Hi Nunzio,
Let's break this down, since sexual harrassment and drug use are two
entirely separate issues. We'll start with sexual harrassment (which
is covered by Federal law).
It would appear that not only is the restaurant owner exposed to
liability, but the lack of a clear, written policy regarding sexual
harassment may, in fact, actively work to the employer's detriment.
The Florida United Business's Association dealt with this very issue
in the wake of two 1998 sexual harassments suits in Florida, in their
October issue of that year:
"From now on, an employer will be held liable to a victimized employee
for a hostile working environment created by a supervisor, even if the
employer had no idea what was going on. The employer can avoid
liability by proving two elements:
(1) that the employer exercised reasonable care to prevent and
promptly correct any sexually harassing behavior (this means that the
employer has a zero-tolerance policy against sexual harassment which
outlines the proper complaint procedures and the employer can document
that the complaining employee received a copy of the policy), and (2)
that the employee did not use the proper complaint procedures outlined
in the company personnel manual on sexual harassment."
Note that the article mentions that there must be a clearly defined
zero-tolerance policy documented in order to avoid liability.
The article goes on:
"The bottom line for employers is that they should now be aware of
their duty to prevent sexual harassment in their workplace by using
"reasonable care." This means that employers need to take the
following steps to avoid liability for sexual harassment:
* Have a written, detailed zero-tolerance policy against sexual
harassment. It should be distributed to each employee, who must
acknowledge in writing that they received it. Retain the written
acknowledgement in the employee’s personnel file. The policy should
clearly explain that employees have a right to complain about
harassing supervisors and should also explain how employees should go
about complaining. Follow up with reminders at regular intervals."
"SEXUAL HARASSMENT UPDATE -- NEW RESPONSIBILITIES FOR EMPLOYERS"
[ http://www.fuba.org/fuba/letter/9810/harassment.htm ]
"Court cases alter sexual harassment law"
[ http://triangle.bcentral.com/triangle/stories/1998/10/26/smallb2.html
]
The employer can likewise be held liable if the harasser is a
customer, if the victim is a customer, or if the victim is not the
person being harassed, but is offended by the harassment taking place:
[ http://www.sexualharassmentpolicy.com/htm/definition.htm ]
"Customer sexual harassment can lead to liability"
[ http://hr.monster.com/hrwatch/watch5-17-99/ ]
"Jury Finds Employer Liable For Third-Party Sexual Harassment"
[ http://hr.monster.com/hrwatch/watch4-26-99/ ]
The drug use question is a little trickier. I'm not sure if you are
referring to employer liability if an employee under the influence of
drugs harms another employee, or harms a customer, or if your concern
is that an employee fired for drug use might be able to sue.
For the purposes of this question, I'm going to assume that the
concern is whether or not an employee fired for drug use could sue the
employer in the face of the absence of a written drug use policy.
The law firm of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A, in
Tallahassee, FL, devotes an entire section to the Florida laws
covering "Drug Free Workplace" statutes.
It would appear that it is in the employer's best interest to maintain
a clear, zero-tolerance policy on drug use, in order to avoid the
possibility of being sued by an employee discharged for drug use:
"If an employer implements a drug-free workplace program in accordance
with s. 440.102 which includes notice, education, and procedural
requirements for testing for drugs and alcohol pursuant to law or to
rules developed by the Agency for Health Care Administration, the
employer may require the employee to submit to a test for the presence
of drugs or alcohol and, if a drug or alcohol is found to be present
in the employee's system at a level prescribed by rule adopted
pursuant to this act, the employee may be terminated and forfeits his
or her eligibility for medical and indemnity benefits. However, a
drug-free workplace program must require the employer to notify all
employees that it is a condition of employment for an employee to
refrain from reporting to work or working with the presence of drugs
or alcohol in his or her body and, if an injured employee refuses to
submit to a test for drugs or alcohol, the employee forfeits
eligibility for medical and indemnity benefits."
[...]
"Reasonable-suspicion drug testing" means drug testing based on a
belief that an employee is using or has used drugs in violation of the
employer's policy drawn from specific objective and articulable facts
and reasonable inferences drawn from those facts in light of
experience. Among other things, such facts and inferences may be based
upon:
1. Observable phenomena while at work, such as direct observation of
drug use or of the physical symptoms or manifestations of being under
the influence of a drug.
2. Abnormal conduct or erratic behavior while at work or a significant
deterioration in work performance.
3. A report of drug use, provided by a reliable and credible source.
4. Evidence that an individual has tampered with a drug test during
his or her employment with the current employer.
5. Information that an employee has caused, contributed to, or been
involved in an accident while at work.
6. Evidence that an employee has used, possessed, sold, solicited, or
transferred drugs while working or while on the employer's premises or
while operating the employer's vehicle, machinery, or equipment. "
[...]
"(7) EMPLOYER PROTECTION.--
(a) An employee or job applicant whose drug test result is confirmed
as positive in accordance with this section shall not, by virtue of
the result alone, be deemed to have a "handicap" or "disability" as
defined under federal, state, or local handicap and disability
discrimination laws.
(b) An employer who discharges or disciplines an employee or refuses
to hire a job applicant in compliance with this section is considered
to have discharged, disciplined, or refused to hire for cause.
