recognizing common law right "to be free from harassment and constant intrusion into one's daily affairs" (quoting Siggelkow v. State , 731 P.2d 57, 62 (Alaska 1987) )
How later courts described this case
- recognizing common law right "to be free from harassment and constant intrusion into one's daily affairs" (quoting Siggelkow v. State , 731 P.2d 57, 62 (Alaska 1987) )
- stating that if term of employment is not for express or implied determinable length of time, employee is at-will
- the 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, the court held that the employer's actions did not breach the implied covenant
- res judicata does not preclude employer's claim that employee was fired for due cause after decision by Commissioner of Labor that employee was not fired for misconduct, because discharge for misconduct and wrongful discharge are separate issues
Written by the judges who cited it.
The opinion
MATTHEWS,
Chief Justice, concurring.
I agree with the majority’s conclusion that Nabors was justified in discharging both appellants. Further I agree that on remand the trial court should determine whether Nabors breached the covenant of good faith and fair dealing by suspending Paul Luedtke because he tested positive for *1139 using marijuana during a twenty-eight day leave period, without first notifying him that it was against company policy for employees to use marijuana at any time.
The critical element in Paul Luedtke’s suspension claim is the alleged failure of Nabors to notify its employees that they were expected to refrain from using marijuana during their weeks on leave. It seems to me that a jury might find, if there was such a failure, that it amounted to conduct which was so unfair as to be a violation of the covenant of good faith and fair dealing. I do not, however, share the view that an employer may not impose as a condition of employment a requirement that its employees refrain from all use of marijuana at all times. 1
In the private sector, the establishment of employment criteria has traditionally been left to employers, except as to such relatively narrow but important categories as race, religion, gender, and age. AS 18.80.220. So, if an employer wants to impose a condition of continued employment that none of its employees use marijuana at any time, I can see no legal impediment, apart from the possibility that advance notice of the condition may be required.
It may be that the covenant of good faith and fair dealing also requires that any employment criterion have some relationship to a legitimate employer concern. If a relationship is required, it would be easily met in the case of an employer whose policy it is to hire no one who used marijuana or other consciousness altering substances. Safety is a prime concern, as today’s majority opinion makes clear. Those who use marijuana off duty are more likely to use or be influenced by marijuana on duty than those who do not use it at all. Moreover, considerations of lost productivity, absenteeism, and medical insurance rates may justify a total abstinence employment criterion. Drug use, including alcohol, has been estimated to cost employers between $60 billion and $100 billion per year. 2 Thus I believe that a private employer could, with proper notice, impose as a condition of employment a requirement that its employees not use marijuana at any time.
. The following language in the majority’s opinion implies that an employer may not impose a total abstinence requirement:
As a result, Nabors is justified in determining whether the Luedtkes are possibly impaired on the job by drug usage off the job.
We observe, however, that the employer’s prerogative does have- limitations.
First, the drug test must be conducted at a time reasonably contemporaneous with the employees’ work time. The employer’s interest is in monitoring drug use that may directly affect employee performance. The employer’s interest is not in the broader police function of discovering and controlling the use of illicit drugs in general society. In the context of this case, Nabors could have tested the Luedtkes immediately prior to their departure for the North Slope, or immediately upon their return from the North Slope when the test could be reasonably certain of detecting drugs consumed there.
. Note, Drug Testing of Public and Private Employees in Alaska, 5 Alaska L.Rev. 133, 133 (1988). A recent survey puts the cost at more than $100 billion per year. N.Y. Times, Dec. 12, 1988 (Business Section), at 1, col. 1.