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Court rules out random drug tests by private employers
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FOR IMMEDIATE RELEASE
COURT RULES OUT RANDOM DRUG TESTS BY PRIVATE EMPLOYERS
Judge Donald A. Smith, Jr., of the New Jersey Superior Court
in Gloucester County, declared that "New Jersey public policy
mandates that drug testing only be conducted in the workplace
upon a good faith showing of individualized reasonable
suspicion," and that this policy applies to private as well as
public employment. The judge's landmark ruling was issued in a
lawsuit for wrongful discharge brought by James Hennessey, an
employee of Coastal Eagle Point Oil Company (Coastal), dismissed
for testing positive in a random drug test ordered by his
employer. The American Civil Liberties Union of New Jersey
participated in the suit as amicus curiae.
Hennessey had been employed for 13 years at the West
Deptford, New Jersey refinery owned formerly by Texaco, Inc.
and, since May 1985, by Coastal. When Coastal took over, all
Texaco employees were discharged and many (including Hennessey)
rehired. Coastal initiated a physical examination, including drug
testing, as part of its hiring procedure. The company announced
that those testing positive would be allowed to seek
rehabilitation as an alternative to discharge. Hennessey did not
test positive at that time.
In 1986, however, the company switched to a program of
random testing of employees and discharge of all who tested
positive, without an option for rehabilitation. Non-supervisory
employees were given no notification of this new policy.
Hennessey was randomly selected, tested positive, and was
dismissed despite his offer to seek rehabilitation.
Judge Smith ruled that earlier New Jersey court decisions,
which determined that urine tests of public employees without
individualized reasonable suspicion violate New Jersey's
constitutional prohibitions of unreasonable search and seizure,
are declarations of public policy that apply to private
employees also. He found further unreasonableness and a
violation of public policy in the manner in which the company's
drug policy was changed without notification to employees and the
lack of guidelines to protect employees from erroneous test
results. He ordered a trial to determine the amount of damages
to be paid.
Hennessey was represented by James Katz of Haddonfield.
The ACLU amicus brief was written by Robert Westreich of
Morristown. Staff attorney Elizabeth J. Miller argued for the
ACLU at the hearing before Judge Smith on December 15, 1988.
FOR FURTHER INFORMATION CONTACT:
Robert Westreich, Esq.
Morristown, NJ
(201) 984-4000
Elizabeth J. Miller, Esq.
ACLU-NJ
(201) 642-2086
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