Employee’s Drug Use Is Bringing Quality, Morale Down : Also, I came back from leave to find my duties reduced. Is that legal? . . . Can I suggest training for my co-workers?

Do you have a question about an on-the-job situation? If so, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; call (714) 966-7873 and leave a voice mail message, or send e-mail to [email protected] Questions of general interest will be answered in this column on Mondays.

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Q: An employee at the manufacturing company I work for uses drugs on the job frequently. Although management is aware of the problem, they do not approach him because he is the brother of the production manager.

His drug use is affecting his work. Because he is important to the production process, quality also is affected. Yet management blames the whole department for the low quality. I don’t know how to begin going about this problem.

--D.R., La Habra

A: It certainly seems unfair to blame the whole department for the substandard work of one employee who is on drugs. There is an obvious double standard in the workplace.

You might begin by reviewing your company’s own policy regarding drugs. Read the employee handbook or other written policy statements. Determine if the employer has violated its own stated rules. This will help establish your claim for breach of contract.

Consider safety issues. Does the employee on drugs present a hazard to other workers or ultimately to the consumer of substandard products? Research if the employee’s drug use is, in fact, illegal. Is this an occasional use of mild drugs, or blatant addiction to illegal hard drugs? Is the use something for which the employee could be arrested and convicted of a crime?

You have a number of options. You could submit confidential correspondence to the human resources department regarding the problem. You could divulge your own name in a complaint after asking for privacy. If privacy is breached, you may have a claim against the company for the damages you incur.

A letter could be written in a very positive manner, if the main point is increasing production, not particularly attacking the other employee. Out of courtesy, you could direct the letter confidentially only to the production manager. If the problem is not resolved to your satisfaction, you could go to the next level of management. As an alternative you could totally avoid the production manager by going over his head to the owner and request confidentiality.

As a last option, even though it is a very severe one, you could complain to the police department and actually have the other worker arrested. Although it will obviously not endear you to his brother, the production manager, you will be legally protected from retaliation.

Complaining about a safety issue in the workplace, illegalities or discrimination in the workplace is a protected activity. It you are retaliated against because of these actions, you will have a valid claim against your employer.

--Don D. Sessions, Employee rights attorney, Mission Viejo

After Leave, Job Duties Changed; Is That Legal?

Q: I returned from a six-week leave of absence (due to a death in the family) to the same pay, same title, but to different job duties. These duties fit the description of a position below the position I was in before I went on leave.

When I confronted my employer, asking for my previous duties back and threatening to leave the company, I was told to go ahead and look for another job. Is what the company did legal?

--K.M. Anaheim

A: Probably. Unless you have a written contract with your employer that guarantees you certain job duties, your employer is free to change those duties. Your employer even could have reduced your pay along with reducing your duties, but apparently did not.

There are only two possible exceptions. First, if your employer is subject to the Family Medical Leave Act, and you qualified for and took family medical leave during the six-week leave of absence you described, your employer was obliged to return you at least to a position comparable to the one you held before your leave. If you, in fact, have been demoted, the position you now have may not be comparable. Second, your employer could not demote you for reasons that violate the law, such as for discriminatory reasons.

--Michael A. Hood, Employment law attorney, Paul, Hastings, Janofsky & Walker

No Notice Needed With ‘At-Will’ Contract

Q: My husband was laid off without notice and without any review of his performance after a little more than six months on the job and passing his probationary period. He has a contract that can be terminated at will by either party, but doesn’t this company have some obligation to provide cause for termination? Don’t they have to give some sort of severance pay or notice prior to doing that? Is this wrongful termination?

--J.C.

A: No, it’s not a wrongful termination.

Your husband’s “at-will” contract of employment means that he could be terminated at any time, for any legal reason, without notice. Although his employer could not terminate him for some illegal reason, such as discrimination or because he filed a workers’ compensation claim, his employer did not have to have “cause” to terminate.

The fact that your husband completed his initial probationary period does not change his status. While courts will sometimes consider that a long-term employee no longer is an “at-will” employee, a mere six months of service is clearly not enough. Nor are employers obligated by law to give performance reviews or provide severance pay. Only if your husband’s former employer had a specific written policy or contract obligation providing for severance pay would such pay be required.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor law instructor, UC Irvine

How Should I Suggest On-the-Job Training?

Q: In the company that I work for, there is no formal training process. Individuals who have been hired for the company are assumed to already have the experience for the job.

However, in most cases the employees lack a lot of important experience and knowledge. I know it’s nothing that a couple of hours of good training wouldn’t fix.

How might I go about suggesting this to the company?

--K.M, Fullerton

A: Unfortunately, orientation and training programs for new employees have sometimes not been a high priority, due to oversight or perceptions that such programs are too costly. However, research clearly shows that training of new employees pays for itself many times over in increased worker productivity.

It sounds like you are quite aware of the training needs of new employees in your company. You should talk to someone in your training or human resources areas. Perhaps you could also put together some sort of proposal for your company, outlining the areas in which you feel new employees need to be trained.

--Ron Riggio, Professor of industrial psychology, Cal State-Fullerton