[familyguy]

So our #2 guy in our maintenance crew is a drunk.

That is how things roll in life sometimes.

One of my other guys is pretty severely ADD and needs meds as he can't concentrate on 1 thing for more than 38 seconds before he is distracted and has to be redirected.

Another one is an incredibly valuable mechanic but in 4 months has almost died in a crazy stunt on a motorcycle, gone to the hospital for trying to lift something like a young superman he thinks he is and crushed his hand, etc..

I am trying to paint a picture of a crew of not perfect people, we all have them. Our industry is full of folks with learning disabilities (did poorly in school and went into the labor indusrty), folks with substance abuse problems, and people who never had the social skills to hold down more professional careers.

Back to my drunken idiot. Last Friday we sent him home because he was still visibly drunk in the morning. Can't go sending him driving around in a truck for obvious reasons. Can't let someone drunk work power equipment or tractors for the same reason. Also, lets not overlook the reduction in quality of his work. He has come in hung over many times. We have always looked a that like, well, too bad for you.... It will make for a tough day for you..., etc..

Here is the issue I am getting to. We can't tell when he might still be drunk. What are the legal issues involved with setting up some kind of test to see if his blood alcohol level is such that if he was to get pulled over we wouldn't be up the ol bad creek without the paddle? Where is the fine line?

I would just fire the guy if he was the #3 or #4 but he is the #2 because he is a good worker, even hung over, can run the crew whenever the #1 isn't around. If the #3 guy could do that job I would have no problem and no post here.

I am willing to deal with his alcoholism as long as it doesn't create a potentially dangerous situation for other people.

[Stonehenge]

Great question, and one I'm not qualified to answer - but there is a member here who may be - contact Helios. He's either an attorney or used to be one, and can probably give you some direction.

Shooting from the hip, you will probably have to institute some kind of company-wide program of random testing so that you aren't singling out this one person, even though this one person may be the only one with an issue. And you may need to get each employee sign off on allowing you to test. (And those that don't, you may have the freedom to let go - though it doesn't sound like that's what you're after.)

[dan deutekom]

The occasional hangover can be overlooked because we all like to party now and then and once in a while we over do it. It takes roughly 1 hour for a drink to leave your system. So if you have been drinking all night until 1 am you can bet that you are still legally drunk at 7 am. If this guy is coming in still drunk, he has become a major liability that could cost you your business!!!!! Get him off of the equipment NOW!!!! Sit down with him and explain that he must seek treatment and that you will help him with this anyway you can. If he dosn't want to do this then it is time to cut him loose. Your well being depends upon it as well as his co-workers and your customers.

[WarrenTree]

I own (with my husband) and tree and landscape business - translation, lots of great big palm trees swinging through the air held by straps, chains, etc.

I also do HR and business consulting, and was a manager for a major utility for many years - dealing with HR issues.
The previous post, stating that you will probably have to institute something throughout your organization is right on if you're talking about something like drug testing (or similar for alcohol).

The big question for you should be liability!! If you know there is a problem, and you don't either help him resolve it (get him counseling, assistance, etc) and institute an EFFECTIVE program for monitoring him - you are opening yourself up for a huge liability! If an accident occurs, even if he wasn't drinking or drunk at the time, you are in deep you-know-what!

Whatever you decide to do, you need to begin addressing it now! Talk to him about the problem, document in writing what you are doing to resolve the issue - maybe even send him home for a couple of days without pay on what we used to call a 'decision making leave'. Either way, the longer you wait to formally address the issue, the wider the opening for him to cost you big.

[TrickyDick]

If an accident occurs, even if he wasn't drinking or drunk at the time, you are in deep you-know-what!

Why?

[WarrenTree]

You might not ultimately he held liable for his actions, but the cost of defending yourself against a lawsuit will be tremendous, and if the complaintant can prove that you knew the employee had a problem, and didn't take action to stop it - you could be considered neglegent.

Also, alcohol gets out of your system much faster than any other drug - so unless he is tested immediately after an accident, you really have no way to prove he wasn't drunk. So, a jury might look at it like you know you have an employee with a drinking problem (sometimes at work drunk), you've done nothing to stop it, and now there's been an accident and you don't have proof that he wasn't drunk at the time...

In this day and age, everything you can do to prove you are not negligent, you should do. People are just looking for a reason to sue - and even if they don't win, it costs you big in time and money.

[Greensmith]

A friend of mine had a very similar problem TWICE. The first time he was so legally restricted from firing the guy he had to implement company policies to show substance abuse wasn't accepted. Then he had to send the offender to rehab (or offer it) then suspend, then terminate.

