 gallons. The facility operates 24 hours per day with 330 employees, producing 4,800,000 gallons of refined product each day. The refinery produces gasoline, jet fuel, high octane aviation fuel, kerosene, heating oils, benzene, cumene, butane and propane gas. All of the products are combustible and some are highly toxic.
The refining process requires the application of high temperatures, sometimes reaching 1,300 degrees fahrenheit, and pressures up to 500 pounds per square inch. Catalysts such as sulfuric acid are used, and hydrogen gas is a major by-product.
Crude oil is delivered to Coastal by tanker or pipeline. It is transported to a processing unit or to a tank for storage. After completion of the refining process, the end product is transported to a storage tank and eventually piped to a dock or a railroad or truck loading facility, where the product is loaded for shipment out of the refinery.
Hennessey had been a Texaco employee who retained his job when Coastal acquired the refinery in May, 1985. He was employed in the Movement and Storage Division as a lead pumper in the tank farm. Two paragraphs from the affidavit of James Myers, a Coastal executive, explain the function of a lead pumper:
Beneath the position of lead pumper in the organizational chart of the Tank Farm are the positions of gaugers. The gaugers are responsible for blending gasoline in the tanks, placing the proper amounts of butane, lead, anti-knock and dye in the tanks; unloading lead tank cars into a special tank; and being in charge of the propane tanks and the sales tanks in the sales department. A gauger also gauges the tank to measure the volume of product in the bank and the rate of inflow or outflow of product and opens and closes the valves that control the flow of product through the Tank Farm. The gaugers are directed in their work duties by the lead pumper.
The lead pumper at the Coastal refinery works in the control room in the Tank Farm where in front of him are two telephones, one radio and a console board registering the condition of the valves (e.g., what valves are open) and the nature of many of the line-ups throughout the Tank Farm. From the control room, the lead pumper directs the work activities of the gaugers, who do very little without the lead pumper's direction. At the beginning of his shift, the lead pumper receives orders and instructions on what products are to be pumped and what volumes are to be pumped during the course of his shift. The lead pumper must heavily rely on the accuracy of those instructions, just as the lead pumper must heavily rely on his orders and instructions, which are largely based on the preceding lead pumper's work and records. If the volume levels given to a lead pumper are not expressed in gauge levels, the lead pumper must first make accurate calculations to convert the volume and figures into gauge levels that can then be conveyed to and used by the gauger at the Tank Farm. The lead pumper must then interpret and understand all of his orders in order to be able to convey them properly to the gaugers.
When Coastal acquired the refinery in May 1985, it retained the Texaco work- force, but subjected the employees to physical examinations, including urinalysis. Hennessey's urine test at this time was negative for evidence of drug use. However, the 1985 urine testing revealed that 19% of the work force used drugs. According to the affidavit of Michael J. Hoey, Coastal's Manager of Employee Relations, the drug users were "given a stern warning by Coastal that any form of drug use or impairment at work would not be tolerated."
As a result of the 1985 drug test results, Coastal adopted and disseminated to all employees a written policy titled "Company Policy On Alcohol, Drugs And Controlled Substances." A memorandum dated June 21, 1985, accompanied the written policy. A copy of the policy is attached to this opinion as appendix A. It includes a directive that any employee using a drug or medication "known or advertised as possibly affecting or impairing judgment, coordination, or other senses or which may adversely affect the ability to perform work in a safe and productive manner must notify his or her supervisor or other management official prior to starting work...."
The policy also warned employees that any employee "may at any time be required to give a urine or blood sample in order to determine compliance with the policy."
The accompanying memorandum informed the employees "that any violations of this policy may lead to immediate termination," but that employees who voluntarily admitted to a drug problem would be assisted in their efforts at rehabilitation. A copy of the memorandum is attached to this opinion as appendix B.
According to Hoey, Coastal discovered evidence of on-the-job marijuana usage in January, 1986. As a result, Coastal implemented a program of random urine testing in the spring of 1986. Each week, Coastal tested five employees selected randomly by the plant nurse. To deter the submission "of fake or adulterated samples ... an observer is present in the lavatory and observes from the rear while a sample is submitted, with the observer instructed ... not to look at any of the employees' genitalia or private parts." The sample is tested solely for evidence of drugs, initially through an Enzyme Multiplied Immunoassay Technique (EMIT) test. A positive EMIT is confirmed by a gas chromatography mass spectrometry test. See In re Carberry, 114 N.J. 574, 579-580, 556 A.2d 314 (1989), for a discussion of those tests. In the present case, the parties stipulated that the test of Hennessey's urine yielded an accurate result.
The trial court relied on the prohibition against unreasonable searches and seizures, found in Article I, paragraph 7 of the New Jersey Constitution, as the source of the public policy which it found that Coastal had violated. The court also relied on Fraternal Order of Police v. City of Newark, 216 N.J.Super. 461, 524 A.2d 430 (App.Div.1987), in which another panel of this court invalidated a Newark Police Department directive mandating urine testing for all members of the department's narcotics bureau upon transfer into the bureau and at least twice a year while assigned to the bureau. In Fraternal Order of Police, the panel held that in the absence of individualized suspicion, urine testing is an unreasonable search and seizure in violation of the New Jersey constitution. Id. at 477, 524 A.2d 430. See also Allen v. Passaic Cty., 219 N.J.Super. 352, 530 A.2d 371 (Law Div.1986). But cf. Local 194A v. Burlington County Bridge Comm'n., 240 N.J.Super. 9, 572 A.2d 204 (App.Div.) (urine testing of public employees in the absence of individualized suspicion does not violate ...