Opinion
No. 5-827 / 04-1045
Filed January 19, 2006
Appeal from the Iowa District Court for Des Moines County, John G. Linn, Judge.
A plaintiff employee appeals from the district court's dismissal of his claims against the defendant employer, which stemmed from the employer's alleged failure to follow statutory drug-testing requirements. AFFIRMED.
Victoria L. Herring of Herring Law Firm, Des Moines, for appellant.
Kelly R. Baier and Kevin C. Papp of Bradley Riley, P.C., Cedar Rapids, for appellee.
Heard by Sackett, C.J., and Miller and Vaitheswaran, JJ.
Tommy Welcher appeals the district court's dismissal of his claims against his employer, American Ordnance (AO), which stemmed from AO's alleged failure to follow state drug testing requirements, and the termination of Welcher's employment based upon positive drug test results. We affirm the district court.
I. Background Facts and Proceedings.
AO manufactures military ordnance under an exclusive operations contract with the United States Department of Defense (DoD). Pursuant to its contract with the DoD, AO is obligated to comply with 41 U.S.C. § 701, which sets forth requirements for maintaining a drug-free workplace. Federal regulations specify a contractor subject to § 701 must "institute and maintain a program for achieving the objective of a drug-free work force." 48 C.F.R. § 252.223-7004(b). While the regulations allow the contractor a great deal of discretion in defining program criteria, the program must contain certain provisions, or appropriate comparable alternatives "designed to achieve the objectives" of maintaining a drug-free work force. Id. § 252.223-7004(b), (c).
One of the required provisions is a drug testing program "for the use of illegal drugs by employees in sensitive positions." Id. § 252.223-7004(c)(4)(i). Employees in sensitive positions include those in positions "that the Contractor determinesinvolve national security, health or safety, or functions . . . requiring a high degree of trust and confidence." Id. § 252.223-7004(a)(1). AO has determined all of its employees work in sensitive positions, and are subject to drug testing, because all employees have access to areas of the plant where they can "come in contact with explosive compounds. . . ." As one AO official stated, "[W]e build things that kill people."
Welcher began working for AO in 1968. Welcher worked in munitions production, and his work took him into areas containing explosive compounds and "physically sensitive" materials. As with all other employees, AO determined Welcher worked in a sensitive position and was subject to drug testing.
During his time at AO Welcher submitted to random drug tests. In 1999 a random drug test of Welcher was positive for amphetamine/methamphetamine. Welcher attended mandatory counseling and, after passing a subsequent drug test, was cleared to return to work. In 2000 another random drug test of Welcher was positive for amphetamine/methamphetamine. Three confirmatory tests were performed. All were positive, and Welcher was terminated from employment.
Welcher sought unemployment compensation benefits, but was found ineligible on the basis he had been discharged for misconduct. Welcher successfully challenged the denial of benefits. He then filed suit against AO under Iowa Code section 730.5 (2001), which sets forth requirements for private sector employer drug testing and creates a civil cause of action against employers violating the section. Welcher alleged the 1999 and 2000 drug tests failed to comply with section 730.5, and that his termination was accordingly wrongful. He sought equitable relief, including reinstatement and back pay, as well as damages, attorney fees, and costs.
Welcher also asserted AO violated chapter 91A, the Wage Payment Collection Act, and chapter 91B, governing employee access to personnel information. To the extent these claims are asserted independently of the alleged section 730.5 violations, their dismissal has not been raised as an issue on appeal.
Following a non-jury trial, the district court dismissed Welcher's petition. The court concluded AO's drug testing program was governed by the above-noted federal regulations rather than section 730.5, and thus section 730.5 did not provide Welcher a civil remedy. Welcher appeals. He contends section 730.5 does apply to the drug testing at issue in this case, and AO's failure to comply with section 730.5's requirements entitles him to a number of civil remedies, including reinstatement and back pay. II. Scope and Standards of Review.
"[F]or the sake of being thorough" the district court also determined that (1) Welcher would be time-barred from asserting a claim for the disciplinary action taken against him in 1999, (2) the 2000 test substantially complied with section 730.5 and could serve as a basis for Welcher's termination, (3) AO acted in good faith, (4) a claim under section 730.5 would not be preempted by federal labor law and the collective bargaining agreement, and (5) Welcher's alleged damages consisted primarily of front pay and section 730.5 did not provide for an award of front pay. Welcher also challenges these determinations. In light of our resolution of the state law versus federal law question, we do not address these issues.
Welcher's section 730.5 claim was tried to the district court in equity. Accordingly, our review is de novo. See Iowa R. App. P. 6.4. While we give weight to the district court's fact findings, we are not bound by those findings or the court's legal conclusions. Iowa R. App. P. 6.14(6)( g); Rouse v. Union Twp., 530 N.W.2d 714, 716 (Iowa 1995).
III. Discussion.
Section 730.5 permits drug testing of private sector employees, sets forth requirements for such testing, and provides for enforcement through a civil action. See Iowa Code § 730.5(3), (4), (15). By its own terms, however, the entirety of section 730.5 "does not apply to drug . . . tests conducted on employees required to be tested pursuant to federal statutes, federal regulations, or orders issued pursuant to federal law." Id. § 730.5(2). Like the district court, we conclude Welcher was an employee required to be tested pursuant to federal regulations, and thus does not have a civil remedy against AO under section 730.5.
AO's right to run the ordnance plant derives from its contract with the DoD. The contract requires compliance with 48 C.F.R. § 252.223-7004, including its requirement for drug testing of "employees in sensitive positions." Id. § 252.223-7004(c)(4)(i). AO has determined all its employees, including Welcher, are in sensitive positions, as all have access to dangerous materials.
While Welcher contends AO should not be allowed to make such a sweeping generalization, the regulations clearly vest the contractor with broad discretion in determining which employees are in sensitive positions. See id. § 252.223-7004(a)(1). Moreover, we conclude such a designation was appropriately applied to Welcher, as he did have access to and occasionally handled explosive compounds. An employee with access to explosive materials has the potential to impact the safety of fellow employees. It is reasonable for an employer to require that such an employee be one in whom it can place a high degree of trust and confidence.
Because Welcher was an employee in a sensitive position, his drug testing was required by federal regulation. Id. § 252.223-7004(c)(4)(i). The Iowa legislature has expressly determined such testing is not governed by section 730.5. Iowa Code § 730.5(2). Accordingly, Welcher does not have a civil remedy against AO for alleged violations of the section. The district court did not err in dismissing Welcher's petition.
AFFIRMED.