[QUOTE=StarvingButStrong]
Thank you all for your advice, and the great links. Yes, it sounds like they have a perfect right to get rid of this guy.
A potential snag is the nature of the company. It was a one-guy-in-his-spare-time startup not that long ago. His first three ‘employees’ were all relatives, in fact, his mother is still the ‘office manager.’ He may have a couple dozen employees by now, but some are part-time, and others I think might be considered independent contractors.
Basically, there’s NO HR department. The owner personally hires/fires, and any other personnel type stuff gets done by his mother. Or not – she’s a softy, and yes, she might be doing her best not to ‘notice’ there’s a problem so she won’t have to deal with it.
I’ll suggest to Mary that she suggest to the owner that he needs to get an employee’s handbook made up that covers this, since probably he’s never gotten around to that. Then, what? I guess give all the employees copies, make them sign that they’ve read it and agree? And then wait for the drinker to slip again?
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As an HR person, but not their HR person and not a lawyer, my impression is that documenting what has taken place so far would be sufficient to terminate this person with minimal legal risk. I recommend consulting an attorney with employment law experience on a one-time basis to confirm this, then most likely going ahead with the termination. You don’t need to give a reason to term someone. He may file for unemployment and they will have to decide whether or not to contest it. Compiling more documentation, doing a performance plan, etc. would help contest unemployment, but is it really worth it with this guy in the finances??? Also, failure to term someone for this type of behavior sets a precedent next time an employee does something similar, who may be of a different race, sex, age or religion. The failure to term him ASAP after the open bottle incident has already created this risk to some extent.
The employee handbook is a good idea, too. There are HR consultants who will do this, the employment law attorney could probably do one, and there is software to buy that gives basic templates.
Note: upthread someone mentioned “probationary period.” This carries no legal weight. It may influence internal company practices, but doesn’t change what employment laws apply, except perhaps if it is formalized in a union contract.