The second person was much easier to do since the policies were in place and he verbally warned him then fired him for the second offense.

[familyguy]

i appreciate all the feedback, however, i think it is a bit of a stretch to suggest that someone pursuing a lawsuit against me could argue that an employee of mine was drunk without physical proof simply based on his past behaviors. that wouldn't fly. i suppose if he mowed over the foot of another employee who might have realized he was hung over, maybe.

how can anyone be responsible for someones blood alcohol level, or possibly their being under the influence if you don't know they are high/drunk? maybe your busy in the morning and you miss the signs, the crew heads out and 10 minutes down the road the truck and trailer are in the ditch on the side of the road? how is possible for the employer to be liable? what protects any of us from that?

greensmith - btw, in my state you need no cause whatsoever to fire someone. you do not need to provide a reason. you can simply say bye bye and that is that.

[Fine Edge]

I've had the "pleasure" to work with alcoholics before and how do you know that he isn't packing a few beers in his cooler for during the day? Maybe the other crew members don't want to rat him out?
In my experience, the alcoholics I've worked with usually need a "pick-me-up" during the day.
Do you ever stop by the jobsite or catch up with that truck during the day to ransack it and look under the seats, etc.. to find signs of empty cans, bottles?
Do you have a dumpster at your shop where someone can empty out a cooler or throw away empties at the end of the day when you're not around?
One crew I was working with could only stop at a certain brand of gas station on the way home because they wouldn't itemize purchases and the 12 pack looked like it was part of the gas purchase.

Just stating things I've seen in years past.

[Fine Edge]

Plus, alcohol leaves an unmistaken scent when consumed in larger quantities especially when you start sweating the next day.

I hope he doesn't have to talk to the customer.

[dan deutekom]

Originally Posted by familyguy

i appreciate all the feedback, however, i think it is a bit of a stretch to suggest that someone pursuing a lawsuit against me could argue that an employee of mine was drunk without physical proof simply based on his past behaviors. that wouldn't fly. i suppose if he mowed over the foot of another employee who might have realized he was hung over, maybe.

how can anyone be responsible for someones blood alcohol level, or possibly their being under the influence if you don't know they are high/drunk? maybe your busy in the morning and you miss the signs, the crew heads out and 10 minutes down the road the truck and trailer are in the ditch on the side of the road? how is possible for the employer to be liable? what protects any of us from that?

greensmith - btw, in my state you need no cause whatsoever to fire someone. you do not need to provide a reason. you can simply say bye bye and that is that.

You can bet that if there is a serious accident the employee will be checked for alcohol. That is pretty standard procedure. Your posts here are an acknowledgement that you know there is a problem and lawyers are good at ferreting out this type of information from friends, employees and clients. And by most laws you are responsible for your employees when they are on the clock representing you. You must stop enabling this person and protect yourself. This is not an issue of IF something bad happens but WHEN it happens.

[jshilan]

Originally Posted by familyguy

how can anyone be responsible for someones blood alcohol level, or possibly their being under the influence if you don't know they are high/drunk? maybe your busy in the morning and you miss the signs, the crew heads out and 10 minutes down the road the truck and trailer are in the ditch on the side of the road? how is possible for the employer to be liable? what protects any of us from that?

greensmith - btw, in my state you need no cause whatsoever to fire someone. you do not need to provide a reason. you can simply say bye bye and that is that.

This is America. You can sue anyone no matter how ridiculous it is. Haven't you heard of the case where a criminal breaks into a house, gets shot by the homeowner and sues the homeowner for unnecessary use of force? (and wins) The people that own the rights to the tv show Family Guy could force you to change your name on this site or sue you for illegal use of a trademarked character name.



I agree with Dan D. The comments that people post on this website can be used as "Exhibit A" in court to show that you were aware of the employees problem but chose to ignore it. We all might now be accomplices.

As far as I know there is not a single state where you can just fire someone because you feel like it (not even in the District of Columbia).

There has been some very good advice posted on this thread and I would seriously consider taking it.

*All of the opinions by jshilan are not necessarily the opinions of Jody Shilan and should not be considered as advice or based on any legal findings. This post, and all previous posts and all subseqent posts are for entertainment value only and should be considered as such. jshilan does not represent any character either living or deceased. The avatar of the Voodoo Blue Toyota FJ is not his actual FJ (he doesn't have foglights) and is only a representation of a Toyota FJ. The Toyota Name, all trademarks and copyrights are owned by the Toyota Company.

