Copyright 1998 - N.C. Administrative Office of the Courts

ZANNIE GARNER, Plaintiff, v. RENTENBACH CONSTRUCTORS NCORPORATED, Defendant and Third-Party Plaintiff, v. ALLIED CLINICAL LABORATORIES, Third-Party Defendant.

No. COA97-906

(Filed 2 June 1998)

1.    Labor and Employment § 77 (NCI4th)-- employee drug testing -- noncompliance with statute -- wrongful discharge

    The termination of an at-will employee based upon a positive drug test conducted pursuant to the employer's drug testing policy can constitute a wrongful discharge when the drug test was not performed consistently with a state statute.

2.    Labor and Employment § 77 (NCI4th)-- employee drug testing -- laboratory not properly certified -- wrongful discharge

    The statutory requirement that employee drug testing be performed by a laboratory certified consistently with the statute is an express policy declaration of the legislature, and any testing inconsistent with the statute violates public policy so that the discharge of an at-will employee based on the results of such a test supports a claim for wrongful discharge. N.C.G.S. § 95-232.

3.    Labor and Employment § 77 (NCI4th)-- at-will employee -- wrongful discharge -- public policy violation

    Wrongful discharge claims for at-will employees do not exist only when the discharge is the result of an employee's refusal to violate the law upon the request of the employer or the discharge is the result of the employee engaging in a legally protected activity. Prior decisions do not preclude a wrongful discharge claim where the discharge is based on some unlawful activity of the employer or some activity of the employer in violation of public policy.

4.    Labor and Employment § 77 (NCI4th)-- employee drug testing -- statutory violations -- Department of Labor claims -- wrongful discharge claim not preempted

    The statutory authorization of the Commissioner of Labor to investigate and file claims against employers who violate the drug screening procedures of N.C.G.S. § 95-232 did not preempt plaintiff at-will employee's action against the employer for wrongful discharge based upon the public policy exception as a consequence of a urine drug test conducted inconsistently with a state statute.

    Appeal by plaintiff, Zannie Garner, from order filed 27 February 1997 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 17 March 1998.

    Mark Floyd Reynolds, II, for plaintiff appellant.

    Carruthers & Roth, P.A., by Kenneth R. Keller, for Defendant Appellee Rentenbach Constructors, Inc.