Q: Several years ago, when one of our employees was stealing from other employees' purses and desks, we called the police. The process -- calling in the police, alerting our insurance carrier and interviewing multiple employees to be able to show fairness so we wouldn't get sued for wrongful termination when we fired the one employee -- tore apart our company.
Once again, we have a problem. Several employees have reported missing small things from their desks. It appears that these items are being taken at night and since everyone has a key, it could be anyone. We suspect the new employee as the problem began when he was hired. Is there a discreet way to handle this, so we don't have to interview everyone, casting suspicion on other employees who we believe blameless? Can we just fire him since he's the likely culprit?
A: Employers have three options when they suspect one employee of stealing. They can file a civil suit for theft, terminate the employee or file a criminal complaint.
If you terminate this employee, don't do it "for cause" based on mere suspicion. In one famous case, Dixon v. Kargman, a trucking company partner received an anonymous call alleging an employee was stealing fuel. The partner then called the police, signed a criminal complaint for theft and also testified against the employee at a grand jury.
The police arrested the employee and the employee was indicted, but later acquitted. After his acquittal, the employee sued the trucking company and partner for malicious prosecution. The judge in a bench trial awarded the employee $45,935 in damages, ruling the partner had no probable cause when he'd instituted criminal action based on an anonymous call.
You can, however, terminate this employee "at will" or for no cause. If you choose this option, you potentially pass a problem employee on to another employer, or worse, fire a newly hired employee for no reason and perhaps continue to employ a thief. Further, with several employees missing items from their desks, you can't keep this problem a secret. In the long run, you might be best off calling the police and letting them do their job.
Q: When our CFO brought me one of our senior manager's expense reports, I learned he drank heavily at lunch. I brought him in and let him know that we weren't going to pay for his booze.
He argued, saying I should consider his drinks business development expenses. I told him I didn't want him returning to the office with booze on his breath and said I was instructing the CFO not to reimburse any alcohol expenses.
Even though he no longer expenses his drinks, others in our company have seen him drinking at lunch as several managers take clients to the Petroleum Club for lunch. Is there an easy way to completely restrict his lunchtime drinking without creating a policy that bans alcohol for other managers who don't have a problem?
A: In 2014, the Federal Equal Employment Opportunity Commission published an Informal Discussion Letter letting employers know that requiring employees who are or are perceived to be alcoholics to abstain from drinking alcohol on or off the job as a condition of continued employment likely violates the American with Disabilities Act and constitutes discrimination based on alcoholism.
While employers have a legitimate business interest in ensuring that employees are not impaired during work, they don't have a legitimate business interest in regulating an employee's conduct outside of work. Employers can, however, establish a drug and alcohol free workplace policy and prohibit employees from using, being impaired by or possessing alcohol in the workplace. If you want to allow other managers to occasionally drink at lunch, you need to write this exception into your policy.
Finally, does this manager work effectively and productively after lunch? If not, the ADA specifically allows employers to hold alcoholics to the same performance and conduct standards as other employees.
Lynne Curry writes a weekly column on workplace issues. She is author of "Solutions" and owner of the management/HR consulting/training firm The Growth Company Inc. Send your questions to her at lynne@thegrowthcompany.com. Follow her on Twitter @lynnecury10, at www.workplacecoachblog.com or at her new site www.bullywhisperer.com.