What if you had an employee who apparently showed up to work drunk and then loudly swore at a coworker within earshot of customers? Would you: (A) fire the employee on the spot, (B) investigate and then terminate if evidence shows the accusations are likely true, or (C) let it go to prevent the employee from claiming discrimination, retaliation, violation of the right to engage in protected concerted activity, or causing some other problem? 
Some attorneys who focus on employment matters recently considered the question, and they advise choosing answer B—be careful but don’t tolerate unacceptable behavior.
In the situation under consideration, several supervisors reported that the employee was drunk, but she denied that the incident happened. The employer wondered if firing was justified.
At-will or contract employee?
“It’s probably OK to fire the employee, but be careful,” Reggie Gay, an attorney with the McNair Law Firm, P.A. in Greenville, South Carolina, wrote in the September issue of South Carolina Employment Law Letter. “When you’re contemplating a termination, there are numerous legal issues to consider.”
First, Gay says, determine whether the employee is an at-will employee or is covered under a contract. If a contract is involved, the employer has to abide by the contract language in conducting the termination. If the employee is at will, the employer just has to make sure the firing isn’t for a reason prohibited by state or federal law, such as discrimination based on race, gender, religion, or other protected classes.
NLRA concerns
Also, Gay reminds employers that they have to consider the National Labor Relations Act (NLRA). “In a number of recent cases involving employee terminations based on shouting, cursing, and other acts of ‘insubordination’ or ‘disrespect’ toward coworkers and supervisors, the courts and the National Labor Relations Board (NLRB) have held that the employees were engaged in protected concerted activity under the NLRA,” he wrote.
The NLRB looks at certain factors in considering whether an employee’s behavior qualifies for protection under the NLRA. “In general, if the outburst involves a matter related to employment, it may be protected,” Gay says. But if the outburst occurs in the presence of customers or the public or is threatening or physical, it’s likely not protected.
Also, if the employer has allowed similar conduct before, the employee’s actions may be protected, Gay says. And if the outburst is a reaction to an unfair labor practice, it may be considered protected.
ADA concerns
The employer didn’t say it suspects that the employee is an alcoholic, but even if she is, firing is likely justified. People with alcoholism are protected under the Americans with Disabilities Act (ADA), but “only to the extent that they are qualified to perform the essential functions of their job,” Jennifer Suich Frank, an attorney with Lynn, Jackson, Shultz & Lebrun in Rapid City, South Dakota, wrote in the September issue of South Dakota Employment Law Letter.
The ADA allows employers “to discipline, discharge, or deny employment to an alcoholic whose use of alcohol adversely affects her job performance or conduct,” Frank says. “In other words, employees who are alcohol-dependent can be held to the same performance and behavior standards as workers who don’t suffer from alcoholism.”
Reports of misconduct
Of course, the employer needs to investigate before firing to make sure the accusers’ stories add up. Jonathan C. Sterling, an attorney with the Carlton Fields law firm in Hartford, Connecticut, wrote in the August issue of Connecticut Employment Law Letter that the employer probably is on solid ground in deciding to fire the employee.
“Although you can never guarantee that a fired employee won’t sue you, courts have been consistent in applying a couple of rules that will help you defend a lawsuit if the employee files one,” Sterling says.
First, courts have said that “employers are entitled to rely on reports of employee misconduct when making discipline decisions, even if those reports are mistaken,” Sterling says. The only exception might be if the principal witness has an improper discriminatory motive for making a false report.
“Second, although antidiscrimination laws may protect someone with a drinking problem if her alcoholism is a disability, those laws don’t protect drunken behavior at work,” Sterling says. “In short, you don’t need to tolerate an employee’s drunken misconduct.”