One of my employees got a DWI...

[TheAxeman]

I own a small contracting firm and last night one of my lead employees got a DWI. He refused to blow so it will mean an automatic loss of his license for 6 months. Now I am in a major quandry. The guy has worked for me for a number of years but without a license he is next to useless...kind of like a major league pitcher having his arm amputated. I am busy enough that I can't afford to lose a guy and don't have the time or inclination to train someone else. On top of that, my insurance rates are now going to go through the roof. The first thing I'm going to do is have him take the rest of his vacation time, sick days, personal days etc....until I figure out what to do. So.....what should I do? Short of hiring a driver for him I don't see many other alternatives but to fire him.

 

[bramfrank]

Sorry to hear you hired an idiot. Drunks shouldn't be allowed to drive - EVER. Licenses should be permanently suspended for even a first offense.

Sound too tough? It isn't. Your employee has demonstrated that he has ZERO common sense and is a danger to society. There should be ZERO TOLERANCE for this type of offence.

This guy is going to cost you money to hang on to as a result of his actions? Make HIM pay the costs. Hire a driver for him and make him pay the driver's salary. Why should you be saddled with the impact of his personal decision?

Had he crashed and lost a leg or worse, had he killed someone, would you somehow feel responsable?

You might want to find a new employee or, at the very least get this one out from behind the wheel of a motorised vehicle..

The opinion expressed is solely that of it's author and may not represent the opinion of the rest of the members or of the owners of this board. The author is solely responsable for it's content and, if you don't like it? Tough.

 

[nusman68]

You might want to consult a (I hate to say it) lawyer. If your company is 'small', i.e. has no HR dept., employee policy manual, (spelling out that for his job you have to have a driver's license and clean driving record for employment) he might try to get you for wrongful termination, as ridiculous as that sounds. You know the drill: gee, I can't drive, but I can make it work everyday...you have to give me a job). On the other hand, if that requirement was in the original job application/description, than you shouldn't have a problem firing/replacing him.

 

[user 213]

You can't let him drive a company vehicle, that you know. If he can't drive, he can't perform his work duties. If he can't perform his expected duties, you're pretty much going to have to terminate him for cause.

The burden isn't on you to make it possible for him to do the job. It's on him to be capable of doing it. He has to take responsibility for his actions, and accept the consequences of them. In this case that means finding a new job.

It also means you're stuck training a replacement, so while you may feel for the guy, his screw up is going to cost you money. I'd be polite when I explained why I was firing him, but in the end, he did it to himself. Remember to explain you are not firing him for getting a dui, but for his inablitiy to perform the expected work duties. I.E. You're firing him because he's not doing his job, just like you would anyone else that came to work and didn't do their job.

Sorry for the headaches guy, good luck with the replacement.

 

[TheAxeman]

Bram,

While your opinion is harsh, I agree with it in many respects. Because it is a small company, there are no outlined job descriptions (to date anyway) and my personal policy has always been "what you do on your own time is your own business as long as it doesn't affect me in any way"....well even my personal policy has now been violated. Even though this was done with his own vehicle on his own time it is now going to cost me in time and money. It absolutely amazes me the number of people out there with fucked up driving records. I know many guys out there with excellent skills that I can't hire because I can't insure them. Now as Nusman points out, I may be faced with having to keep him just for legal reasons....a thought that never even crossed my mind.

 

[Mogambo]

Bram,
While your opinion is harsh, I agree with it in many respects. Because it is a small company, there are no outlined job descriptions (to date anyway) and my personal policy has always been "what you do on your own time is your own business as long as it doesn't affect me in any way"....well even my personal policy has now been violated. Even though this was done with his own vehicle on his own time it is now going to cost me in time and money. It absolutely amazes me the number of people out there with fucked up driving records. I know many guys out there with excellent skills that I can't hire because I can't insure them. Now as Nusman points out, I may be faced with having to keep him just for legal reasons....a thought that never even crossed my mind.

