• Please Release Me -- Let Me Go
  • January 27, 2004 | Author: Sally E. Howe
  • Law Firm: Fox Rothschild LLP - Princeton Office
  • A New York federal court recently permitted an employee, who had been fired for refusing to sign a form releasing his employer and a drug testing facility from liability should a drug test be negligently performed, to proceed with his claim that he had been terminated in violation of the New Jersey Conscientious Employee Protection Act ("CEPA"). Although Fitzroy Smith, the employee, did not object to the drug test itself, he did object to his employer's requirement that he sign a release before being tested because he believed that the language releasing his employer and the drug testing company from "any and all claims . . . resulting from the withdrawal of the . . . specimen, its analysis, and the release of the information regarding the results thereof" would encourage negligence by the employer or the drug testing facility. Smith repeatedly informed representatives of both Grobet File, his New Jersey employer, and his union of the basis for his objection and that he was concerned that an employee who was infected with HIV through a negligently sterilized or used needle would have no legal recourse. He ultimately was fired for his refusal to sign the release.

    Smith, a New York resident, filed suit in New York federal district court alleging that he had been terminated in violation of CEPA, New Jersey's "whistleblower" act. Specifically, Smith alleged that his termination for refusing to sign the release violated two separate provisions of CEPA. First, he claimed that his termination violated section 3(c)(1) prohibiting retaliatory action against an employee who objects to "any activity, policy, or practice which the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law" because the release's liability waiver was itself unlawful. Second, Smith claimed that the requirement that he sign the exculpatory clause was in violation of "a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment" (section 3(c)(3)) because it would encourage negligence or other wrongdoing by the party doing the drug testing by immunizing them from legal liability.

    The Court rejected Smith's claim under section 3(c)(1) that the waiver at issue here was unlawful because, unlike California, New Jersey "does not statutorily prohibit exculpatory clauses that waive a duty imposed by law." However, the Court refused to dismiss Smith's claim that his termination was in violation of a "clear mandate of public policy." The Court found such public policy in administrative regulations governing the operation of clinical laboratories in New Jersey that impose an affirmative duty to ensure the safety of devices used to collect and test blood. Thus, to the extent that Smith believed the release would foster negligence in collecting blood specimens, possibly resulting in HIV infections, his concerns were consistent with that public policy, and he was allowed to proceed on his CEPA claim.

    While employers routinely ask employees to sign releases, they need to make sure that the release language is tailored to the occasion and that any discipline for an employee's refusal to sign that release is carefully reviewed before any action is taken. In this case, a re-drafting of the release language may have solved the problem and allayed Smith's concern. Additionally, the employer should have consulted with legal counsel in originally drafting the release and certainly before terminating the employee.