Can you force a blood-alcohol test?
Maintenance Utility Worker Joe Breen was a loud-spoken, heavy-drinking employee. Was he classifiable as an alcoholic? Maintenance Foreman Peter Goodkin didn’t know, but he didn’t want to take any chances.
One of Breen’s jobs was to monitor the operation and performance of two separate boilers. Slipping up could have dangerous consequences.
Breen returned from lunch on a particular occasion and looked somewhat bleary-eyed.
Goodkin asked him, “Hey Joe, how many drinks did you have at lunch?”
Breen grinned. “One. I had a malted.”
“I’m not fooling around, Joe. How many did you have?”
“One or two,” Breen grumbled.
“Come with me to the Health Office. I want your blood-alcohol level tested.”
“No way. That’s a medical examination.”
Goodkin’s response was no less brusque. “You either submit to that test or clock out and go home.”
Breen searched for his unit representative.
Question: Can the worker be forced to take the test?
Ratner’s verdict: Plant Engineer Bill Ratner responsed firmly. “Breen either submits to the test or suffers the consequences. In order for management to insist on a medical exam, it must be job-related and qualify as a business necessity. Breen’s job performance is critical. His responsibilities clearly rank as a safety consideration.”
Don’t get even — Get smart
From almost day one Maintenance Foreman Mike Sokolsky had Carpenter Grade I Carmen Lopez pegged as a malingerer. His performance was rated “Satisfactory” in concession perhaps for Sokolsky’s awareness that the vibes between the two men weren’t good. The supervisor all but convinced himself, in fact, that he wasn’t prejudiced. Nonetheless, deep down he believed that Lopez seized every opportunity he could to get out of work.
His conviction hardened following an incident in which Lopez sustained a job injury. Run down by a slow moving plant vehicle, the carpenter injured his back, was hospitalized for a week, and advised by his doctor to stay in bed for three weeks. This recommendation was agreed to by the company physician.
From Sokolsky’s viewpoint the medical leave couldn’t have happened at a worse time. The department’s workload was piled up. Every worker was needed. The foreman felt that Lopez’s injury was faked, that the guy was goldbricking.
Sokolsky telephoned Lopez and explained the situation. “I need you to come back to work.”
“I still have another week of leave,” Lopez replied. “Doctor’s orders.”
The foreman muttered an imprecation under his breath. He was losing patience. “Look, Lopez, either show up tomorrow morning, or else.”
“What do you mean by that?”
“Fail to show up and you’ll find out.”
When Lopez clocked in a week later, Sokolsky informed him that he had been demoted to Grade II with a significant reduction in pay. Furious, the carpenter threatened to sue.
Question: If the employee follows through with his threat, how do you rate his chances to win?
Murdock’s mandate: “Restore Lopez to Grade I,” Plant Engineer Ralph Murdock instructed Sokolsky. “Two doctors agreed on the recommendation for three weeks of bed rest. You were out of line ordering him to return to work prematurely. Worse still, his demotion to Grade II was clearly a retaliatory decision, and a violation of ‘public policy.’ In one recent case a sales manager for Dillard’s Department Stores was awarded compensatory and punitive damages of two-and-a-half million dollars, plus attorney’s fees, in a similar retaliatory case. I shudder to think how much this could cost the company if Lopez takes the case to court.”
Suspicious employee behavior: What to do?
In God we trust. All others pay cash. Maintenance Foreman Leo Sperling believed in this credo. He trusted in God wholeheartedly. About certain members of the crew, he wasn’t so sure.
One employee in question was Utility Worker Jerry Shea, a marginal employee, and in the foreman’s opinion, a bit on the sleazy side. According to some consultants who specialize in the subject, industry loses as much as $5 billion a year to pilferage.
In recent months, inventory shrinkage in this plumbing supplies manufacturing plant was becoming more and more of a problem. Tools and supplies “disappeared” regularly, along with personal items like watches and wallets.
In Sperling’s view, Shea was a suspect. For one thing, his assignments gave him access to every part of the plant. For another, he worked alone. For a third, well, Sperling couldn’t exactly put his finger on it, but his instincts told him Shea was a man to watch.
The April day was unseasonably warm. At clock-out time, security had been tightened in response to the growing theft problem. Exit guards had been instructed to be especially vigilant.
At lunch time that day, most of the crew wore light jackets, and some wore no jackets at all. By contrast, Shea had on a heavy jacket more appropriate for cold weather. In addition, the guard thought he looked more bulky than usual.
“Open up your jacket,” the guard demanded.