A tough spot, but you didn't cause it. Personel is always what I hated most about business. There are certainly exceptions, but it seemed that most people just don't give a shit. The more you give the more they take and the more that they expect.

Just talk to your lawyer, there are ways out of this. Pa is a right to work state, meaning that you can essentially let someone go at anytime. I had a situation a few years ago that was going to cause me some trouble. I consulted my attorney. His advice? "Simply say that your services are no longer required and you are terminated effective immediately. Say nothing more. NOTHING! No matter how much the other person tries to gaod you into saying more. Simply repeat what I have said. Over and over again, like a parrott if necessary."

Give them nothing to hang there hat on. NOTHING! Just talk to your lawyer. I didn't look to see what state you're in, but your lawyer should know the deal. You didn't cause this problem and you shouldn't have to suffer the consequences of it. Your employee knew what the law was and he chose to do what he did anyway, without any thought pf the problems that it might cause to you, so why the f--k would you worry about him. Life's tough. Things will work out for you. Just do what you have to do. Remember HE didn't worry about YOU, and don't forget it.

Only my opinion. As you can tell, I have little tolerence for this kind of crap.

 

[Fencer]

Axeman, you sound like you run your company like I run mine. Although I do have a job description (do everything and then do what I tell you to do ) written out. It was required by my workers comp and liability insurance carrier.

The wrongful termination greatly varies by state. Alabama (my state) is considered an "At Will" state. which means as an employer I can hire and fire at will with no reason. I can fire for hair color or the color of your eyes. Sure, I can be sued by an ambulance chaser lawyer, It will cost me time and money to defend the suit, but in the end I will countersue for damages because the written law backs me up in this case.

Should you decide to terminate, list NO reason, or an easy out would be failure to show for work or performance of duties (get on that job description list asap). Find out what kind of state you live in for the employment law.

I had a similar situation two years ago. I hired an aquantance I had known for years who after 10 years with his Company was the discoverer of the "at will" State in which we live.

Long story short- he had and on the job injury (shot himself with a nailgun in the foot) Per my insurance regs, I had a drug test run, and It came back positive for MJ. He said he smoked one joint the day before (his off day) and it was the first time he had smoke a joint is years (another aquantance of his gave it to him). It ruined our friendship, He could not understand why I fired him, all he could see was no income and looking for a job.

From my situation here is what I looked at to make my decision. He is now a KNOWN quantity. had he never been hurt and the job was completed, I would be none the wiser for is off the clock action. But now, he is a liability. Sure, " I only did it once, on my off day and will never do it again" and here is a BIG BUT, If he did and hurt one of my other employees, I am Vastly liable for his action because I now knew he did pot and came to work from his past actions. A lawyer would have a hayday and bury me and my family. All because I tried to give a second chance to someone. And a big increase in rates if I retained him. (the removal of the nail alone was over $26,000)

I am not saying you should fire your man for an off the clock DWI. I am saying you have to evaluate,have you ever suspected him of being drunk on the job, hungover from the night before. If you feel this was a one time event of a special celebration that he exercised poor judgement and choose to drive, maybe give him a second chance IF he is a really GOOD employee. If you have any doubt, cut him loose, as his actions will affect not only him and whoever he directly DWI's again, it will also affect your company, all the other employees (if you have to pay for a lawsuit)and YOUR FAMILY if you are sued because of his actions.

If he gets a lawyer and finds a plee deal to keep the DWI off his record. You can keep him as it should remove the liability of his future actions from you. That (I am sure) would take longer than the 6 month suspension. The termination is easy you as an employer can always "make" that happen for many reasons.

