Let me offer a little brain teaser

An employee tests positive for marijuana is evaluated and referred to an addiction treatment program. Fine enough, but then this employee is in treatment getting more education about alcohol and marijuana. She calls you up and says, "get me out of here", they think I am an alcoholic.
What are you going to do?

I have seen supervisors fall prey to this game and give permission for their employee to leave! Assuming your employee is not alcoholic, several factors may explain her treatment. The most important is the nature of effective addiction treatment, which is founded on helping patients see the need to remain abstinent from all mood-altering substances, including alcohol. Because alcohol is legal and easily obtained, a strong emphasis on understanding alcoholism and on acquiring motivation for abstinence is needed. Your employee is being treated for addictive disease. Her drug of choice may be marijuana. The continued use of alcohol is a key predictor of eventual use of the primary drug of choice for any addict. Although understanding the harmful effects of marijuana is important, your employee will hear a lot about alcohol in any effective treatment program. The recovery principles are virtually the same no matter what the drug of choice.

Conduct Unbecoming is Powerful Leverage

Last week your assistant manager got in a bar brawl and then was arrested, only to be in the local newspaper the next day, which clearly embarassed your company. Then a couple days later, one of your truck drivers lost his license due to a drunk driving conviction that occurred while he was not on duty. Yep, the public found out about that one too.

Your employees have behaved in a way that represents conduct unbecoming an employee of your organization. This doctrine -- conduct unbecoming -- was originally developed by the military to address problem behavior among military officers. So, it is a military term originally, but don't think for a minute that this is only a military term.

Many companies are now beginning to adopt this behavior standard to deal problems similiar to the ones with these two employees. Talk to your company attorney. See if you can get a policy concerning "conduct unbecoming an employee", but not necessarily to fire employees. Instead use it as a lever to motivate acceptance of help from the company employee assistance program. Frequently conduct unbecoming is related things like alcoholism, gambling, anger management issues, domestic violence issues, drug use and many more.

If so with violations of conduct unbecoming, you have a lot of leverage, not to fire your best and brightest, but to motivate them to accept help for personal problems that have brought disrepute. With this leverage, you can get the employee to the EAP by using job security as a proactive lever to gain compliance.

Be careful. Always coordinate discipline decisions with your human resource advisor. One issue that requires attorney opinion is how to act on such a policy and avoid being accused by the employee of defaming his or her character. If an employee can point to the employer and say it imputed incompetence, stupidity, unworthiness of continued employment, or dishonesty to the employee, then their is a case for a defamatory claim.

Conduct unbecoming -- is it in your employee handbook?

Supervisors with No Authority to Conduct Evaluation

Have you experienced this problem: You supervise your employee’s work, but do not conduct her performance evaluations? This dynamic invites enormous and frequently conflicts that will prompt your employee to run to the next level supervisor for every one --the supervisor who conducts performance evaluations. Although most employees naturally accept delegated authority in supervision relationships, if you do not conduct your employee’s performance evaluation or have no role in its final outcome, your employee will not feel accountable to you. This dynamic contributes to conflicts. A troubled employee may take advantage of this situation, making it difficult to correct performance. Conflicts can increase if the manager at the next level (who does conduct performance evaluations) acts as an accessible arbitrator. This can cause the troubled employee to feel a safe harbor exists, reduce motivation for correcting performance, and reinforce the perception of non-accountability to the immediate supervisor. The interventions for this problem include reinforcing proper communication channels by requiring the employee to go through the supervisor first, making the immediate supervisor's contributions to the performance evaluation weigh heavily. Never ask your "assistant supervisor" to supervise an employee, but refuse to give this person evaluation authority in some small respect. A little is all it takes to completely change this destructive dynamic.

Reasonable Suspicion Excuse Trap #2: "Hey, It's Mouth Wash

Tip 2: “It’s mouthwash.”

This statement can put you in a tough spot because it seems plausible enough to introduce doubt. Don’t let this sway you from testing your employee.

If you can smell alcohol on your employee’s breath, then you can document it to support a test for reasonable suspicion. You’re also likely to have other supporting evidence like slurred speech, erratic behavior, trouble walking, etc. If your employee has been at work for awhile, you can ask him/her to show you the mouthwash, but don’t require it.

You’re focused on smell. It doesn’t make any difference whether the employee used mouthwash or not. Ethyl alcohol-based beverages and their metabolization have a common smell. The supervisor does not have to describe the smell of alcohol. “I smelled alcohol” is good enough. Document your observations and administer a test as quickly as reasonably possible.

