An employee has no breach-of-contract claims against his employer for failing to follow its own drug- and alcohol testing procedures, the U.S. District Court for the Eastern District of Tennessee has ruled.  Wiggins v. Kimberly-Clark Corp., No. 12-00115 (E.D. Tenn. Oct.12, 2012). The court found the employer’s drug-free workplace policy did not constitute an employment contract. Therefore, there could be no breach-of-contract action because the policy did not include express language establishing the company’s “intent to be bound” by the policy. The court dismissed the case.

In August 2011, William Wiggins, a Kimberly-Clark employee, was referred for substance-abuse testing after a co-worker reported to management that Wiggins smelled like alcohol and was drunk. The company required Wiggins to be tested for alcohol based on breath and urine tests, both of which came back negative.

Wiggins sued the employer, claiming breach of express and implied contract, as well as several tort claims – invasion of privacy, outrageous conduct, false imprisonment, and misrepresentation.

The court found no contract existed between Kimberly-Clark and its employees as a result of its policy on substance-abuse prevention because there was no evidence of the company’s “intent to be bound” by the policy.

The court relied not only on the lack of an express intent to be bound by the policy, but also on the inclusion of language in the employer’s code of conduct to the contrary.  It stated that the code did not “constitute a contract of any kind or any inflexible set of rules.”

Thus, the court dismissed the plaintiff’s contractual claims. The tort claims, of course, were not affected directly.

Also helpful to the company was a disclaimer in its workplace policy that the testing procedures are “provided to assist in determining if a for-cause test is warranted and how to accomplish it” [emphasis added] and are statements of “principle.”

Lesson

Employers may consider including a provision in their substance-abuse-prevention policy stating that the policy does not establish a contract.  For example:

The company’s policy and procedures regarding drug- and alcohol-abuse prevention and testing do not constitute an employment contract and/or establish any contractual obligations for the company or any contractual rights for any individual.