 

[wallypiper]

If driving a company vehicle is part of his job, I don't think you have any choice. You have to fire him. Your liability if you keep him and something happens while he's driving for you is overwhelming. If he can do his job without driving as a part of his job, I would let him stay as long as he can get to work and do his job. I hate drunk drivers. I NEVER drink and drive. NEVER. But I did during a different part of my life. Never got charged. If he can't do his job, you have no obligation to accomodate that. He made a bad decision. He will have to live with the consequences of it. I have an employee with 6 DWI convictions. Driving is not part of his job. Somehow, he still has a driver's license. I don't think he's a very smart guy, but he's suited to the job he does and is a good employee. I gave him time to do 60 days in jail for the sixth one (he didn't work for me during the previous ones), but mainly because it wasn't terribly disruptive to do so and, like I said, he's a good employee. But he knows that if it ever happened again, he'd be gone. No second chance from me.

We have a very screwed up message about drinking and driving in this country. Publicly everybody slams it. But go to any club any night of the week and over 90% of the people leaving the parking lot are DWI and nothing is done to stop that. If we really wanted to stop it, we'd stop it right there at the exit of the parking lot. Walk out of a bar and get in the driver's seat and get an automatic breathalyzer. The alcohol industry would fight that to their last penny, as quietly as possible.

 

[TheAxeman]

I appreciate all the input from you guys.

In the past I have made it very clear to him that his outrageous, stupid behavior in his free time may at some point lead to a loss of his job and here we have it. Unfortunately I am in a service oriented business which requires the use of company vans throughout the day so there is no way that I can suddenly make his position an in-office one. The business is very seasonal because of the area I am in, so the shock of losing a valueable employee isn't as great right now as it would have been a month ago but it will nevertheless be a complete pain in the ass picking up the projects that he will be leaving behind. I just got back from a head-clearing ride and I think I will take the consensus of all your advice and fire him although it will pain me to see him unemployed. Unfortunately, I am the type of employer who is close enough to the people that work for me to call them friends....Maybe his night in the big house gave him time to do a little reevaluation of the priorities in his life.

 

[mdisher]

I highly suggest you consult with an attorney to be safe. He needs to be let go, but you need to make sure you dot your i's and cross your t's

He's unable to perform his job now, his choice, since he didn't blow, etc, etc and has no license. Perhaps you lay him off as opposed to firing him. The legal twists are what you have to watch out for.

Quite frankly nothing you do can prevent him from filing a suit for discrimination which just sucks. Most of it depends on what you have documented so far. Most small businesses don't have much documented.

I don't know enough about your situation or his to really advise you and I doubt anyone else here does either.

 

[Geezer]

If this is his first offense the judge will probably allow him to drive to, from, and during work.

 

[Longrifle]

In the State of Confusion, IE..Kalifornia, it is possible to have a suspended license, except during the course of employment. If possible in your state, your employee could drive to and from work and during his job only! I also agree with some of the prior posts, I don't like drunks either. I won't throw stones though, I was younger and dumber once too, never got arrested, but made poor decisions. Somehow the auto pilot on my Silverado got me home.......how stupid can someone be?

 

[FJRottie]

Tough choice and good input.

You mentioned that he has done stupid things in the past and has been forewarned, so;

I would agree that a spade is a spade. We all do stupid things yes, but some of us have been lucky, and, it is not an excuse to let others get away with it. If you screw up, you must pay the price. Anybody terminated for any reason will be unhappy. Counselling anyone is hard. Laying it on someone makes most defensive and angry. People tend not to accept their mistakes, but some do. The best thing that ever happened to me was to go to jail many, many years ago. Make him understand that when you ****-up, you have to pay. If he cannot learn from that...well too bad and have a nice life. No time for the weak or apathetic. Nothing in business should be too personal and the good people shine through or actually come out better. If you have no legal repercussions for termination, fire away. You must move on and find responsible employees. When you lay it on, tell him some positive points, but remind him he made a mistake, could have been deadly, and hampered your business. I would counsel all my employees as well and tell them all, “Mr X has made a mistake. It harms my business and I am disappointed. We cannot work with that, so he has to go”, or whatever.

