ILNews

Boulukos: Guiding clients through an executive intervention

March 12, 2014
Back to TopCommentsE-mailPrintBookmark and Share
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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

  3. No, Ron Drake is not running against incumbent Larry Bucshon. That’s totally wrong; and destructively misleading to say anything like that. All political candidates, including me in the 8th district, are facing voters, not incumbents. You should not firewall away any of voters’ options. We need them all now more than ever. Right? Y’all have for decades given the Ds and Rs free 24/7/365 coverage of taxpayer-supported promotion at the expense of all alternatives. That’s plenty of head-start, money-in-the-pocket advantage for parties and people that don’t need any more free immunities, powers, privileges and money denied all others. Now it’s time to play fair and let voters know that there are, in fact, options. Much, much better, and not-corrupt options. Liberty or Bust! Andy Horning Libertarian for IN08 USA House of Representatives Freedom, Indiana

  4. A great idea! There is absolutely no need to incarcerate HRC's so-called "super predators" now that they can be adequately supervised on the streets by the BLM czars.

  5. One of the only qualms I have with this article is in the first paragraph, that heroin use is especially dangerous because it is highly addictive. All opioids are highly addictive. It is why, after becoming addicted to pain medications prescribed by their doctors for various reasons, people resort to heroin. There is a much deeper issue at play, and no drug use should be taken lightly in this category.

ADVERTISEMENT