Inebriated Supervisor

psrcello

Need a quick answer to this before 10:00 tomorrow morning, and I know I can rely on someone out there!

I returned from a few days vacation today to discover that one of our supervisors was found Monday night slumped over the steering wheel of the company truck. The hourly employee who first spotted this reported it to the night superintendant, and without going into a lot of detail, the supervisor was absolutely hammered, beligerant, and almost ran the shift supervisor over when confronted. He drove off in the company truck and fortunately didn't hurt anyone on his way home.

He was suspended until tomorrow morning, when he'll be meeting with the plant manager, the employee's manager, and me.

The issues: First, we have a "zero tolerance" drug and alcohol policy which applies to rank and file employees (all of whom now know what occurred Monday night).

Second: The supervisor has been here for almost 30 years, and he's a minority.

Third: plant manager doesn't think we should fire the guy, since he's such a long service employee. Prefers that we handle this as an unpaid suspension.

THE BIG QUESTION: I know there's something out there in the FLSA exempt employee definition that states that an exempt employee's pay cannot be docked for disciplinary reasons unless the problem represents a flagrant violation of safety rules - however, I haven't been able to get the DOL website to cough up the specific reference to this - can anybody quote the provision I'm referring to?

THE OTHER REQUEST: - YOUR OPINIONS PLEASE!!! I'm having somewhat of a problem with the apparent double standard of "zero tolerance except if you're a long service salaried employee who happens to be a minority to boot"!

Parabeagle

First, if this isn't a flagrant violation of safety rules, I don't know what is. This guy definitely needs to be dealt with.

Also, I don't believe that "zero tolerance" equals "automatic termination." It is a concept to advise employees how seriously you take infractions of a particular type.

When it comes to discipline, service records, seniority, performance, etc. are all valid, legitimate factors to consider in determining an appropriate punishment for an individual. We had a similar situation several years ago in which a long-term management employee had been observed inebriated on a few occasions while staying at our properties on company business. The company's response was to take away his (on duty)driving privileges and his company car. If the individual had not had his otherwise excellent service record or time in service, he probably would have been cut loose.

I know I'll take some flak from my not-so-liberal colleagues, but that's my two-cents worth.

Rockie

Several things come to mind:

(1) He not only broke your policy, he broke the law by driving DUI. If he had killed someone while in the company truck,or had run over the co-worker,you would have been liable. If the co-worker had a mind to, he could file charges against that person.

(2) He is a long time employee, which is unfortunate, but this behavior was his choice. Has he ever displayed this type of behavior before? What would happen if a 30 year employee brought a gun into the company and started shooting up the place?

(3) You also have a double standard for staff employees and another for "long time employees" regardless of the degree of their behavior. You can bet the other employees are watching and waiting to see what is happening with this guy.

(4) Being a minority should have no bearing on you terminating him for this type of behavior provided you have not disciplined only minorities in this fashion.

This is a really tough situation and calls for some hard choices. I guess the first step I would make is to bring him in and ask him to explain himself and why he acted this way. If he was still belligerent, etc., I would immediately terminate him. If there is some valid reason (and I don't know what that might be) for his behavior, then I would take that into consideration.

Frankly, though, I would lean heavily towards termination due to the seriousness of this infraction and the precarious legal situation he put the company in. I would be afraid this would happen again, perhaps with dire consequences.

LFernandes

What does your policy say? Do you have a random drug screen or reasonable suspection clause? The employee should have been immediately taken for a BAT.

You could also recommend that the EE seek assistance by a substance abuse professional and afford him the opportunity to take a medical leave of absence in order to undergo any recommended treatment. Any such treatment should be at the employee’s expense (put him on FMLA immediately!!)

If the employee desires to take a leave of absence in order to participate in any recommended treatment program he should be expected to follow normal procedures for requesting a medical leave of absence. Proof of admission into the program, regular attendance and “drug/alcohol free” participation should be required.

In the very least, I would definately sit him down, review any policies you have and have him sign an acknowledgment. Since this is "after the fact" and you did not witness the behavior yourself (was the supervisor who did witnessed the behavior trained in "reasonable suspicion"?) and no BAT was administered, it's going to be harder to prove.

I would also look at the DOT regulations CFR Part 382.

