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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT