Provided by: Judge Ruth B. Kraft

THE SCENARIO: Assume that your company’s CEO has long been suspected of being a heavy drinker and taking illegal drugs. Concerns have been raised by employees that he was under the influence while on the job and media reports linked him socially to known drug dealers. However, he denied all allegations emphatically and repeatedly and there was no competent evidence, as I used to say on the bench, to the contrary. However, recently, when confronted, he told the press that he “might” have snorted cocaine while in a drunken stupor but states that he has his life back under control. Assume further that revenues have doubled during his tenure and that he is well liked by your employees and clients. What do you do?

1. INVESTIGATE: Begin by creating a team which will interview workers and obtain evidence. Ask the CEO for an interview as well. His employment contract likely requires him to cooperate with the investigation. (If it doesn’t, then I didn’t write it!) If he admits to drug use while in the course of employment, the path is clearer than if the use was recreational while off the job. Of course, both are illegal but for the purposes of employment law, courts have drawn the distinction. If there is any contradiction between what he tells the team and prior written statements, there may be a case of falsification of employer records.

2. OFFER HELP: Whenever there is an issue of alcoholism or substance abuse, it is wise to offer (or mandate) the involvement of the Employer Assistance Program. If you do not have an EAP, then a documented offer of assistance to help him find the appropriate professional treatment is wise.

3. DECISION MAKING: If your investigation reveals that he has used drugs while at work, you have the easiest situation and he should be dismissed for cause. If you are only able to establish alcohol use, know that alcoholism, if acknowledged, is a disease which falls under the Americans With Disabilities Act. A mandated leave of absence and successful completion of a treatment program, rather than discharge, will protect you against a wrongful termination or breach of contract suit. However, no second chance at this level need be offered---if he falls off the wagon, he is finished. You should also be speaking to counsel throughout the decisionmaking process. If the CEO is terminated for cause, then the severance provisions of his contract may be inapplicable and you can rid yourself of him without continuing financial obligation. Thus, it is extremely important, under those circumstances, to build your record to emphatically support a dismissal for cause. Note also that executives are held to a higher level of accountability in terms of breach of trust than assembly line workers.

When I was a law professor, I created hypotheticals like this all the time. Sadly, this wasn’t a hypothetical but based on the recent conduct of Toronto’s mayor. I would not want to be his lawyer! It is sad to see someone deteriorate in the eyes of the public but, I must say, tragic and embarrassing for that wonderful City, its residents and businesses to be in the spotlight as fodder for late night comedians.

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Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.