*fn1 Random drug-testing programs are those in which an employer informs its employees that they may be compelled to submit to drug testing at any time during their employment for any reason or for no reason at all.
*fn2 Gilmore also sued Enogex for the tort of intentional infliction of emotional distress caused by its mandatory drug-testing program. This challenge came to be abandoned on appeal by failure of its reassertion in the petition or brief. State ex rel. Remy v. City of Norman Okl. 642 P.2d 219 222 (1982); Amer. First Abstract v. Western Info. Syst. Okl. 735 P.2d 1187 1189 (1987); Hadnot v. Shaw Okl. 826 P.2d 978 981 (1992).
*fn3 Burk v. K-Mart Corporation Okl. 770 P.2d 24 28 (1989) announced a "limited" public-policy exception to the termination-at-will doctrine. See Sargent v. Central Nat. Bank & Trust Co. Okl. 809 P.2d 1298 1300 (1991); Todd v. Frank's Tong Service Inc. Okl. 784 P.2d 47 50 (1990).
*fn4 Fourth Amend. U.S. Const. For its terms see infra note 32.
*fn5 Art. 2 SEC.(s) 2 21 and 33 Okl.Const. For the terms of SEC.(s) 2 and 33 see infra note 20.
*fn6 76 O.S.1981 SEC. 1. For the pertinent provisions of SEC. 1 see infra note 22.
*fn7 Hinson v. Cameron Okl. 742 P.2d 549 (1987); Burk supra note 3 770 P.2d at 28.
*fn8 Hinson supra note 7 742 P.2d at 554.
*fn9 Burk supra note 3 770 P.2d at 28.
*fn10 Pearson v. Hope Lumber & Supply Co. Okl. 820 P.2d 443 444 (1991).
*fn11 Within the five protected public-policy areas identified in Hinson lies an employee's discharge for: (1) refusal to participate in an illegal activity; (2) performance of an important public obligation; (3) exposure of some wrongdoing by the employer; (4) exercise of a legal right or interest and (5) performance of an act that public policy would encourage or for refusing to do something that public policy would condemn when the discharge is coupled with a showing of bad faith malice or retaliation. Hinson supra note 7 742 P.2d at 552; Vannerson v. Bd. of Regents of Univ. of Okl. Okl. 784 P.2d 1053 1055 (1990). See Tate v. Browning-Ferris Inc. Okl. 833 P.2d 1218 1230 n.68 (1992) where an employee sued his employer for a racially motivated discharge in retaliation for his earlier EEOC (Equal Employment Opportunity Commission) complaint. Tate teaches that an employee who brings a common-law tort action for damages occasioned either by a racially motivated discharge or by one in retaliation for bringing a racial discrimination complaint states a common-law claim for tortious employment termination under Burk (supra note 3 770 P.2d at 28).
*fn12 The "at-will" doctrine is a departure from the English common law. The latter tradition presumed a hiring for one year. L. LARSON & P. BOROWSKY UNJUST DISMISSAL SEC. 2.04 at 2-6 (1989). In the late nineteenth century courts in the United States began to discard the English formulation and to develop an "American rule". See Feinman The Development of the Employment at Will Rule 20 Am.J.L.Hist. 118 122-23 (1976). The crystallization of an American rule is attributed to Horace Gray Wood whose 1877 treatise on employment relations (MASTER AND SERVANT SEC. 134 at 272) states:
"With us the rule is inflexible that a general or indefinite hiring is prima facie a hiring at will and if the servant seeks to make it out a yearly hiring the burden is upon him to establish it by proof. A hiring at so much a day week month or year no time being specified is an indefinite hiring * * * and is determinable at the will of either party * * *." Under this doctrine employers were able to "dismiss their employees at will be they many or few for good cause or no cause or even for cause morally wrong without thereby being guilty of legal wrong." (Emphasis added.) Payne v. Western A.R.R. Co. 81 Tenn. 507 519 520 (1884) overruled in part by Hutton v. Watters 132 Tenn. 527 179 S.W. 134 (Tenn. 1915).
