Drug Testing Policy Held Not a Contract

​Last month, a federal district court dismissed an employee’s breach of contract claims against his employer, which, according to the employee, failed to follow its own drug and alcohol testing procedures. Wiggins v. Kimberly-Clark Corp. (E.D. Tenn. 2012).

In August 2011, Kimberly-Clark forced 18-year employee William Wiggins to undergo a breathalyzer test after another employee stated to management that Wiggins “smelled of alcohol and was drunk.” Wiggins passed the breathalyzer test, as well as a urinalysis test for illegal drugs.

Wiggins later sued, bringing numerous breach of contract and tort claims. Among other things, Wiggins alleged that Kimberly-Clark’s testing policy required a “for cause” determination before an employee could be sent for testing, and that this determination never took place.

Relying on Tennessee law relating to handbooks, the court held that a company policy will not constitute a contract, unless it contains “specific language showing the employer’s intent to be bound … .” The court found no such language in this case. To the contrary, it found that the company’s drug-free workforce policy was “expressed in its Code of Conduct,” which contained specific language stating that it was not a contract, but a statement of principal reserving for management the right to take “any action deemed by it to be in the best interests of Kimberly-Clark.” This language, along with a disclaimer in the testing policy, led the court to conclude that the company’s policy was merely a guide, and not a contract.

“Employers would do well to follow their drug and alcohol testing policies closely,” advises MSEC attorney Curtis Graves. “While this is a positive case for employers, adhering to your policies remains the best way to avoid litigation.”