Reacting to Information Regarding Illegal Drugs at Work
There are an endless number of ways employers can handle reported information regarding theft, drugs or other serious forms of crimes against a business, or employee misconduct in the workplace. Our experience shows us that most of them are wrong.
The typical scenario goes something like this: an employee’s wife contacts the company’s HR department alleging her husband is involved in substance abuse on the third shift at work. She has the names of two coworkers from whom he’s been buying crystal (methamphetamine), and she thinks it’s wrecking his life as well as hers and those of their children. She’s concerned about his health and his financial problems, but terrified he will find out she made the call to his employer, and asks for anonymity.
How should you handle her information? Select one of the answers below:
- Call in the husband, confront him with the fact you have an anonymous source of information that says he’s been involved with drugs at work, and order him to take a drug test.
- Call in all three suspect employees, separately, and confront them one-by-one, hoping for a confession or two, pitting them against one another until all are truthful or at least implicated by others.
- Publish a strong memo announcing the company has a “zero tolerance” for drugs and alcohol in the workplace, and begin a new program of random testing.
- None of the above.
If you answered “4,” you’re ahead of the pack.
Let’s go through the three “typical reactions” (1 through 3):
Only two things can come from confronting the implicated employee based on information provided from a source such as a wife or concerned co-worker:
He confesses to using drugs at work, in which case:
- Ordering a drug test could be viewed as superfluous and unnecessary in the light of his confession.
- You can’t force him to reveal the sources of his drugs and, statistically, he is unlikely to volunteer this information to management.
- You may be able to take corrective action against this suspect, but the dealers from whom he buys drugs at work would go unscathed. After the interview, they would immediately receive notification from the “user” they must be extremely discreet in their operations, now that management is “on to them.”
He denies having been involved with drugs at work, in which case:
- You may or may not have grounds to order the drug testing, depending heavily on the verbiage of your personnel policies. If he isn’t showing outward signs of drug abuse, and sometimes these are difficult to detect by non-experts, you could subject the company to litigation, especially if he should pass the test.
- Sending a drug abuser for testing is never a bullet-proof answer, due to the fact many people carry clean, testable urine in containers easily purchased over the Internet. These are carried in a manner which raises the temperature of the urine to within an acceptable range of temperature to fool even the best labs.
- You have clearly let him know that management is aware of his involvement; word will spread very quickly and the problem will go “deeper underground” where detection becomes more difficult.
- You have also made it very clear management is unable to prove the allegations, and he is comforted by the fact you were powerless to take action against him without his confession. Word travels about the workplace that denial of involvement is rewarded by management’s inability to act.
Calling the suspects into meetings, separating them and interviewing them about their possible involvement with drugs, and hoping for confessions is not a good idea because of the potential for disastrous results. You may get lucky, and you may have been very good at talking with people and getting to the truth, but the potential for a negative outcome usually outweighs the chances for success, especially when dealing with serious criminal activity.
Suppose two of the three suspect employees tell the truth; they were involved in the distribution, purchase and usage of illegal drugs at work, but the third gives an absolute denial.
- Terminating an employee without a confession or additional conclusive, “impartial third-party” evidence can lead to unwanted litigation. You could be forced to put ex-employees into arbitration hearings in which they would be asked to testify against one another, only to have them plead the 5th Amendment and refuse to testify on the grounds they could implicate themselves in criminal liabilities.
- An arbitrator could believe the lone suspect was unfairly implicated by co-workers with ulterior motives or hidden agenda, and could force you to reward a guilty drug dealer with reinstatement and back pay.
- You would end up punishing people for telling the truth and rewarding the other for being dishonest; this message would be carried loudly and clearly to the other employees by the “survivor.” Future investigations could be negatively impacted.
Immediately upon learning of potential drug issues, most employers are tempted to announce the company has a “zero tolerance” for drugs and alcohol in the workplace, and to begin random testing. While it seems to make logical sense, on the surface, this approach can unnecessarily delay or prevent the actual solving of the problem.
- Drug tests often do not reveal whether the drugs were used at work or off company premises during one’s free time. Tort law, especially in the more liberal states such as California, Massachusetts and Vermont, has leaned toward giving employees the benefit of the doubt in such cases, telling employers they have no right to control behavior away from work unless that behavior gives probable cause to suspect drug abuse through work performance, accidents or absenteeism and tardiness. Having been randomly selected for a drug test does not speak to performance issues in the least, and employers have failed in their efforts to take punitive action based solely upon failure of random drug screening.
