Statutory enforcement of workplace drug test violations the exclusive remedy, Iowa Supreme Court rules

by Rox Laird | December 20, 2019

A person cannot bring a common-law claim for wrongful discharge for a violation of a state statute that governs employer drug and alcohol testing procedures because the statute provides a civil remedy for violations of the statute, the Iowa Supreme Court ruled unanimously in a decision handed down Dec. 13.

Deborah Ferguson sued Exide Technologies after she was fired for refusing to take a drug and alcohol test. Ferguson made two claims against Exide in Delaware County District Court: A common-law claim for wrongful discharge in violation of public policy, and a claim for civil remedies provided for in statute.

Iowa Code section 730.5, which regulates workplace drug and alcohol testing, states that an employer who violates the statute “is liable to an aggrieved employee or prospective employee for affirmative relief including reinstatement or hiring, with or without back pay, or any other equitable relief as the court deems appropriate including attorney fees and court costs.”

Exide conceded the statutory violation but moved for summary judgment on the common-law wrongful discharge claim. The District Court denied Exide’s motion and tried the question of damages to a jury, which returned a verdict of $45,606.40 for lost wages and benefits and $12,000 for emotional distress.

In its appeal, Exide argued that Ferguson could not bring the common-law wrongful discharge claim because the statute provides a civil remedy for violations.

The Supreme Court, in a decision that addressed this question for the first time, agreed.

Iowa’s common-law claim for wrongful discharge in violation of public policy was first established by the Court in Springer v. Weeks (1988). The principle behind that decision is that an exception should be made to Iowa’s at-will employment when an employee’s firing violates a public policy declared by the Legislature.

In this case, the legislative public policy is established in the statutory regulation of workplace drug and alcohol tests, which includes the civil remedy for violations enacted after Springer was decided. The question, the Court said, is if that statutory remedy had existed at the time of Springer, would the court have adopted a common-law option?

“The answer is no,” the Court said.

“In keeping with the original purpose of the common law action,” the Court said, “when the legislature includes a right to civil enforcement in the very statute that contains the public policy a common law claim would protect, the common law claim for wrongful discharge in violation of public policy becomes unnecessary.”

The Court remanded the case for further proceedings, including vacating the parts of the jury’s damage award available only under the common-law claim and upholding the parts of the award available under Iowa Code section 730.5(15).

Why a per curiam ruling?

The Iowa Supreme Court’s ruling in Ferguson v. Exide Technologies was not signed by a justice as the author, but was issued per curiam, or for the court as a whole.

OnBrief reasons this decision was written by Chief Justice Mark Cady, who died Nov. 15, less than one month before the decision was handed down. This reasoning is based in part by the unusual length and substance for a per curiam ruling, and the fact that it bears the distinctive writing style of the late chief justice.

State and federal courts typically remove the name of justices from decisions they participated in if they are not on the court at the time the decision is issued.

The U.S. Supreme Court recently issued an order in a case from the U.S. Court of Appeals for the Ninth Circuit, which addressed a similar issue.

Judge Stephen Reinhardt, who died March 29, 2018, was listed as the author of an en banc decision issued on April 9, 2018, 11 days after his death.

“By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow,” the Supreme Court order said.

“Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed. Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference. Was that lawful?”

The answer, the Supreme Court concluded, was no:

“Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority,” the order stated. “That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.”

Somewhat ironically, this order was announced in a per curiam opinion.


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