Good luck!

hrwoman

I'm afraid I'm going to have to disagree w/ Parabeagle. I'm one of the not so liberal when it comes to the blatant disregard of safety. He's lucky no one was killed. And if someone, had been injured or killed when the employee was inebriated, don't you think the company would be sued? They wouldn't have care how long of service the employee had with the company. Plus, after 30 years of service with the company,the employee knows better. He not only endagered his life but others. He needs to be termed.

ray a

Hrwoman, don't be afraid to disagree with Beagle. He expects it. Our Zero Tolerance drug policy means immediate termination for offenders. I would put this in the same catagory. My concern too is the double standard with the leniency shown toward management. Imagine if this guy gets off with a slap and then a rank and file is termed for the same problem. Now imagine you are befoe a judge and jury trying to defend your actions. Someone in a leadership position with 30 years experience who ought to know better is let off easy.

Until the new FLSA laws go into effect, you cannot suspend an exempt ee for less than one full week or they lose their exempt status.

Rockie

Ray....Quick question. Do the revised FLSA regs change the one week suspension before you can dock pay for exempt employees? I didn't see anything on this. I know this was a proposal in the original format, but didn't know if it "made the cut".

LFernandes

I just read that under the final rule, an employer may deduct an exempt employee's salary for unpaid disciplinary suspections of one or more full days imposed in good faith for infractions of workplace conduct rules. These suspensions must be imposed pursuant to a written policy applicable to all employees. The DOL describes this change as a sommon-sense change that will permit employers to hold eexempt employees to the same standards of conduct as the non-exempt workforce. Also, the term workpace misconduct refers to conduct such as sexual harassment, violence, drug or alcohol violations or violations of state or federal law. The term does not include performance or attendance issues.

L

ray a

That's right. I was just reading a paper published by our corporate lawyers that said exactly that.

Gillian3

The actions were too flagrant to take into consideration length of service, past good service etc. etc. Terminate.

Parabeagle

Okay, you've all convinced me. I have seen the error of my ways, but I still believe length of service and employment record are mitigating factors in determining punishment. But all the points raised have convinced me that in this particular case termination is more appropriate.

Think I'll go over to the "Weapons" thread now and advocate gun possession on company premises or something. x;-)

Balloonman

Parabeagle is correct, that service time and past record can be factored into why individual discplinary discretion can be applied to what apprears to be similar circumstances. If this were not such a severe case of misconduct I might argue against termination.
To quote "The Donald" 'YOUR FIRED" :-)
Plain and simple you violated so many rules, endangered lives, etc. we have NO choice but to terminate you.
If you are forced by those above to keep him, go for 60 day suspension, mandatory substance abuse evaluation and counselling and periodic mandatory testing.
My $0.02 worth!
DJ The Balloonman

ray a

Beagle, if the infraction were of a much lower level of severity, I would agree with you.

HR in CA

This long term, minority supervisor made a decision to not only drink, but to get behind the wheel of a company car. You are very fortunate that he did not injure himself or someone else.

If your zero tolerance policy is to be effective, exceptions should not be made. What will your company do the next time this happens and this supervisor was let off with something less than termination?

Drinking is legal; operating a motor vehicle while drinking or under the influence is not. Operating a company vehicle while drunk violates my company policy. The decision is an easy one for me, "You're Fired".

Gillian3

The responses which stated that length of service etc. can be factored into a decision are correct. Equality of treatment does not mean that everyone gets treated the same no matter what but that everyone in similar circumstances gets treated the same. If the circumstances in this case were not so flagrant, it would be proper to deal with this employee the same as other long service employees.

Don D

Devil's advocate. I'm the attorney for the 30 year minority supervisor. My first questions to the guy who he almost ran down will be: What training have you had regarding recognition of signs of drug or alcohol abuse? How close were you to the truck when you say it nearly ran you down? Did you run a blood or a breath analysis to reach your determination that my client was inebriated, hammered as you say, DUI, legally drunk as your personnel manager has recorded in her notes?

And the first several things my client is going to say when he takes the stand are: I was extremely tired, having worked a long shift already following a day without sleep the prior day. I had been taking medication for allergies and a chest cold. I admit I dozed off and it literally scared the crap out of me when I heard someone approach. I panicked. My brother was knocked in the head in a parking lot and I figured that was about to happen to me. I don't drink. I've worked for this company for 30 years and have never been accused of anything out of line. I certainly know the policy and would not violate it.

Then your witness is going to say; I was probably 6 to 10 feet away and backpeddling to save my life. I figured he was drunk. Why else would he do that? I didn't have a conversation with him. I've never seen him drink. He sped away like he was scared to death, I figured he was drunk.

LFernandes

Thank you Don. I mentioned the same thing (supervisor training) in my post. When dealing with reasonable suspicion, the supervisor must be trained and the employee must be taken within a designated time limit to a drug testing facility.

