Dear Atty., Should I Fire My Star Salesman?

“Dear Atty.” is a new column aimed at answering employers’ legal questions that surround issues in human resources. Atty. Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions through for future editions of “Dear Atty.”

Dear Atty.,

Please HELP! I am currently sticking my head in the sand to try and avoid this situation, but fear I am setting my company up for a lawsuit. Due to our industry (pharmaceutical sales), we have all employees participate in random drug testing. Three months ago, I had to terminate an employee who failed her drug test.BusinessmenAirportEscalator_copy

Recently, our top salesman of 15 years attended a conference in Denver and, upon his return, he tested positive for marijuana. He has shared with me that, during his free time, he tried some marijuana-infused candy given that it was legal in the state of Colorado. He is a very loyal and extremely productive employee and I don’t want to fire him. What should I do?

Rocky Mountain Hire

Dear Rocky,

Well, that certainly is a buzzkill. There is, however, no reason to avoid the situation, as I am sure we can find a solution.

Let’s start with the legal issues regarding drug testing, in general.

The Law: Private sector employers have substantial leeway in implementing and administering their drug testing policies. Public sector employers, on the other hand, are covered by Constitutions and, as a result, need to be concerned whether their drug testing policy violates the 4th Amendment prohibition against unreasonable search and seizure. Private sector employers are not covered by the Constitution and, therefore, do not have the same concern.

Given this leeway, most employers have drug testing policies that allow them some flexibility regarding how to treat a first-time violator (i.e., suspension, treatment or termination, for example). I am assuming that your policy has similar flexibility. With that said, an employer still needs to apply its drug testing policy fairly to all employees regardless of race, gender, age, etc. This may be an issue in this situation and we will discuss it in a minute.

Another legal issue that may not have been readily apparent to you arises from a Wisconsin law that gets very little attention.

The Law: Wisconsin is one of a handful of states that has a law that prohibits discrimination against any individual based on their use of lawful products off the employer’s premises during non-working hours. For example, an employer in Wisconsin cannot fire an employee for smoking cigarettes (a lawful product) on their own time away from the workplace.

In your situation, your employee could assert that he is covered by this law. He could argue that he was using a lawful product (the marijuana candy) away from the workplace and on his own time. The interesting issue in this situation is whether the law’s reference to “lawful product” applies to the lawfulness of the product in the state in which it was used or the lawfulness of the product in the state in which the employer does business. Unfortunately, the law itself is unclear on this issue and no courts have addressed it. So, in theory, your employee could at least have an argument that he is protected by this law.

So, by now, you probably are saying to yourself, “enough about the law, what should I do?” Good question. You don’t want to fire your star salesman and I don’t believe you need to. The major issue in this case is that you recently fired a female employee who failed her drug test. I’m sure you are concerned that the female ex-employee could bring a claim for gender discrimination based on the allegation that she was treated less favorably than a similarly situated male employee. The problem with her claim, however, is that she and your male employee are not similarly situated. Your male employee did not break the law by eating the marijuana candy in Colorado. Your female employee, on the other hand, did break the law. Looking at the big picture, the reason why most employers adopt drug testing policies is to deter illegal drug use by their employees. It seems reasonable to be lenient in the application of the policy if the drug use was, in fact, legal – – as it was in this situation.

So, Rocky, I don’t think that your salesman’s career with your company needs to go up in smoke; you can make a strong argument for not firing him. I would, however, explain to him that the only reason he escaped termination was due to the unique circumstances of the situation. Impress upon him that, next time, the high will mean goodbye.


By Pete Albrecht, Attorney from Albrecht Backer Labor & Employment Law, S.C.

If you would like additional information about this topic, please contact Madison, Wisconsin attorney . Pete is the president and a shareholder at Albrecht Backer Labor and Employment Law. He has represented employers for over 28 years.

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