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Barmettler v. Reno Air Inc.4/16/1998
should encourage such action. It is in the public interest, as well as in Reno Air's interest, that employees who have substance abuse problems be helped to overcome those problems. However, it is also in the public interest that Reno Air be free to terminate its employees in critical positions and not be required to maintain them in their positions even when there is only a suspicion that they cannot perform their duties safely and effectively. Reno Air is free to enter into employment contracts, but we should not lightly hold that they have inadvertently done so.
Shearing, J.
ROSE, J., with whom SPRINGER, C. J., joins, Concurring in part and Dissenting in part:
The claim of breach of contract presents factual issues that should have prevented the district court from granting summary judgment against Barmettler on this issue. The majority opinion ignores our prior case law and substantially erodes an employee 's right to rely on the documents presented at the inception of employment that form the employment contract.
A few days after commencing work for Reno Air, Barmettler received its employee handbook and drug and alcohol policy. We have held that handbooks and statements of policy or procedures received by an employee at or shortly after beginning employment can be viewed as setting forth all or a portion of the contract of employment between the employer and employee . Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983). Viewing these documents in a light most favorable to Barmettler, a trier of fact could conclude that while the employment was, in (general, "at will," it was expressly modified by Reno Air's drug policy. One could reasonably interpret the policy as providing that: 1) an employee's participation in the drug program will be strictly confidential, and 2) the employee cannot be terminated for reasons related to his or her participation in the drug program. If one believes Barmettler's view of the facts, Reno Air violated both contractual undertakings.
Barmettler states that his supervisors disclosed his participation in the drug program to other employees and that a number of coworkers harassed him about his drug problem when he returned to work after completing the program. A jury could find that Reno Air breached its agreement to keep confidential an employee 's participation in the company sponsored drug program and award damages flowing from such breach. A jury could also find that Barmettler was fired because he bitterly complained about the breach of confidentiality and, thus, his termination flowed directly from the breach of contract. Therefore, summary judgment should have been precluded on this claim.
Barmettler's claim that his "at will" status was modified by Reno Air's drug policy finds support in the case of Holmes v. Union Oil Co., 760 P.2d 1189 (Idaho Ct. App. 1988) . In Holmes an employee entered an employer sponsored residential alcohol treatment program and was required to abide by the employer's rehabilitation plan following release from the treatment center. After release and resumption on employment, the employee violated one of the terms of the rehabilitation plan and was fired. The employee brought suit on the basis that the drug rehabilitation plan had modified his status as an "at will" employee and that he could not be fired during his good faith participation in the drug rehabilitation plan.
The Holmes court concluded that the finder of fact could view the rehabilitation program as creating a mutual understanding that employment would continue for the duration of the drug rehabilitation plan absent a termination for cause or the employee quitting his job. Id. at 1194. The
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