“What for?”
“Because I asked you to.”
“No way. That’s an invasion of privacy.”
The guard rang up Sperling and reported Shea’s response to his request.
“I’ll be right down,” the foreman replied.
When Shea persisted in his refusal to open his jacket, Sperling gave him the option to either comply or be terminated. Shea punched out and took off.
Question: Did Sperling have the right to demand that Shea open his jacket?
Bergen’s verdict: “Pull his timecard from the rack and terminate him,” Plant Engineer Phil Bergen instructed. “The labor agreement specifies the right to conduct locker and body searches as deemed necessary to safeguard company assets and adhere to reasonable security measures.”
Exert gentle pressure on professionals
Plant Engineer George Ratzloff was upset. Reviewing the past year’s Turnover Report, he noted what he regarded as an unacceptable number of resignations and transfer requests. Of major concern was that several supervisors, engineers, and other professional employees were involved.
Hoping to pinpoint the root cause, he narrowed down the largest incidence of quits and transfer requests to a particular group headed by Project Supervisor Ralph Turmilino.
Ratzloff telephoned the engineers who had quit at their homes. After convincing them that his purpose was not to get people in trouble, he persuaded them to level with him.
As one engineer put it, “Ralph’s a top-notch technologist, conscientious and knowledgeable, but I found it difficult working with him.”
The engineer hesitated. “For one thing the guy is on your back constantly. He scrutinizes every detail of the project, and puts the screws on to do everything exactly his way. Instead of letting you do your job, he seems intent on doing it for you.”
The second engineer echoed these comments. “I’m an experienced engineer, not a trainee. A man needs a certain amount of independence. Also, at times I got the impression that no matter how hard I worked, from Ralph’s point of view, it was never enough.”
The supervisor who had transferred out of Turmilino’s group was more reluctant to talk. She did say, “He was always peering over my shoulder.”
Question: In Ratzloff’s shoes, what action, if any, would you take?
PE’s advice: Ratzloff summoned Turmilino to his office. “Most employees need a certain amount of pressure, either self- or boss-applied, to function at their best. But minimal pressure is usually more effective than tightening the reins. Keeping too close control can be stifling and is apt to produce more damage than good.”
Stung because he failed to read the fine print
When Clint Flynn applied for a maintenance utility job at a Virginia-based paper products plant, he was handed a 2-p employment agreement to sign. Flynn briefly glanced over the form and scrawled his name on the bottom.
“People who are anxious for work will mindlessly sign almost anything,” notes labor relations expert and AAA arbitrator Leonard J. Smith.
Such was the case with Flynn. A clause in the agreement he signed stated that “In the event an on-the-job dispute should arise, it would be settled by binding arbitration.”
After six months on the job, Flynn developed a carpel tunnel syndrome condition in his right wrist that grew steadily worse. He was unable to perform certain tasks that were part of his regular job. This became an increasing annoyance to Maintenance Supervisor Charley Glover.
When Flynn explained the problem to his boss, Glover’s response was impatient. “If you can’t handle the job, your best bet may be to seek other employment.”
“Under the Americans with Disabilities Act,” Flynn protested, “the company is supposed to make reasonable allowances for employees with physical problems.”
When Glover refused to heed his demand, Flynn threatened a grievance.
The worker was referred to the clause in the agreement he had signed specifying that his case would be settled by binding arbitration.
“I don’t know anything about that,” Flynn replied.
Flynn appealed to Bernard Bundy, his unit representative, for help.
Bundy said that in some cases the Equal Employment Opportunity Commission had the option to override the agreement he had signed.
Question: How would you deal with this case?
Gordon’s decision: Plant Engineer Chester Gordon asked Glover, “What percentage of Flynn’s assigned tasks aggravate his carpel tunnel condition?”
“Maybe 15 to 20 percent.”
“Assign those tasks to someone else,” Gordon instructed. “Fill the gap with other assignments. It may seem like an inconvenience, but the goodwill and morale boost should more than compensate. And it will eliminate a much greater annoyance should Flynn appeal to the EEOC.”
Workers temporarily temporary can be asking for trouble
Specialist Mechanic Ted Miflin really wanted to know: “When am I going to be put on the regular payroll?”
He had been asking his boss, Maintenance Supervisor Edgar Griffith, this question on and off for almost three years since the day he had been hired as an “independent contractor.”
A handful of specialists in various categories, such as Miflin, had been taken on as independents. The company’s rationale in making this distinction was that it allowed increased flexibility in assigning these relatively high-priced people. It was a good deal for the employer.