*fn13 Burk supra note 3 770 P.2d at 28. The at-will immunity is now modified only to the extent that protection is afforded by the breach-of-public-policy doctrine. The cluster of interests the at-will doctrine encompasses may be advanced with impunity so long as they remain out of a collision course with the rights protected under the public-policy rubric. In short the employer's dismissal policy remains un circumscribed except as it is restricted by the breach of public-policy doctrine. Id.
*fn14 For this protected public-policy area -- the employee's exercise of a legal right or interest -- Hinson cites two examples of wrongful discharge: (a) dismissal for filing a workers' compensation claim and (b) for supplying information about a fellow employee to local law enforcement authorities. Hinson supra note 7 742 P.2d at 553 n. 10.
*fn15 Some courts have upheld drug testing in instances where the public safety or the safety of fellow employees is at issue: (a) Thomson v. Marsh 884 F.2d 113 (4th Cir. 1989)(Court upheld random drug testing of certain civilian employees at a chemical weapons plant because of the government's interest in safety) and (b) Jones v. McKenzie 266 U.S. App. D.C. 85 833 F.2d 335 (D.C. Cir. 1987)(Court upheld drug testing in situations where the employee had direct contact with young school children and was responsible for their physical safety).
The U.S. Supreme Court noted in two drug-testing cases -- Skinner v. Railway Labor Executives' Assn. 489 U.S. 602 109 S. Ct. 1402 103 L. Ed. 2d 639 (1989) and Treasury Employees v. Von Raab 489 U.S. 656 109 S. Ct. 1384 103 L. Ed. 2d 685 L. Ed. 2d 685 (1989) -- that the government's legitimate interest in protecting public safety as well as fellow employees from the threat of an impaired employee could justify suspicionless drug-testing of some employees. The same safety concerns could be present in the private sector.
*fn16 Gilmore directs us to Borse v. Piece Goods Shop Inc. 963 F.2d 611 (3d Cir. 1992); Twigg v. Hercules Corp. 185 W. Va. 155 406 S.E.2d 52 (W.Va.App.1990); Taylor v. O'Grady 888 F.2d 1189 (7th Cir. 1989); Ga. Assn of Educators v. Harris 749 F. Supp. 1110 (N.D.Ga. 1990).
*fn17 Hinson supra note 7 742 P.2d at 552.
*fn18 Burk supra note 3 770 P.2d at 28-29.
*fn19 Burk supra note 3 770 P.2d at 28-29. When attempting to find and articulate a clear mandate of public policy we look to the letter or purpose of a constitutional statutory or regulatory provision. Parnar v. Americana Hotels Inc. 65 Haw. 370 652 P.2d 625 631 (Haw. 1982). See Hinson supra note 7 742 P.2d at 552-553; Petermann v. International Brotherhood of Teamsters 174 Cal. App. 2d 184 344 P.2d 25 27 (Cal.App. 1959).
*fn20 The terms of Art. 2 SEC. 2 Okl.Const. are:
"All persons have the inherent right to life liberty the pursuit of happiness and the enjoyment of the gains of their own industry."
The terms of Art. 2 SEC. 33 Okl.Const. are:
"The enumeration in the Constitution of certain rights shall not be construed to deny impair or disparage others retained by the people."
Gilmore notes that Art. 2 SEC. 21 Okl.Const. represents the State's counterpart of the Fifth Amendment's protection against self incrimination.
*fn21 Gilmore relies on expressions in Burk supra note 3 Smith v. Farmers Co-op Assn. of Butler Okl. 825 P.2d 1323 (1992) and Pearson supra note 10 that public policy could be drawn from constitutional law. He notes that some other jurisdictions indicate a willingness to find public-policy protections in other areas: Luedtke v. Nabors Alaska Drilling Inc. 768 P.2d 1123 1130 (Alaska 1989) (Court held there is a public policy supporting the protection of employee privacy and that its violation by an employer may give rise to the level of a breach of the implied covenant of good faith and fair dealing; because there was a competing public concern for employee safety Court held that the employer's actions did not breach the implied covenant); Ring v. River Walk Manor Inc. 596 F. Supp. 393 396 (D.Ct.Md. 1984)(the cause was remanded for a determination whether an employee's retaliatory discharge for speaking to union organizers violated Maryland's public policy).