[Stonehenge]

Wisconsin is considered an "at will" employment state, where you can fire someone without cause, and in fact, that is far easier than firing them FOR cause. If you give a reason for termination, that's when things get tricky, as far as I know.

In fact, here's some relevant info from our state: Legal Q & A: Legal topics

[Terre]

Having some experience with this, I can suggest a way this could go down. There is an accident of some sort while on the clock. The victims lawyer learns of this person's history, and you can bet, somewhere, somehow, they will. Either a past DUI, or a gabby neighbor, or another employee or disgruntled former employee of yours, something will give it away.

Once the victim's lawyer gets ahold of it, you're sunk. They can put you on the spot asking why you allowed him to work. If you say you didn't notice, you're negligent, since it is your responsibility to either notice and prevent a potential problem. If you say you're no expert, they will say you should have erred on the side of caution. Missing the signs or being busy won't cut any ice with the judge, because it is negligence on your part for not checking on a known potential liability. Your insurance company will run backwards away from you while trying to find a way to weasel out of paying for damages or settle for the least amount they can. One of my kids hit a drunk jaywalker in the dark and even though she never got a ticket and was not in the least at fault, the homeless drunk with nothing more than a broken arm, was found by a shyster, who went after her insurance company, who SETTLED. This homeless drunk actually got money for lost wages because he couldn't hold up his "will work for food" sign with one arm in a cast!

As the daughter of a severe alcoholic, I can tell you, "hair of the dog" is what gets some of them out of bed in the morning. Tomato juice with a shot of vodka and they can face the morning. Until lunchtime, and they have to sneak off to 'run an errand' 'bathroom break' 'pick up a forgotten part' 'make a phone call' 'pay a forgotten bill' SOMETHING is an excuse to get away from the crew. I wouldn't bother searching the truck, they are very very good at being sneaky, and miniatures fit in a boot, pocket, anywhere.

If he is so valuable, impliment ways to CYA. NEVER EVER let him drive or run the equipment, even if he appears sober. If he is sober, he could have the shakes so bad he's still dangerous. If he injures another employee you can damn sure bet that lawyer I mentioned will have all sorts of ammo to use against you. If you have to dock his pay for limiting his duties, make sure he knows why.

I know what it's like to feel loyalty to someone you value. I'm just trying to point out ways he can cost you much much more than he is worth.

And Jody? Colorado is an "at will" employment state. As an employer, I do not even have to give anyone a reason for termination. I can simply say "you're fired". That is what I was told to do by corporate lawyers when working as a subcontractor for the Feds. It was better NOT to give a reason, just terminate their employment. Give a reason, and you can be sued.

Isn't this a lovely world we live in?

[RHPL]

I let one of my best rfriends go over this past winter after have 4 years problems with him. And I can now realize from the previous posts that it was good I got ride of him and should have done it sooner. Especially since his maine roll was as a driver delivering material to jobsites. He always stank everymorning of booze but would always say that he had a 'glass of wine with dinner'. I would find empties all over my yard... hundreds in the dumpster. It wasn't until I found a few in my trucks that I started checking his lunch box everyday. Didn't take long before I saw a few beers in there (although there was always a case in his trunk at the yard) and when I approached him about it he denied everything and said that he was at a party on the weekend and hadn't emptied the extra beers out of his cooler yet. Bullsh!t

Alcoholism aside, a contractor I know was growing his business and was at a stage where he had over 40 employees and was having a tough time keeping on top of things. Productivity was down and he was getting negative feedback from homeowners about the crew members being a little rough looking of acting (he is very high end design construction). He brought in a consultant over the winter to try and make sense of it all. The consultant asked him (and he talked to his PMs and his foreman) to put each employee into one of three categories; The 'A' workers that make his company great, the 'B' workers that are so-so...the ones that may have issues (such as the suspected alcoholics) but you keep them around because you need them and don't know what you'll do without them, and the 'C' workers that he wants to fire but hasn't found a good oportunity to do it.
After all 40 employees were devided up, the consultant went and drafted a letter to be sent to all B and C employees to let them go. He then went on a huge hiring spree and filled all his vacant positions and feels that it was the best thing he could have done.

So fire the Cs as soon as you think they are Cs. At least once a month, talk to your key people to try and figure out if you have Bs around. If you do, then put out some ads and start doing some interviews ASAP.

I think the employee in question is a B... or maybe even a C. Get rid of him ASAFP