Copyright (c) 1993 Temple University of the Commonwealth System of Higher Education
Temple Law Review
LABOR LAW - Drug Testing and the Employment At-Will Doctrine: Third Circuit Defines New Cause of Action for Wrongful Discharge - Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992).
66 Temp. L. Rev. 327
Peter A. Muhic
Pennsylvania courts have long recognized the common law right of an employer to discharge an at-will employee 1 with or without cause absent any statutory or contractual provisions to the contrary. 2 In 1974, the Pennsylvania Supreme Court acknowledged a possible restraint on employers' freedom to exercise this right where the employee's termination violates a clear mandate of public policy. 3 Pennsylvania courts have, however, strictly construed this public policy exception, limiting it to only a few cases in which the legislature previously recognized the public policy in a statute. 4 Unfortunately for Pennsylvania employers, the United States Court of Appeals for the Third Circuit, applying Pennsylvania law, has broadened this public policy exception to allow wrongful discharge actions based on common law privacy rights. 5
In Borse v. Piece Goods Shop, Inc., 6 the Third Circuit held that an at-will employee discharged for refusing to consent to random drug testing and personal property searches may have a cause of action for wrongful discharge under Pennsylvania law if such testing tortiously invaded her common law right to privacy. 7 The Borse holding ignored the explicit intent of the Pennsylvania judiciary to restrict wrongful discharge actions to the most limited of circum stances. 8 Pennsylvania courts have never permitted such a loosely defined common law interest to be used as the "clear mandate" of public policy, which limits an employer's power of discharge. 9 Instead of applying existing law, the Third Circuit created a new cause of ...
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