- Drug tests do not reveal the source of the drugs. If illegal drugs were purchased at work, dealers selling them usually escape detection when the “customers” of the dealers are terminated for failing drug tests. Some dealers are drug-free individuals who sell drugs solely to make extra cash, so they have nothing to fear from drug testing.
- Everyone already knows using, selling or possessing illegal drugs at work is an offense for which the company can take punitive action, up to and including termination. Sudden re-publication of the drug policy with great emphasis on the penalties for drug usage at work simply tells the work force that you are acutely aware some of them are “using and abusing.” This gives them decided advantages in your ability to detect their activities; “forewarned is forearmed.”
When serious employee malfeasance is first suspected, most employers have the same immediate reaction: “We’ve got to stop this right away! Put out a memo and tell the whole work-force we won’t tolerate drugs, and if we discover they’ve been involved with drugs at work they’ll be terminated.”
Then, after they’ve very blatantly motivated their employees to lie to the company about any potential involvement, they bring suspects “onto the carpet” and question them. The results are usually equally frustrating to management and to the interviewees who usually “lie and deny” under these conditions. The real problems in the work place have thus been forced deeply underground, and the burden of proof falls back upon a largely “empty-handed” company in the absence of a confession. Even with “at will” work agreements, litigation is often triggered when people are disciplined under such circumstances.
There are more effective ways to approach serious employee malfeasance. Excellent proof is nearly always available, but often it takes a brief period of patience, an appropriate investment of time and money to “flesh out” the facts, and the help of professional workplace investigators.
Every situation is unique, as is every corporate culture and every management-labor dynamic. A competent contractor specializing in workplace investigations will ask a lot of questions before prescribing an investigative solution to any client’s suspected problem.
Often, undercover investigators can be placed into the workforce inconspicuously, blending effortlessly and seamlessly into the fabric of your own corporate demographics and culture. If most of the employees involved in the suspected malfeasance are white females, for instance, a good choice would be to use a white female investigator. If the work areas inhabited by the suspects are primarily staffed with Hispanic males, the investigators sent to infiltrate these places should be the same.
If the investigation is supervised by your legal counsel, under the direction and umbrella of the attorney-client privilege, the findings of the investigation can usually be sheltered from unwanted third-party scrutiny. At all times, the client and attorney are in charge of the length and breadth of the investigation, and the communication between them and their licensed, qualified workplace investigators should be frequent and excellent.
When the investigation culminates in conclusive information from reliable, totally disinterested, outside investigative contractors who can competently testify under oath to their findings, the success of the case is much less dependent upon confessions from those involved.
Often, the undercover operatives are able to actually purchase illegal drugs from suspects at work; this is done with the cooperation of local authorities. Purchasing of illegal drugs by licensed investigators can only be done with the police, so it should only be undertaken when the company and its counsel have made an affirmative commitment to prosecute drug offenders who sell illegal substances at their workplaces.
When their work is done and the client is in possession of the provable facts, the pressure is off, so to speak. They can then prove what happened, even in the absence of the confessions from suspects. However, it doesn’t stop there.
They often end up with both substantial investigative proof, and a hand-written statement from the suspect employees admitting to the malfeasance. The highest echelon of professional investigators has superior interviewing skills, resulting in confessions in more than 90% of the interviews in which suspect employees were previously caught, and properly documented in violation of company policies at work.
The astounding success rate of professional investigator-suspect employee interviews could logically give rise to suspicion that overbearing or abusive techniques are used. Quite the contrary, these interviews are conducted with a disarming amount of respect, creating a comfortable atmosphere in which the confession seems appropriate and reasonable to the suspect. To assure no coercive force was applied, voluntary tape recordings are obtained with the permission and knowledge of the suspected employees. A plethora of questions are asked to fully establish the true nature of the interview. These tape recordings are also attorney-client privileged documents, and they become great evidence that the confessions were absolutely voluntary.
A competent investigation firm would never give a client advice as to how it should react to a completed investigation. How a client handles the investigative results is between that company, its labor and employment counsel, and the employees involved. But when professionals provide the proof, employers are fully empowered; they are placed firmly “in the drivers’ seat” to handle these problems in any manner they see fit, and the specter of litigation is greatly reduced.