- Lessons From LochteGate: Strategies to Avoid Olympic-Sized Workplace Disqualifications
- September 14, 2016 | Author: Karen Lynn Vossler
- Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Washington Office
U.S. Olympic swimmer Ryan Lochte’s recent alcohol-fueled encounter with Brazilian police during the 2016 Rio Summer Olympic Games embarrassed not only his team and the International Olympic Committee but possibly the entire nation. Had Lochte been a sales executive traveling in Brazil on behalf of his employer instead of a gold-medal adorned U.S. swimmer, his employer would be facing a PR disaster. This situation is similar to that faced by employers whenever company events, client entertaining, and conferences mix alcohol with work-related responsibilities. Along with a legally sound and comprehensive drug and alcohol policy, here are some strategies for minimizing the potential for alcohol-related misconduct at work-related events:
1. Articulate Clear Guidelines for Alcohol Consumption at Company-Related Events
Whatever your desired approach-whether a strict ban or a policy of moderation-one of the best ways to manage employee conduct is to articulate up front what company expectations are. And don’t fool yourself: failing to explicitly articulate a policy, may have the effect of articulating a nonverbal policy.
Employers may want to consider instituting a policy regarding alcohol consumption at company events. Make the policy specific: Are you going to ban alcohol, limit consumption to two drinks, or leave consumption to the discretion of employees? If alcohol is permitted, is prior approval required and by whom? Will you allow alcohol consumption only at after-hours events, or will alcohol at company luncheons be permissible? Try to think through scenarios that could be problematic, and develop enforceable policies around those scenarios. An ounce of prevention can be worth a pound of cure . . . It should go without saying that once you establish such a policy, you should enforce it consistently.
2. Limit Alcohol at Company Events
While we’re on the topic of articulating an alcohol policy, consider limiting the flow of alcohol at events. A one- or two-drink limit can go a long way toward the reduction of occurrences of a LochteGate at the company holiday party or your next sales meeting.
3. Training Employees (and Executives!) Regarding Alcohol Use and Abuse
A portion of my career has been spent educating and training employees, managers, and executives regarding company policies and legal obligations, and I get it. The last thing your busy employees want to do is to take productive time out of their day to attend a mandated training program. But what about recasting the typical drug and alcohol use and abuse training as a matter of professional development? Consider that Ryan Lochte’s four corporate sponsors dropped him in their efforts to disassociate themselves from his antics.
Taking responsibility for oneself and one’s own professional brand is an important part of career development, and managing alcohol intake at company functions may be one consideration among many in that process. You can and should still include the same important topics, such as your company’s policy on drugs and alcohol in the workplace, how to recognize the signs of alcoholism and drug abuse, and how to access company support and treatment (like an Employee Assistance Program or other confidential resources).
4. Dealing With Alcohol-Fueled Misconduct
Chances are that, at some point, an employer will face alcohol-related misconduct, despite best attempts to limit and manage the possibility. Here are some points that employers can consider if they encounter such a situation.
Unlike current, active use of illicit drugs, alcoholism is a disability covered under the Americans with Disabilities Act (ADA). While some states’ laws may limit an employer’s ability to discipline employees whose misconduct arises from or is caused by a disability or medical condition, the ADA imposes no such limitation. As a matter of federal law, employers may discipline employees for conduct that is in violation of its established and consistently-enforced standards of conduct and policies, even in cases in which an employee indicates that the conduct was caused by his or her problem with alcohol.
Hence, the employee who arrives at work one hour late two or three times per week due to late-night partying can and should be held to account under a consistently enforced attendance policy, even if that employee reveals that he or she is struggling with an alcohol problem. In such a case, an employer may discipline the employee for violating a workplace policy while, at the same time, offering to accommodate the employee’s condition as appropriate (e.g., by providing leave to seek treatment or to attend meetings of a 12-step program).
5. Using Last Chance Agreements to Manage Future Conduct
In certain cases, employers may find themselves torn between wanting to enforce their policies and wanting to provide a second chance to employees struggling with drug or alcohol abuse. But looking the other way for one employee who is a high-performing and valuable team member may lead to allegations that the employer treats employees inconsistently. Consider implementing a “last chance agreement” as one option to resolve this tension.
Borrowed from a grievance resolution technique in the union context, this type of agreement allows an employer to put certain conditions on the continued employment of an employee who would otherwise be subject to immediate discharge for having breached a particular policy or rule. Essentially, the employer foregoes its right to immediately discharge an employee for a serious policy infraction in exchange for certain promises, which may include an agreement to seek and complete a treatment program and/or an agreement to be subject to periodic drug and alcohol tests for a certain amount of time.
These agreements must be drafted carefully to ensure that the employment relationship remains at will and that the employee understands his or her continued obligation to otherwise meet all the performance requirements and continue to follow all the policies of the employer. When drafted to meet the employer’s obligations and the employee’s rights under the ADA and any other applicable laws, such agreements can be an effective tool in addressing misconduct and ensuring it does not reoccur.
Alcohol and the workplace can be a tricky combination, but implementing useful, workplace-specific strategies ahead of time can position employers to avoid and/or manage the headache of employees’ alcohol-related misconduct.