Be careful not to accuse or rush to judgment. It might be mouthwash, or maybe not. Avoid getting into arguments with your employee. Your goal should be to keep your employee calm and allow your testing to determine whether there’s a significant amount of alcohol in his/her system. You don’t have to prove anything right now other than reasonable suspicion. Explain to your employee that the best way to clear up any confusion is take a required test.

Keep in mind that your employee may be telling you the truth and still be intoxicated. Some alcoholics in the later stages of the disease have consumed mouthwash in quantities large enough to induce intoxication—some mouthwashes are 50 proof or more. Alcohol rehabilitation facilities ban mouthwash based on their potential for abuse. Alcohol and Drug Training Certification for Supervisors

Reasonable Suspicion Trap #1: "I haven't had a drink since last night!"

In the heat of the moment, this excuse can seem quite reasonable, especially for those of us who have had a few late nights ourselves. Here's something you probably won't consider in the heat of the moment--just how long ago was "last night"? And, quite frankly, its irrelevant. Is the smell there? But, let's play along for a minute.

Depending on when your employee stopped drinking, it can be as few as 3-4 of hours.

Knocking off at 4am and catching a couple hours of sleep before work may fool your employee into thinking it's a new day, but he can't fool his body. Sleeping doesn't metabolize alcohol and sober you up any faster than if you were awake.

But isn't even 4 hours long enough to sober up? Not necessarily. Don't make the mistake of projecting your own consumption habits onto your employee. He may have consumed an amount that far exceeds your own capacity. An alcoholic with a high tolerance who drinks 12 beers, and then quits at midnight will still be drunk the next day at 8 a.m., and especially if there are any sort liver problems. And they're probably are.

Employees who have a high tolerance to alcohol could have their last drink late at night and still be under the influence well after sunrise. They don't have to drink just before coming to work or first thing in the morning to be under the influence. Don't let this statement convince you that a test is unnecessary.

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Hey, what a great group of cool people we have in our office

Okay so you have nice informal work environment, no ties, everybody "high-fiving", no problems--even a softball team! So you make frequent "crude" and embarrassing sexual remarks to both men and women in your work group. Not one has ever complained, plus you're not talking and much less not targeting anyone. Hey, it like TV! You know, "that's what she said". You're pretty "rowdy" group and some of us even respond with approval at times. It can't be sexual harassment if no one person is the "target" of this behavior, right.

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That would be great, and just like TV, but unfortunately, the U.S. 9th Circuit Court of Appeals (one that many don't particularly enjoy hearing from) recently ruled that harassing, abusive, and crude remarks can constitute sexual harassment, even though a supervisor directed the comments to all employees. The important question to ask in all sexual harassment cases is this: Is the supervisor's conduct sufficiently severe or pervasive to alter the conditions of employment and create a hostile or abusive working environment. If so, the issue turns to whether the employer, when informed of the abusive behavior, took prompt action to remedy the situation. If supervisors remember this description, much of the gray area of questionable behavior will become clear. Also, even if a supervisor's conduct is equally degrading to both men and women, it does not make the conduct immune from liability for sexual harassment.

Do Investigations Correctly So You Don't Investigated Later!

Are there commonly used guidelines for investigating incidents in the workplace associated with disturbing employee conduct?

Well, Rule #1--talk to your human resource manager or other adviser to you don't blow this one. That being said, investigations follow a logical path to gather information about an event so that a reliable conclusion about what happened can be drawn. You must start of thinking that you are on a hopscotch. You're going to take it one square at a time.

Many organizations have specific procedures to follow concerning things like sexual harassment and other severe events, so inquire about how to conduct these types of investigations.

Generally speaking, consider these steps when investigating other conduct-related incidents: First, notify your supervisor about any incident you think needs investigating. Next, interview parties separately, and in private (ask for all details, and ask for the names of any witnesses). Create a written list of your questions so things stay consistent. Third, keep the information you collect confidential from others you interview - persons involved in an investigation are not entitled to the results of your interviews. Fourth, do not form opinions as you investigate - just write down exactly what is said and move quickly in your investigation; and fifth, arrive at a conclusion - do not disclose the nature of administrative or disciplinary actions, if any, to complainants or witnesses. With this information, discuss your findings with a confidentially approved party. That could be an attorney, but do not forget your employee assistance program professional. Lots of confidentiality there. This might be your final stop before a decision or taking the results to the next level of management.