Many employers would like to terminate the employment of an employee who is arrested for or convicted of an off-duty DUI, possession of narcotics, or other conduct the employer regards as unbecoming of its business or harmful to its reputation. Even though Minnesota is still an “at will” employment state, an employer will be best protected if its employment actions are reasonably based on performance at work and if the employee is on notice ahead of time that certain actions could result in discipline or discharge. Therefore, discipline or discharge of an employee for off- duty conduct should be related to the job and the workplace and should not occur unless there is no question that the employee committed harmful off-duty conduct. In addition, the employer’s drug and alcohol policy (discussed above), should contain a provision which states that off-duty use or sale of drugs could result in adverse employment action if the off-duty conduct is harmful to the reputation of the employer, is related to the job which the employee is performing, or in some other way is not in the best interests of the employer. Note, however, that Minnesota law prohibits discipline or discharge of an employee based on the employee’s off-duty use or enjoyment of “lawful consumable products,” including alcohol and tobacco245 (for a more detailed discussion of this law, see the section on smoking in this Guide).

Searches for Drugs or Alcohol

Like off-duty conduct, the issue of searches arises frequently in the drug and alcohol context. It also appears in the context of employee theft. Because this is an area loaded with potential liability in the areas of defamation, intentional or negligent infliction of emotional distress and other claims, employers should not conduct searches without first obtaining legal advice on this issue.

If searches are being considered, it is advisable for employers to have a distributed and acknowledged search policy, stating that searches are possible, that certain defined areas are subject to search and that employee cooperation with a search is a condition of employment.

CREDITS: This is an excerpt from An Employer’s Guide to Employment Issues in Minnesota, provided by the Minnesota Department of Employment and Economic Development & Linquist & Vennum P.L.L.P., Tenth Edition, 2009. Copies are available without charge from the Minnesota Department of Employment and Economic Development, Small Business Assistance Office.

This post is also part of a series of posts on dealing with alcohol or drugs in the workplace.

442. Minn. Stat. § 609.27, subd. 1(5) (2007).
443. Minn. Stat. § 181.13(a) (2007).