*fn22 The pertinent terms of 76 O.S.1981 SEC. 1 are:
"Every person is bound without contract to abstain from injuring the person or property of another or infringing upon any of his rights."
*fn23 See e.g. 40 O.S.1991 SEC. 199 (discharging an employee for filing a complaint with either his employer or the Commissioner of Labor about hour and safety violations is a misdemeanor punishable either by fine or imprisonment or both); 38 O.S.1991 SEC.(s) 34 and 35 (an employer who discharges an employee for absence owing to the latter's grand jury service is civilly liable for actual and punitive damages; such conduct is also punishable in a criminal misdemeanor prosecution); 44 O.S.1991 SEC. 208 (an employer is subject to fine or imprisonment or both for employee's discharge because of the latter's absence for military service); 85 O.S. 1991 SEC.(s) 5-7 (retaliatory discharge provisions in the Workers' Compensation Act); 25 O.S. 1991 SEC.(s) 1101 et seq. (a regulatory act prohibiting an employer's discriminatory acts toward or discharge of a person because of race or color; the act proscribes retaliation for challenging discriminatory practice; the Human Rights Commission is charged with enforcing this law; the Commission's affirmative action order may include the hiring or reinstatement of an employee with back pay).
*fn24 The Oklahoma Legislature enacted the Standards for Workplace Drug and Alcohol Testing Act 40 O.S.Supp.1993 SEC.(s) 551-565 eff. June 10 1993 which regulates employer-mandated testing programs. Because this law was enacted after Gilmore's alleged cause of action arose it has no legal effect on his claim or on this appeal.
*fn25 Gilmore directs us to O'Brien v. Papa Gino's of America Inc. 780 F.2d 1067 (1st Cir. 1986) in which an employee (discharged after he failed a polygraph test about his alleged drug usage) sued for invasion of privacy claiming he was forced to take the test under the threat of losing his job. Court affirmed the nisi prius judgment condemning the employer's methods as highly offensive to a reasonable person and an invasion of privacy.
*fn26 For a discussion of Enogex' contractual obligation to Gilmore see Part III infra.
*fn27 Munley v. ISC Financial House Inc. Okl. 584 P.2d 1336 1339 (1978)(Court adopted the invasion-of-privacy tort by intrusion upon one's seclusion found in Restatement (Second) of Torts infra); McCormack v. Oklahoma Publishing Company Okl. 613 P.2d 737 740 (1980); Eddy v. Brown Okl. 715 P.2d 74 77 (1986). Munley McCormack and Eddy give the guidelines to be followed in handling tort claims for invasion of privacy. See also Guinn v. Church of Christ of Collinsville Okl. 775 P.2d 766 778 (1989).
Section 652B of the Restatement (Second) of Torts reads:
"Sec. 652B. INTRUSION UPON SECLUSION. One who intentionally intrudes physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person."
*fn28 Some courts have addressed the applicability of a common-law invasion-of-privacy claim to the employer drug-testing programs: (a) Borse supra note 16 963 F.2d at 615 (Court held that a private employee who alleges that her discharge was related to the employer's substantial and highly offensive invasion of her privacy may have stated a claim for wrongful discharge if the circumstances of the drug test satisfy the requirements of the tortuous invasion of privacy); (b) Twigg supra note 16 406 S.E.2d at 56 (Court analogized the right of privacy enforceable against private employers to the Fourth Amendment's right to be free from unreasonable searches and seizures; it held that a private employer's requirement of a drug test without a reasonable suspicion of drug use or a question of public safety or the safety of others was unreasonable). Other courts have rejected the notion that dismissal for refusal to submit to a drug test violates public policy. See Hennessey v. Coastal Eagle Point Oil Co. 129 N.J. 81 609 A.2d 11 (N.J. 1992)(Court upheld the random urine testing of employees in safety-sensitive positions); Rothweil v. Wetterau Inc. 820 S.W.2d 557 (Mo.App. 1991); Groves v. Goodyear Tire & Rubber Co. 70 Ohio App. 3d 656 591 N.E.2d 875 (Ohio App. 1991). In Baggs v. Eagle-Picher Industries Inc. 957 F.2d 268 (6th Cir. 1992) Court upheld the private employer's right to use "intrusive and even objectionable means to obtain employment-related information about an employee " including unannounced urine testing of all employees.
