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Boulukos: Guiding clients through an executive intervention

March 12, 2014
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Indiana Lawyer Focus

By Manolis Boulukos

In the opening sequence of “Mad Men” – the popular AMC drama about hard-drinking Madison Avenue execs in 1960s New York – we watch as an animated silhouette of Don Draper, the series’ alcoholic anti-hero, plummets from a skyscraper through a kaleidoscope of iconic advertising images. He falls and falls, but we never see him hit the ground. And then, quite suddenly, he is back in his armchair, cigarette in hand. Viewers are left to wonder: When will the hard landing come?

boulukos-manolis.jpg Boulukos

When an executive’s substance abuse triggers a personal and professional free fall, colleagues may be slow to recognize that the bottom is coming – and fast. At some point, and hopefully before permanent damage has been done, the fact that the leader has become a liability is impossible to ignore. But, as critical as it is to acknowledge that a problem exists, that is, to borrow from the vernacular of addiction recovery, only the first step. Deciding to take action is one thing; deciding what action to take is quite another.

One measure some organizations are choosing is the “executive intervention” in which the executive is confronted by colleagues (and sometimes loved ones) and given the choice between treatment or facing serious, employment-related consequences. Traditionally used within the family context, there is evidence that an intervention may be even more effective when tied to the substance abuser’s employment.

Although staging an executive intervention may seem extreme, one need not look far to see how quickly a leader’s misadventures with drugs or alcohol can become a social media fiasco, causing lasting damage to the reputations of both the executive and the organization. Consequently, for an organization concerned about its leader’s substance abuse, the executive intervention may present an appealing option to address the problem before it becomes a full-blown crisis.

Lawyers with clients considering this unconventional approach will certainly want to encourage the client to consult with a substance-abuse expert as to whether an intervention is advisable from a clinical perspective. From a legal perspective, clients will also need to understand the unique legal risks involved in conducting an intervention in the workplace setting.

At the outset, it is clear that taking no action, or ineffective action, to address an executive’s substance abuse entails its own set of legal risks. Officers and/or board members may have an affirmative legal duty to protect the organization and its shareholders from the acts or omissions of the troubled executive. Among other chilling possibilities, their inaction could expose the organization – and, conceivably, officers and board members themselves – to shareholder actions, sexual harassment lawsuits, tort claims alleging vicarious liability or negligent retention, and governmental enforcement actions based on the executive’s neglect of duties.

If the client determines that an intervention is necessary, the most obvious risk from an employment perspective concerns the Americans with Disabilities Act. Under the ADA, current alcohol abuse may be a covered disability. (In contrast, current illegal drug use is not a disability under the ADA.) Thus, although the ADA allows employers to discipline employees who misuse alcohol in the workplace, an employee suffering the effects of alcohol addiction outside the workplace may be entitled to a reasonable accommodation. Generally speaking, the ADA requires that employers provide a qualified employee with a disability a reasonable accommodation that allows the employee to perform the essential functions of his or her job, unless such an accommodation would create an undue hardship.

More specifically, the ADA has been interpreted to require the employer to engage in an “interactive process” with a disabled employee to discuss the need for, and contours of, potential accommodations. According to the Equal Employment Opportunity Commission, the employer may select from among several accommodations that qualify as reasonable, assuming that each alternative is effective. Consequently, an employer whose “bottom line” at an intervention demands only one option for treatment – say a two-week stay in an inpatient facility followed by outpatient treatment and attending group meetings – may violate the ADA’s accommodation requirement by refusing to discuss other alternatives, for example the executive taking a longer period of leave or receiving outpatient treatment only.

In addition, the ADA’s provisions regarding the confidentiality of medical information may come into play. The organization may find itself in a bind when a top leader takes an extended leave and the ADA limits disclosure as to the reason for the executive’s absence. Also, if, in conducting the intervention, the organization treats the executive differently from other similarly situated, non-disabled employees on the basis of his or her actual or perceived disability, or on the basis of another protected characteristic such as race, age or gender, it may face a discrimination claim under the ADA or another anti-discrimination statute.

Beyond employment discrimination concerns, the executive’s employment contract may pose obstacles to forcing an intervention – and, in particular, to any “bottom-line” consequences that may be intended to secure the executive’s cooperation. In the case of an executive with an ownership interest, there is the question of who is empowered by the organization’s corporate governance structure to force conditions of employment on the executive.

Deciding whether to stage an executive intervention involves weighing numerous and complex potential legal risks. Ultimately, of course, the decision is the client’s to make. The role of counsel is to help the client understand and prepare for the legal consequences that may result. Here are a few key legal issues that should be considered when assisting a client in evaluating or pursuing an executive intervention:

1. Advise the client to seek the advice of a professional with expertise in treating substance abuse to determine whether an intervention is an appropriate course of action, and, if so, to guide the client in planning and conducting the intervention.

2. Once there is a preliminary intervention plan, review and identify potential risks – and consider measures to reduce or eliminate them. Make sure that your client has considered what will happen if the executive is not cooperative.

3. In particular, consider whether the ADA will apply under the circumstances, and how that may affect the client’s desired “bottom line” and its plans for dealing with the executive’s absence (if any).

4. Review relevant employment contracts and corporate governance documents to determine their impact on the intervention plan, including, among other things, the organization’s legal ability to remove the executive and the price of doing so.

5. Finally, consider the ethical implications of advising the organization on the intervention, particularly if you have worked closely with the executive in question. This is one of those instances in which asking yourself “Who’s the client?” could be critical in avoiding a professional misstep.•

__________

Manolis Boulukos is an attorney in Ice Miller LLP’s labor and employment group. Manolis advises clients on matters including federal and state litigation, wage and hour issues, and administrative proceedings before the EEOC and NLRB. The opinions expressed are those of the author.

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  1. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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