Pork

Regulations Part 541.118(a)(4)covers the ground rules. "Penalities impoised in good faith for infractions of Safety rules of major significance will not effect the employee's salaried status"!

To stay safe on this one, I recommend when discipline is applied consistent with your written company policy, management should be awarded a suspension of an entire week's pay, otherwise, disqualify a management person in writing to any bonus award. Our bonus program always have this provision of disqualification to a bonus plan for discipline reasons.

Based on this part of the regulation one can not take days in the week off of the employee's pay check because he/she did something wrong.

As I have stated before: With a company policy one must practice what they preach to or hold a high standard. Getting caught before one confesses in our company is grounds for immediate termination with out hesitation, or regard for 30 years or 1 day. Follow your policy to the letter or be prepared to defend your actions with every AA case!

PORK

Balloonman

Hmmm Don, very good anaylsis.
My $0.02 worth!
DJ The Balloonman

NM _Tom

The original post indicates there is more to the story... "to make a long story short"... I think it would be negligent to retain this employee. He has shown a blatant disregard for the company, his fellow coworkers, and society at large.

Fire him now and deal with the consequences if they arise. Dont wait for the phone call at 2 a.m. telling you he killed himself and a family in an auto accident because he was DUI.

Just do it...

Don D

Right. And belly up to the bar and write that check for TWO HUNDRED AND FIFTY THOUSAND DOLLARS. His lawyer will love you for it.

Pork

"Dandy Don" the post does not read that clear! If they have a discipline policy in place and there is no doubt that the individual was Drunk on company property, they could seperate the employer/employee relationship without to much fear of a discrimination charge. Given the poster company has no sound evidence on which to base a change in the relationship, then they are as you write waiting on the "hammer" to fall with a bang and big bucks at that!!!!

Don D

Pork: I see no convincing evidence that anyone can show that the man WAS indeed drunk. Go back and read my scenario about the questions on the stand. We're all speculating here. I've just chosen the Devil's Advocate position.

Pork

"Dandy Don": You are even more conservative on this one than previous; my thoughts go to the poster's statement of first hand witness information and observation of one's attitude, conduct, and appearance. Given credence to the first hand knowledge of those witnesses the company could still exercise the right to terminate and face the hammer and anvil without concern. If the company has a history of following their policy, which is doubtful due to the statement of poster about the weakness of the senior leader,then,the company should have the ability to terminate regardless of the lack an alcohol breath test or a urine or blood test . My writings give power to the poster's words and belief that all the iiis & ttts are dotted and crossed. Which may not be the case and like you say "I WANT TO BE THE ATTORNEY" for this one.

You have a Blessed day and I'm out of this one.

PORK

LFernandes

Under the 49CFR 382.603

"The trained supervisor may not order a reasonable suspicion test of a driver the supervisor does not supervise. Motor carrier employers may not conduct reasonable suspicion testing based "on reports of a third person who has made the observations, because of that person's possible credibility problems or lack of appropriate training."

What happens if.... the employer terminates this employee (without an investigation) and then finds out that the people who reported he was drunk and disorderly were just out to get him.

Conduct an investigation, discipline the employee appropriately at the end of the investigation, put him on termination warning if it warrants it and then monitor the situation which includes being on the lookout for retaliation.

Has a thorough investigation been completed?

LFernandes

HR in CA

psrcello

What did happen? Please update us!

Thanks

psrcello

Thanks to everyone for your input on this! Here's how it went down - the supervisor is still employed, but his privilege to drive the company truck has been permanently rescinded. He received a one-week suspension without pay, which will be followed by a one-week paid vacation. During this time, he is to contact our EAP, and begin some type of substance abuse counseling.

The toughest part of this for the supervisor will be regaining the respect of the employees who report to him, several of whom were direct witnesses to the events of last Monday evening.

He will most likely be retiring next year, and the plant manager felt that, given the years of faithful service, the supervisor should be given the opportunity to work out the rest of his career with us. I think it turned out to be a fair and honorable settlement of what was really an awful situation.

ray a

Sounds reasonable. How did he respond to this? Did he admit to having a problem?

Cinderella

This is a very interesting thread. Like my friend Ray, I definitely want to know if the ee admitted to being DUI.

Thanks for sharing this experience with us - it shows how there is always "more to it" than just black or white.

Parabeagle

I think the disicpline was balanced and appropriate. You have removed the potential for him to cause any harm by permanently rescinding his driving privileges and have hit him in the pocketbook with a suspension. As important, you recognized 30 years of faithful service by not brooming him.