*fn29 In support of its position Enogex cited Jennings v. Minco Technology Labs Inc. 765 S.W.2d 497 (Tex.App. 1989) and Luedtke supra note 21.
*fn30 For a discussion of Enogex' interest in providing a drug-free workplace see Part II(A) supra.
*fn31 See the factors discussed in Part II Common-Law Right to Privacy supra.
*fn32 The terms of the Fourth Amendment to the U.S. Constitution are:
"The 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 Warrants shall issue but upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."
*fn33 Skinner supra note 15 489 U.S. at 614 109 S. Ct. at 1411; Von Raab supra note 15 489 U.S. at 665-666 109 S. Ct. at 1390-1391. These cases isolate four criteria for evaluating drug-testing programs under the Fourth Amendment: (1) the presence of state action (by either a governmental entity or a private party acting as an instrument or agent of the government); (2) a mandatory drug test; (3) the absence of particularized suspicion; and (4) a compelling state interest in ensuring that employees do not use drugs.
*fn34 "The Fourth Amendment does not apply to a search or seizure even an arbitrary one effected by a private party on his own initiative . . ." Skinner supra note 15 489 U.S. at 614 109 S. Ct. at 1411.
*fn35 Whether a private party should be deemed an agent or instrument of the government for Fourth Amendment purposes necessarily turns on the degree of the government's participation in the private party's activities. Skinner supra note 15 489 U.S. at 614 109 S. Ct. at 1411.
*fn36 Skinner supra note 15 489 U.S. at 615; 109 S. Ct. at 1411.
*fn37 The employee manual section upon which Gilmore relies states in its entirety:
"Enogex considers its employees our most valuable asset and recognizes our goal to promote their self-fulfillment and well being. It is Enogex's policy to implement equal opportunity for employment and development to all qualified applicants without regard to race religion color sex national origin marital status or on the basis of age. Positive actions shall be taken to insure the fulfillment of this policy. Employees are expected to give their total support to this policy.
It is Enogex's policy to maintain a safe healthy work environment; to require safe facilities and work practices; and to encourage employees to take care of their personal health and safety when away from business premises.
The Company will respect the privacy of its employees and will involve itself in their personal lives only to the extent that job performance or conflict of interest is involved or where assistance programs are made available on a voluntary participation basis." (Emphasis added).
*fn38 Hinson supra note 7 742 P.2d at 554-555; Miller v. Independent School District No. 56 Okl. 609 P.2d 756 (1980); see also Langdon v. Saga Corp. Okl.App. 569 P.2d 524 527-528 (1977); Williams v. Maremont Corp. 875 F.2d 1476 1480 (10th Cir. 1989).
*fn37 15 O.S. 1991 SEC. 2.
*fn40 In Langdon supra note 38 569 P.2d at 527-528 Court of Appeals held that an employer's personnel manual providing for certain employee benefits (vacation and severance pay) created a contractual basis for a terminated employee's claim to those benefits. The policy statement incorporated into the personnel manual was a contract defining the employment relationship during the period the policy was in effect. Hinson notes that Langdon is consistent with Miller supra note 38 where Court held that the board of education's policy statement was incorporated by implication in a teacher's employment contract. Hinson supra note 7 742 P.2d at 555.
*fn41 Hinson supra note 7 742 P.2d at 554-555; see also Williams supra note 38 875 F.2d at 1481.
*fn42 Langdon supra note 38 569 P.2d at 527.
*fn42 Langdon supra note 38 569 P.2d at 528.
*fn43 Hinson supra note 7 742 P.2d at 556; see also Williams supra note 38 875 F.2d at 1481.
*fn45 See Langdon supra note 38 569 P.2d at 528.