As a contractor, Miflin, who worked approximately three quarters of the time, was not entitled to vacation, sick time, health care, or retirement benefits.
He was denied a host of other benefits as well. When hired, he had been told that eventually his status would probably become permanent. It hadn’t happened.
The talented tech worker found himself between the proverbial rock and a hard place. He had reached the point where he was ready to sue.
Griffith was concerned. He felt that Miflin had a point and expressed the opinion to Plant Engineer Harold Turner.
Question: If Miflin takes his gripe to court, do you think he has a viable case?
Turner’s decision: “I’m inclined to agree with you,” Turner told the foreman. He instructed him to switch Miflin to the permanent payroll.
“Should he sue,” Turner added, “there’s a good chance he could take the company for a bundle.”
To support this opinion, he cited a case in which an applicant was hired as an independent contractor and encouraged to take the job as a “foot-in-the-door” opportunity that would likely be permanent. When this didn’t happen, a case involving this employee and others developed in which heavy payments were awarded to several independent contractors and temporary workers who worked at least half time for five or more months during the year.
Companies had been stung by similar rulings, Turner added, including Microsoft, Time Warner, and Atlantic Richfield, among others.
Discrimination: Train or bear the pain
Compliance with discrimination laws can be tricky; trickier still when supervisors are uncertain what is required of them. In recent months cases have been lost because key people weren’t properly trained.
In a situation reported by Personnel Policy Service, Inc., the Seventh Circuit Court of Appeals upheld a jury award of $50,000 for “willful violation of the Age Discrimination in Employment Act” (plus an equal amount in compensatory damages) largely based on inadequate supervisory training about age discrimination.
At an Ohio manufacturing plant, Ethel Parker, an electrician, was denied a promotion to unit leader and threatened to sue the company for discrimination on the grounds of being passed over because she was Hispanic.
Her boss, recently promoted Maintenance Supervisor Bud Forman, vehemently protested the allegation.
“She can sue all she wants to,” he told Plant Engineer Gerald Richardson after informing him of Parker’s threat. “There’s no basis to her claim.”
Question: In Richardson’s place what action would you take?
Richardson’s response: “Are you enrolled in the company’s discrimination training program?” Richardson asked Forman.
“Yes I am. I recently signed up for it. It will run another day or two.”
The executive nodded thoughtfully. “Okay, we’ll tell Parker that her case will be taken under advisement. After you complete the program, we’ll double check to be sure you are in full compliance. I want to make sure you have the training under your belt before dealing with Parker.
The company’s training program followed the general guidelines prescribed by Personnel Policy Service, Inc.
These included updated information and instruction regarding the following:
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Federal and state equal opportunity laws, how to implement them, and the legal consequences of noncompliance.
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Steps to eliminate workplace discrimination.
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Benefits of implementing the equal opportunity laws.
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How to respond to discrimination complaints.
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Proper documentation of complaints and their resolution.
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- Can you refuse a moonlighter sick pay?
Stock Handler Mort Gilchrist called in one Monday to inform Maintenance Foreman Joe Conn that his knee was killing him.
“My doctor ordered me to stay home for a week and rest.
Conn expressed his sympathy, told him to take it easy, and said he would put him in for sick leave.
When Gilchrist returned to work the following Monday, he was confronted by an angry boss. “You thought you could get away with it, didn’t you?”
Conn didn’t hide his surprise. “Get away with what?”
“You know what: Collecting sick pay while working on another job.”
“There’s no law against that,” Gilchrist snapped back. “My doctor didn’t confine me to bed. All he said was to stay off my feet and rest.”
“You call working another job resting?”
“Absolutely. Sitting on my butt clocking in orders as a temp is a far cry from lifting heavy cartons and hustling hundred pound cases. I need the extra bread, so what’s so terrible?”
“What’s so terrible,” Conn replied, “is that you’re either sick or your working. I’m killing the requisition for sick pay.”
“We’ll see about that,” Gilchrist said.
Question: Is the foreman within his rights to refuse Gilchrist sick pay?
Birdman’s verdict: “Give the guy his sick pay,” Plant Engineer Jerry Birdman ordered Conn. “His rationale makes sense, and no clause in the contract prohibits an employee from working another job while on sick leave. Had his moonlighting involved work that was a strain on his injured knee it would be a different situation entirely.”
Can you unilaterally change an employee’s longstanding lunch hour?
