“I meant, are you in here for drugs?”

December 16, 2013 - by: David Kim 0 COMMENTS

Drugs are no laughing matter, except of course when it comes to the referenced exchange between Charlie Sheen’s character and Jeannie Bueller in Ferris Bueller’s Day Off. Yet, when it comes to our celebrity news cycle, drug use is as prevalent as steroid use has become in baseball.

The latest scandal involves Nigella Lawson, most well known as a food writer and television personality for a variety of cooking shows, including the currently running The Taste on ABC. Now, I’m neither a foodie nor a reality TV junkie. In fact, the only reality TV shows I watch are Top Chef, where half the time I have no idea what ingredients they are referring to, and Shark Tank, because I find it entertaining when Mr. Wonderful blasts an entrepreneur’s terrible business idea. And while I had never heard of The Taste, and barely knew of Nigella Lawson, the recent headlines involving her life have come front and center and have taken on a soap opera-ish feel.

Let’s recap. Earlier this year a photograph surfaced showing Charles Saatchi, Lawson’s husband, choking her at a London restaurant. They have since divorced. Saatchi then sued two sisters who worked as personal assistants for him and Lawson for fraud, alleging that they spent over a million dollars on designer clothes and first- class travel using credit cards supplied by the couple, which were only to be used for household expenses. Recently, it was revealed that the sisters’ defense is that they were aware of Lawson’s constant drug use and had an understanding with her that they could freely use the credit cards in exchange for their silence regarding her drug use both to the public and to Saatchi. Earlier this month, Lawson took the stand in this case and admitted to taking cocaine and smoking cannabis, but denied that she was a habitual drug user. The fraud trial is ongoing in a London court. Got all that?

While the employer-personal assistant is unique in many ways, and the lawsuit involved is one for fraud, there is an interesting question of what happens when an employee reports an “employer” is using drugs. Of course, most employers have workplace policies prohibiting the use of drug and alcohol in the workplace and employees who violate such policies are subject to discipline, up to and including termination in most cases. In addition, employers should be aware that under certain circumstances alcoholism and drug addiction can be a disability under federal and state law and must be accommodated if reasonable.

However, when an employee reports that an employer is using or abusing drugs in the workplace, certain whistleblower state statutes can be implicated. Under those statutes, “employer” is often defined broadly to include individuals acting on the company’s behalf, and in some cases can extend to supervisory or managerial positions. Therefore, when an employee reports to his or her employer that a supervisor, executive, or officer is using drugs in the workplace, this could be considered protected activity under certain state whistleblower statutes and therefore could provide a basis for any lawsuit if that employee is subsequently disciplined or terminated. The situation could ultimately result in employer liability if it is found that the discipline was causally connected to that employee’s reporting of illegal drug use. Each state’s whistleblower statute is different, and there are also federal whistleblower statutes for certain industries, so whether something more is required than merely reporting drug use to constitute protected activity will depend on the statute in question.

Of course, if everyone followed Nancy Reagan’s mantra to “Just Say No,” such issues would not exist. Yet, we all know that the reality is much different. Therefore, the safest route is to take allegations of workplace drug use seriously and to not take adverse employment actions against employees who, in good faith, report it.

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