Hold Alcoholic Worker to Job Performance Standards

Question: We employ a salaried, full-time employee who has an alcohol-abuse problem. The company has offered treatment assistance in the past, and two years ago we granted an extended absence, at full pay, for the employee to seek treatment. The employee, however, has not followed up on her part of the treatment. We had been experiencing many incidents of not being able to rely on her attendance, nor on her performance on days when she came in with a hangover. The subsequent warnings regarding her poor performance have focused on that, and alcohol has not been mentioned. Please advise on how this employee can be terminated without any legal reprisals.

Answer: The Americans With Disabilities Act (ADA) prohibits discrimination in employment based upon a disability, and the act considers alcoholism to be a disability. The ADA further provides, however, that alcoholics may be held to the same job performance standards and disciplinary rules as other employees. Thus, you should not be deterred by the act from terminating this employee based upon performance reasons.

It will be important, however, that you be able to objectively document this employee’s specific performance deficiencies in order to most effectively defend any discrimination lawsuit she might bring. You should have evidence indicating, for example, each incidence of absenteeism or tardiness, or each example of poor performance. Terminations based on vague or merely subjective grounds, such as “poor performance” or “bad attitude” are more difficult to defend in court. Even if you have documented specific incidents of performance or attendance problems, you must make sure that you have not allowed other employees with similar problems to escape discipline.

Unfortunately, there can be no way of ensuring that a lawsuit will not result from an employee termination. Many groundless lawsuits are filed, or threatened, by ex-employees in a hope that a business will prefer to pay a settlement rather than a fight. If you have your case well-documented, however, and you are sure you have not allowed other employees to get away with the same problems, you should proceed with the termination confident that even if a lawsuit results, you will be in a position to win it quickly and relatively cheaply.

--James J. McDonald Jr., attorney

Fisher & Phillips

law instructor, UC Irvine

*

Question: I work at a grocery warehouse in Los Angeles County. New Year’s Day is a paid holiday at our company and, like most businesses, we celebrated it on Monday, Jan. 2, this year. I responded to my employer’s request for volunteers to work that day. When a person works on a holiday, is there a government requirement that he be paid double-time rather than time and a half for the hours worked on the holiday?

--T.D., Long Beach

Answer: No. Since you worked on Monday, Jan. 2--the company-observed holiday--you certainly are entitled by California wage regulations to be paid for all hours worked. There would also be an overtime obligation of 1 1/2 your regular rate if you worked beyond eight hours, up to 12 hours.

Any further pay requirement would be determined by the company’s past practice, policy or contract. Some employers assign another day off with holiday pay. It also isn’t unusual to have the employee receive pay for time worked with an additional eight hours of holiday pay--this is often confused as double-time pay.

There are some employer plans that say if a holiday is observed by the employer on a day the employee ordinarily wouldn’t be scheduled to work, such as on a weekend, the employee will be ineligible for holiday benefits for that holiday. Ultimately, your employer’s plan will determine your holiday pay requirements, not state or federal regulations.

--Elizabeth Winfree-Lydon

senior staff consultant

the Employers Group

*

Question: I have been working in an office for five years, two days a week. I was hired as a self-employed person doing secretarial work, and at first the work took only about eight hours a week. For the past three years, I’ve worked about 16 hours a week but am still required to be self-employed.

My work requires shorthand and computer skills, all at the direction and under supervision from my employer. A friend recently told me that if the IRS was aware of this treatment, my employer could be in trouble for not paying State Disability Insurance, unemployment tax, etc., for me. Is this correct?

--L.O., San Juan Capistrano

Answer: Your friend is probably correct. And, the IRS is not the only agency that might have an interest.

The creation of an employer-employee relationship triggers a number of tax and reporting responsibilities. Some of those, such as unemployment and disability obligations, are for the benefit of the employees. There is an incentive to evade those responsibilities by keeping some personnel “off the books” and calling them self-employed or independent contractors. The taxing authorities determine whether an employer-employee relationship exists on a case-by-case basis, by looking at a number of factors. The most important is the extent to which the employer controls the work of the “employee.”

In your case, the number of hours worked per week, and the variation in those hours from week to week, might also be considered.

--Calvin House, attorney

Fulbright & Jaworski L.L.P.

adjunct professor, Western State University College of Law