His noon lunch hour had been the highlight of Maintenance Department Repair Specialist Dwayne Noonan’s workday for as long as he could remember. He ate at Pete’s Grill with his buddies, and over a couple of beers and a pastrami on rye they had a jolly old time.
That’s why, when Maintenance Foreman Tom Delis informed Noonan that his lunch hour would have to be temporarily switched from 12 to 1 the hot-tempered mechanic all but blew a fuse.
“Why me?” he demanded.
Delis’s things-to-do list was overloaded that day and he had neither the time nor patience to chat with Noonan.
Delis snapped back, “Because with Joe Gelding on vacation and a critical production work order in progress, we can’t afford for the department to be without a repair specialist on hand.”
Noonan refused to settle for this explanation.
“One lousy hour,” he replied, “isn’t going to shut down the plant.”
When Delis persisted, Noonan’s response was “No way!”
The employee’s refusal tied a time bomb to the end of the foreman’s patience.
“We’ll see about that,” he threatened and made a beeline to his boss’s office.
Question: In Plant Engineer Andy Rudin’s shoes how would you deal with this situation?
Rudin’s response: “You’re within your rights,” Plant Engineer Al Rudin told Delis. “But rather than stubbornly persist why not try a little diplomacy first? Did you ever do Noonan a favor?”
Delis responded, “Yeah, last year I went out of my way to okay his vacation request for the last two weeks in July so that it could tie in with his wife’s vacation time.”
“Why not remind him of that and let him know that he owes you one?”
When the foreman tried the suggestion Noonan, conscience pricked, was placated and reluctantly agreed to the switch.
Bringing a new employee up to snuff
Instrument Repairman George Weldon pretty much lived up to Maintenance Supervisor Jeff Lubarsky’s expectations when he was selected from a field of candidates six weeks before. But life is never easy, Lubarsky mused. Weldon had trouble dealing with the complexities of a grinding machine. The supervisor had explained what had to be done, but Weldon still hadn’t gotten it.
“Tell you what,” Lubarsky said, “stick around after your shift, and we’ll go over it step by step.”
Weldon finally did get the hang of it, but it took two hours of patient instruction for the employee to master the skill involved. Lubarsky shook his hand and slapped him on the back. “Good man! I knew you would get it.”
Weldon was happy with his boss’s reaction, but less than pleased when he received his paycheck for the previous week.
“What’s the problem?” Lubarsky asked Weldon.
“The problem’s my paycheck. I’ve been shorted two hours overtime pay.”
“How do you figure that?”
“The two hours of instruction you gave me the other day when I stuck around after work.”
“That wasn’t regular time,” the supervisor replied. “It didn’t show up on the time clock.”
“That makes no difference; it was still job-related.”
Question: Is Weldon entitled to two hours of overtime pay?
Murdock’s decision: “Pay Weldon for the two hours,” Plant Engineer Ralph Murdock ruled. “On the clock or off makes no difference so far as overtime pay is involved. All time actually worked is compensable just so long as it relates to the job.”
Is sexual harassment always a terminable offense?
Utility Worker Jose Gonzales was in a jubilant mood. When Rose Garff, an attractive clerical employee, passed by, Gonzales suddenly grabbed her and bestowed a hug and a kiss and then patted her on the behind.
Unwilling to share his jubilation, Garff screamed and filed a harassment complaint against Gonzales for his surprising actions.
Gonzales was stunned. He attempted to explain his spontaneous action to Maintenance Supervisor Henry Lee.
“I didn’t mean anything by it,” he protested.
“It apparently meant plenty to Rose.”
Gonzales tried to explain. “I just got a call that my wife won a thousand- dollar prize in the lottery. I got carried away.”
Lee relayed his explanation to Garff.
“That’s no excuse for his irrational behavior. I want him fired as an example to others that women are human beings and not sex objects.”
Question: If this were your case to decide would you fire Gonzales?
Russo’s verdict: Cued in on the case, Plant Engineer Joseph Russo felt caught between a rock and a hard place. He arranged a meeting with Labor Relations Attorney Alma Gross in her office to seek her advice.
“The first question,” Gross said, “isn’t whether or not Gonzales is guilty of sexual harassment. He is. But question number two may be equally significant. Is he a harasser by nature? Or as he claims, was he simply carried away? In short, was the intent of his abuse to harass?”
Russo frowned. “I doubt it,” he said.
“So do I.”
At this point Rose Garff was summoned to the attorney’s office. After listening to her opinion and Russo’s reaction, she reluctantly consented not to press charges and settled for Gonzales’s 30-day suspension.
