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Employment Law No. 01-0292, 5/15/2003. Click here for the full text of this decision FACTS: Mission Petroleum Carriers Inc. terminated Roy Solomon, an at-will employee, for failing a random drug test. Solomon sued Mission, contending that it breached a common-law duty by not exercising ordinary care in the manner it collected his urine specimen for testing. Mission claims that this suit is essentially a suit for negligent discharge, which is incompatible with the doctrine of employment-at-will. HOLDING: Reversed and rendered. In SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347 (Tex. 1995), this court addressed the related question of whether an independent drug testing laboratory, hired by an employer to test prospective employees, owes a duty to warn those employees that certain substances, if ingested prior to a drug test, could cause a positive test result. Emphasizing that that the court was deciding only the narrow question presented, the court concluded that the testing laboratory owed no duty to warn the person tested or to investigate the reason for a positive result. The court declined to address any duty the employer may owe to an employee and expressly reserved the question whether a laboratory may be liable for performing drug tests negligently. Courts in other jurisdictions are split on whether a testing laboratory owes a duty to third-party employees when collecting or analyzing urine samples. Although these opinions inform consideration of the issue, they rest largely on analysis of wrongful termination claims. The court recognizes that Solomon does not contest Mission’s right to terminate him. Instead, he asserts that Mission had a duty not to destroy his future employment prospects. The court considers, then, whether imposing that duty is consistent with the comprehensive federal regulatory scheme already in place and with the common law in related areas. Solomon sued in court rather than pursuing these administrative remedies. The court recognizes that curtailing drug use in trucking is, as the regulations indicate, a national concern requiring national standards. But the court is not persuaded that case-by-case adjudication of collection procedures through tort litigation would serve the broader interest Solomon quite properly seeks to protect. Solomon contends that recognizing a common-law duty to use reasonable care in collecting urine samples satisfies the Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, (Tex. 1990), risk/utility test because an employee’s need for protection from a flawed drug test result outweighs the magnitude of the burden of guarding against this injury. Applying the Phillipsrisk/utility factors here, the court agrees there is a serious risk that an employee can be harmed by a false positive drug test. However, the risk is reduced by the protection DOT regulations afford to the employees. The DOT’s comprehensive statutory and regulatory scheme, coupled with the authority granted to the MRO, affords significant protection to employees who are the subject of random drug tests. Without these protections, the risk of harm resulting from a negligently conducted urinalysis test would be great. But here, the DOT regulations strike an appropriate balance between the need for efficient drug testing and the requirement that each employee have the means to insist on the integrity of the process. While the regulations do not create a private cause of action for an employer’s breach of DOT protocols, employees are entitled to compel compliance by invoking regulations already in place. Those regulations serve as an incentive for employers to carefully abide by those protocols and as a safe harbor for employees whose test results are tainted by unacceptable breaches of collection procedures. The court declines to impose a common-law duty on employers who conduct in-house urine specimen collection under the DOT regulations. If a duty of care were to arise every time the harm to an employee transcends the employment agreement, the employment-at-will doctrine would be undermined because an employer’s basis for termination would have to be justified by a reasonable investigation, which is contrary to the doctrine. Just as the court has consistently preserved the doctrine of employment-at-will from encroachment by other liability theories, the court declines Solomon’s invitation to adopt a new theory of liability for negligent drug testing. OPINION: Jefferson, J.; Phillips, C.J., Hecht, Enoch, Owen, O’Neill and Wainwright join parts I, II, III-C, IV &V. Hecht, Owen and Wainwrigh join Parts III-A, III-B & III-D. Smith, J., concurs in the judgment only. CONCURRENCE: Enoch, J.; Phillips, C.J., and O’Neill, J., join. “Roy Solomon asserts that he will never be able to work in his chosen career again because his employer, Mission Petroleum Carriers, Inc., negligently conducted a drug test. Although Mission Petroleum tries to engage the court’s interest by responding that the well-settled employment-at-will doctrine in Texas is under attack, Solomon insists, and the Court agrees, that the employment-at-will doctrine is not at issue here. Solomon, though he perhaps wishes an employer could not fire an employee for a reason that is false, is not concerned with his termination. His injury, if in fact negligently caused, is much more serious. According to Solomon, a positive result on a drug test for a professional truck driver stays with his record the rest of his life. Thus, I think it unnecessary for the Court to nevertheless discuss the employment-at-will doctrine, suggesting that that would somehow be regrettably circumscribed were we to impose common-law liability on an employer who conveys false information that results in its former employee being unemployable in his chosen career.” CONCURRENCE: Schneider, J.; “The Court’s refusal to impose a common-law duty is premised on its reluctance to interfere with the DOT’s ‘comprehensive’ regulatory scheme and ‘burden . . . our employment-at-will doctrine.’ ___ S.W.3d at ___. Justice Enoch’s concurring opinion points out that the employment-at-will doctrine is not implicated in this case, and I agree with that reasoning. But I would add that I do not believe that imposing a common-law duty would disrupt the balance in the policies underlying the DOT regulations.”

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