Carrie Mason-Draffen Newsday columnist Carrie Mason Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues.

DEAR CARRIE: Last year I fired an employee in my auto body shop after he was caught sleeping on the job. It was the last straw. He had been with us for about five weeks on a probationary basis and just wasn’t working out. For example, it typically takes my workers an hour to remove a bumper and reattach it. It took him three hours just to put a bumper on. One day one of my managers nabbed him sleeping under a car on a short lift in the repair shop bay area. He said he was sleeping because he was a recovering drug addict and taking methadone. I fired him. The next day he showed up to pick up his check and asked me to reconsider. I told him no. I thought that was the end of it. Almost a year later, I got a notice from a state agency that he had filed a discrimination complaint. Then I received another notice saying the agency had found “probable cause” that I had discriminated against the guy. I feel that I fired someone for just cause, and for an agency to come back with a possible discrimination charge is totally wrong. Granted, I didn’t keep a paper trail on the guy because he was hired on a probationary basis. So in the end it was basically his word against mine, and I have lost out — at least so far. Do I have any recourse? — Firing Backfired

 

DEAR BACKFIRED: The lack of a paper trail is something that comes back to haunt many employers even when they feel completely justified in firing a problematic employee.

“If this employer desired to wait to see improvement, it should have constructively criticized and ... documented the employee’s performance problems when they occurred,” said employment lawyer Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola. “Ideally, the documentation could have been in writing [and] issued to the employee identifying his shortcomings.”

Grimaldi noted that federal laws such as the Americans with Disabilities Act and similar state laws prohibit employers from discharging an employee who is in recovery from drug addiction or alcoholism. The ADA does not protect an individual who currently engages in the illegal use of drugs, but may protect a recovering drug addict who is no longer engaging in the illegal use of drugs and who is qualified to perform the essential functions of the position.

For that reason the timing of the firing was problematic.

“It appears the employer sat on the problem until the employee disclosed his status as a recovering drug addict,” Grimaldi said. “Upon discovery of this fact, the employer should have consulted with skilled counsel to determine what impact, if any, this fact would have on its decision to terminate the employee.”

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You contend that the employee was unqualified as he was caught sleeping on the job and had been a poor performer. In response, the employee may have offered the state agency a wholly different account: that he was qualified, since you didn’t criticize his performance for more than five weeks; that he didn’t sleep at work; that he is a recovering drug addict; that his methadone usage was prescribed and is lawful; that it had no adverse effect on his performance and that his termination occurred only when these facts were disclosed to the employer.

“Given the numerous contested facts, it is likely [the state agency] punted the case to a hearing so a judge can determine what occurred between the parties leading to the employee’s discharge,” he said.

So all is not lost. You may still be able to prevail in the final determination — but only after this rude awakening.