If he has been already warned, I have no sympathy. Does he need a giant hug me coat and other people to keep HIM safe. “One man, one kit”, so we say.

End it calmly and professionally.

The sick and weak get eaten, that is life. IMHO

 

[Fencer]

. I would counsel all my employees as well and tell them all, “Mr X has made a mistake. It harms my business and I am disappointed. We cannot work with that, so he has to go”, or whatever.

Nooo!!!

This is bad advice and Will get you sued. You cannot for any reason disclose the reason or lack of, one 's employees employement or termination with another employee without the written consent of the employee being discussed. This would be considered an invasion of privacy and open you up big time. If He elects to say'" that asshole fired me becuase I drank off the job.", thats his choice. I assume you know that the only thing you can safely verify on an employee's past work history are: dates of employment, rate of pay and position held. any thing else is a no-no. People have sued past employers and won from "they are dening me the right to gainfully employee myself." I have fire people for stealing and KNOW they would do it to the next guy as well, but would have the pants sued off me if I warned the next employer or told why they we let go. You cannot even say if they are eligable for re-hire or not.

The worst thing is you cannot give a raving review of your best employee you hate to see go, but you want him to do better than you can offer. Other employers have sued and won over past employer's recommendations of an employee being outstanding and the new employer felt he did not live up to the hype (payscale) he wwas given.

Counsel your employees with job requirements and expectations, but NEVER mention why someone was let go.

 

[ponyfool]

Simply explain that driving is part of the job. If he gets a hardship permit, he can keep his job. If he can't, he can't.

FJRFencer, I don't live in a right to work state, and maybe police work is different, but this is not my experience. When an officer gets fired, it is published on the police department's website that employee so and so was terminated for violating policy and procedure number so and so.

No, the details of the violation aren't published, but the policy and employee's name are.

As for new employers calling to ask, I know police work is typically different in that an applicant has to sign multiple forms giving permission for former employers to reveal everything about them. Even with those forms, some employers are still skittish about providing information.

Truth is though, anyone can sue anyone else for any reason whatsoever. There is nothing preventing it. It will always cost the accused money, at least in the beginning.

 

[Fencer]

, and maybe police work is different,

I believe there is a difference in public vs private service.

I am just telling you what I learned from HR people at companies I managed to keep the company from being sued.

 

[sradek]

I have read this thread and I don't agree with the tone or where this is going.

People make mistakes and I am sure some members here have.

You must show understanding. It's hard to do, but that's why it's HARD!

Talk to the guy and then decide if he is valuable as you say he is or not. It comes down to your views only and we really don't know the value you place on him for your business. Make sure there are no recorders, etc.

Then speak freely. You know your business and this guy. Help him if you can and wish to. Then decide what to do.

Don't consult a lawyer first about how to run your business. Based on your decision (verbal, unrecorded), communicate to him what you expect (and record), then consult your lawyer for CYA for law.

Best wishes.

 

[wallypiper]

If he gets a hardship permit, he can keep his job. If he can't, he can't

Keeping his license or getting a hardship permit isn't enough. For one thing, he has to be insurable and he probably won't be, at least not by a commercial insurer. Second is liability for the employer. Even if he could be insured, continuing to assign an employee with a DWI conviction to a job that requires him to drive is just asking to get pounded if he's ever in an accident. Which is why the insurance company probably won't cover him anyway.

Also in Georgia:

'Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year.

Your state may be different.

Interestingly, I cannont find in the Georgia code any statutory requirement that a person convicted of DUI have their license suspended or revoked. So, in Georgia, he would have been better off to take the test, especially for a first offense. You stand a very good chance of keeping your license here. Note my post above. I have an employee with SIX dui convictions and he still has a license.

 

[mjsmoss]

At my company, we pay an outside consultant, who specializes in things of this nature & our rights as employers. If you like I can run your situation by him & see what he says. I'm also in new york so it may or should be aplicable to you. Just let me know if you want me to ask him.