We had a customer call our office and ask us if we did random drug testing of our employees. We said we do not, and he told us that if we did, one of our employees would not pass and went on to describe that employee. We asked if something happened while he was a customer here, and he said, “No—it happened off of our work site.” He only gave his first name. Do we have an obligation to tell our employee about someone calling us and saying this or do we just let it be, since he did not give his last name? We just don’t know if we are somehow obligated to that employee to tell her that this call was received by us. —Anonymous
This essentially anonymous tip that an employee is using drugs away from work is certainly one of the last calls an employer hopes to receive, but it likely does not generate any legal duty to inform the employee of the allegation. On the other hand, you should not open yourself up to liability if you do decide to inform the employee. In other words, if an employer receives this type of call, it can freely choose whether or not to tell the employee that someone has accused her of using drugs. The employer should, however, refrain from informing anyone else of the phone call so as to avoid a possible defamation claim.
Although the basic answer to the question is simple, the situation you describe raises a number of other questions. For instance, an employer might wonder whether the phone call triggers an obligation to take action to protect the safety of customers or co-employees. All employers must provide a safe environment for employees, customers or other people invited by the employer who might come into contact with employees. Thus, if an employer knows or reasonably should know that an employee is likely to present a danger to customers or co-employees while working, it must take steps to reduce the likelihood of harm.
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In the situation presented by the question, however, there does not seem to be any reason to believe that this employee—vaguely accused of using drugs away from work—presents a danger to anyone. We do not have any indication of what type of drugs she may be using, we have no facts to show that she is using them at work, and we have no other information that might lead a reasonable person to believe the employee is dangerous.
Indeed, given that the caller was not willing to give his last name or other identifying information, it is hard even to argue that the employer should assume the caller was telling the truth. California courts have held that a co-worker’s mere suspicion that an employee is a drug user is not enough to impose liability on an employer if that employee hurts another. It is only when the employer has more concrete evidence of the employee’s propensity for violence that liability for an employee attack might attach to the employer.
In the end, the employer is the best judge of the employee’s behavior while at work, based on experience and observation. If there is nothing in the employee’s behavior to suggest dangerousness, the employer is likely under no obligation to take special precautions to protect others, beyond following its normal procedures to ensure a safe workplace.
Another concern that an employer may have is that if the employee uses drugs, then there is an increased likelihood that the employee will cause accidental injury. An employee’s intoxication while working will not shield an employer from liability for accidental injuries to customers or members of the general public caused by the employee’s actions taken in the scope of her employment. Again, however, the employer’s observations of this employee are probably the best indication of her work habits and responsibility, rather than an isolated anonymous suggestion by a non-employee about off-work drug use.
An employer receiving the kind of call described in this question might wonder whether it can or should drug test the accused employee. The answer is probably no, based on the call alone. Drug testing implicates an employee’s right to privacy, and an employer needs to be sure that it has adequate grounds—along with appropriate policies—to justify an invasion of an employee’s privacy right. Even if the employer has a policy that allows it to test employees if there is reasonable suspicion of drug use, the telephone call alone does not likely rise to the level of reasonable suspicion.
In sum, your best course of action probably is simply to observe all of your employees, including the employee in question, to see whether there is evidence of intoxication on the job, or whether there are facts to show that an employee otherwise presents a danger to others.
Sandra Rappaport, Esq., is a partner at the San Francisco office of the law firm Hanson Bridgett LLP. Christopher Walters, who helped prepare this answer, is a summer associate at the same firm.