Okay people, while the name of this blog relates to bartending, one subject I take very seriously is drinking. As an HR pro, we often have to deal with the subject of serving alcoholic beverages at company events and handling situations when employees have one too many. It’s important to handle these types of situations with caution and respect. Which brings us to today’s reader question.
One of our employees – a solid performer – will be losing his license due to DUI. He’s in a job that he can do largely without driving but he is occasionally required to take some trips. His license was valid when hired and his job description notes that travel is required but does not say “must possess a valid driver’s license”. His boss would like to keep him but it seems like we are accommodating. Thoughts?
To help with answering this, I reached out to Heather Bussing, a labor and employment attorney providing prevention, training and investigative services. I had the opportunity to work with Heather on a recent Mashable article about the new NLRB guidelines on social media and really liked her approach.
There’s a lot of information in this reader question. Let’s start at the beginning – is the mention of DUI a key piece of information? Why or why not?
(Heather) When an employee loses his driver’s license, the first question should be can he legally get to work? Since showing up is a fundamental requirement of most jobs, if the employee can’t reliably get to work, then the employer probably needs an employee who can show up.
While some states prohibit employers from disciplining or terminating employees for off-duty conduct, if the effect of the conduct is that the employee can no longer perform the required duties of her job, then termination is appropriate.
We don’t know whether it was drugs or alcohol involved in the DUI. If it was illegal drugs and there are other charges involved, the employee could be facing trial and jail time, which would also affect his ability to do his work. So I would want to know if losing the drivers’ license is the only consequence of the DUI.
Last, is the DUI part of a bigger problem with substance abuse? The ADA protects an employee who asks to go to treatment for drug or alcohol addiction. But there are different protections depending on whether the addiction is to alcohol, prescription drugs or illegal drugs. If the employee is not asking for accommodation for a recovery program, then generally, an employer can legally discipline or terminate for a DUI.
Since we do not know if the DUI will lead to any kind of ADA accommodation request, let’s take that out of the scenario for a moment. If an employee is required to take “some trips”, but can largely do their job without driving, doesn’t that really answer the question about keeping the employee? Especially when the employee’s performance is solid.
(Heather) If the trips can be accomplished without a driver’s license, and the employer wants to keep the employee, then I don’t see any reason why the employer has to do anything in response to the DUI if it doesn’t want to.
On a job description, does saying “travel is required” imply “must possess a valid driver’s license”? Or do companies need to say both?
(Heather) Job descriptions are not really legally binding on anyone. When a court is looking at the specific requirements to perform the job, it will look at what is actually involved, not what the description says.
An employer is always free to change duties and requirements to accommodate someone, or just because the needs of the company change.
To specifically answer the question though, travel required does not mean driver’s license required. If all of the travel is to places where public transportation is available, then the travel can easily be accomplished without driving.
I’m not sure how often this company reviews their job descriptions. But it’s possible regular reviews might have prompted the company to clarify job requirements. From experience, I know maintaining job descriptions is often low on the priority list. What can organizations do to make sure this information stays relevant?
(Heather) If you want to discipline or terminate someone because they can no longer perform a requirement of the job, your lawyers will be delighted to have updated job requirements signed by the employee.
But the truth is, they will never be completely accurate; they take a lot of time and energy to document; and if they are not correct, having wrong information in writing will just backfire. So I don’t see the value in spending a lot of time updating job descriptions as a risk management or evidentiary function. Testimony about what the employee actually did in the job is going to be the most important evidence anyway.
On the other hand, if accurate job descriptions are important for the hiring process, competencies analysis or succession planning, then they may be worth doing.
From a legal perspective, having inaccurate job descriptions and rules and policies that no one pays attention to is much worse than having nothing. Given the time, energy and cost in maintaining the paperwork, nothing is usually better.
Lastly, there might be other aspects to this story that we’re not aware of. As an attorney, what other factors might be important for a company to consider?
(Heather) A DUI is always a red flag for deeper substance abuse problems. If this person really is a valued employee and good performer, I would look closely to see if there are other indications of a drug or alcohol problem. If so, the employer is in a unique position to do an intervention and offer treatment. Before you do an intervention, call in the professionals to help you. It is a delicate situation that requires experience, knowledge, clear boundaries and resolve. You may lose the employee, but you could also save a life.
I’ve written before about the name of this blog and the HR Bartender analogy. I can’t emphasize enough the importance of being responsible – when we celebrate and when we work. It can have an impact on our lives and careers.