(c) No physician-patient relationship is created between an employee
or job applicant and an employer or any person performing or
evaluating a drug test, solely by the establishment, implementation,
or administration of a drug-testing program.
(d) Nothing in this section shall be construed to prevent an employer
from establishing reasonable work rules related to employee
possession, use, sale, or solicitation of drugs, including convictions
for drug-related offenses, and taking action based upon a violation of
any of those rules."
Source: Florida Statutes as provided by McConnaughhay, Duffy,
Coonrod, Pope & Weaver, P.A, Section 440.101, subsection 2; 440.102,
subsection 3(a); 440.102, subsection 7.
[ http://216.162.128.36/resources/wc440total.asp ]
It would appear in both cases that the employer should err on the side
of caution when seeking to avoid liability in either instance, and
maintain clear, written policies on sexual harrassment and employee
drug use, and ensure that all employees have read and agreed in
writing to both policies.
(Regarding whether or not an employer can be held liable for the
actions of an employee under the influence of drugs, with or without a
written policy, I would say it's a qualified "yes", based only on
personal experience - some years ago, my (then) employer was sued by a
customer who had been struck by a custodian who was stoned. Though he
maintained no written policy prohibiting drug use, the court ruled
against my employer, with the reason being that it is the employer's
responsibility to ensure the safety of both employees and customers,
and ensure that no illegal activities ensue on the premises.)
If your concern on the drug issue is more concerned with the actions
of an employee under the influence on company time, please ask for a
clarification and I will research that further for you.
Thanks for your inquiry!
missy-ga |
Clarification of Answer by
missy-ga
on
07 May 2002 17:09 PDT
My response? Not to be flip, sir, but I hope your friend has some
wicked good liability insurance, because if she doesn't do something
about her employee, she could very well lose her business.
"[...]the general rule is that employers who are negligent in their
retention of an employee can be held responsible for any of the harm
caused by that employee. In other words, the actions of the drug
using employee can lead to serious and costly remedies, not only for
the employee, but for the employer who knew - or should have known -
of an employee's impairment"
[...]
"If you hire - or retain - a drug user, you as the employer are
possibly going to be liable for any of his or her actions."
"Employers Face Huge Liability When Overlooking Employee Drug Use" -
The Drug Free Advantage, March 2002
[ http://www.drugfreebusiness.org/March3.pdf ]
"Loss, liability grow with workplace drug abuse. The more drug
abusers you employ, the more money you lose. Some drug users will
‘deal or steal’ to support their habit, and you pay the replacement
costs. Liability is a larger problem. If you know a drug problem
exists but do not initiate corrective action, you are liable if there
is an injury or accident."
"Drug-Abusing Employees Are Getting High Off Your Bottom Line"
[ http://www.trsa.org/members/textile_mag/0197/drug.htm ]
"Lawsuits could also be a negative outcome from unnoticed, untested
drug and alcohol abuse. Professional liability, personal injury
complaints and negligence charges could be the result of a substance
abuse issue. "Too often, an employer's first awareness of the problem
is an expensive lawsuit," [Robert Stutman] says."
"What does the renewed rise in employee drug use mean to HR?" - HR
Focus; New York; Feb 2002
[ http://cba.ulm.edu/walker/ArtsDrugAlcoholUse.doc ]
Speaking as a former waitress and restaurant assistant manager, she's
risking an awful lot. Drug use is *rampant* in *all* sectors of the
restaurant industry, even here in sleepy Ohio, and it's costing the
industry very real sums of money (the article cited above estimates
$7000 per year loss *per drug using employee*!)
That's not to say that her reluctance to confront and possibly lose a
valuable employee isn't understandable - great employees are really
hard to find. But employers are slowly coming to realize that there
is much more at stake than having to replace an employee.
If your friend has a good relationship with this employee, she might
want to take him aside and have a heart to heart with him. She needs
to tell him first that she is concerned for his well being, that she
is worried for his health. Then she needs to address how his
impairment is affecting his work performance, and what it would mean
to him and the business as a whole if someone were injured or
otherwise suffered damage as a result of him working under the
influence. I've had this same talk with employees myself - it's very
hard, especially if you consider the employee a friend, but it's
necessary. She needs to tell him to shape up, that if he doesn't stop
using drugs altogether, then he must at the very least make sure to
*never* use them at work and *never* report to work stoned, lest he
lose his job. First offense, sent home with a written warning; second
offense, suspension; third offense, termination.
Then she needs to stick to it, and fire him if necessary. She stands
to lose more than a good employee if she doesn't.
With respect to the claim that having a zero-tolerance policy would
result in no one wanting to work for her: Again, not to be flip, but
poppycock. In twelve years of restaurant employment, I never
encountered an establishment unable to find and retain good staff as a
result of a zero-tolerance policy. The one establishment I worked in
*without* such a policy found out the hard way just how costly
employee drug use can be, and implemented one immediately after the
suit concluded.
A good employee who is respected and treated well by his employer, and
is adequately compensated for his efforts will not leave simply
because he is not permitted to get high at work or work under the
influence. Employees who engage in recreational drug use outside of
working hours will not engage during working hours if they value their
job.
How good can an employee be if he's not willing to remain
straight/sober during working hours?
I hope this answered your question! I wish your friend a lot of luck.
Best regards,
missy-ga
|
