Poor Performer Evaluation
- What are the HR issues that arise in this scenario?
- Where the college being the employer, is concerned, the decision that is taken by an employee to drink or use drugs is that employee’s prerogative, but when the use contravenes with their ability to carry out their duties, then the Human Resource Manager of the college will have legitimate issues. These issues are the way in which the employee’s duties are performed, issues with safety and health, the conduct of the employee and safety issues in the workplace.
- Does the college have any rights or obligations in this case?
- Because of the incidence of case laws rejecting the “in loco parentis” doctrine for the explanation of the relationship between the college and its employees, the college is not prone to scrutinize the private behavior of its employees. They expect that the employees will obey the applicable laws and assume responsibility for their actions and conduct. The college would not, under normal circumstances, invade the privacy of an employee by conducting intrusive searches, but would enable the campus security to perform their law enforcement procedures. The security would detain personnel in keeping with the appropriate procedures if they are dealing with incidents that are related to drug and alcohol use. If alcohol or drug abuse or misuse is apparent in an employee, that employee will be approached and referred for a detailed assessment. Based on the findings of the assessment, they will be presented with the relevant options for treatment. If such behavior persist, or threatens any form of disorder, disturbance, property damage, hindrance of performing their duties, or danger to the employee, then the college’s codes of conduct should be enforced. According to O’Connor at page 480 U.S. 710, searches or seizures of the property of government employees or supervisors of their employee’s private property is subject to the 4th Amendment constraints. Based on social expectations, the employee expects privacy in their place of work. This expectation is deeply rooted in the 4th Amendment’s history. The operational procedures in the workplace can cause public employees to expect an unreasonable amount of privacy.
- The supervisor, along with other officials, in this case has a responsibility to deal with alcohol problems that arise in the workplace. They are supposed to monitor both on the job performance and conduct of their employees. They are not responsible for the diagnosis of drug and alcohol use in their employee, but are responsible for taking the necessary disciplinary and corrective actions in instances where conduct and performance issues arise and refer the employee to the College’s Employee Assistance Program, if one is in place at the college. The supervisor’s role in dealing with drug and alcohol use is a critical one. The college’s obligation is to make the employee aware that their habit is destructive and poses a threat to their job security,encourage the employee to seek help or face the consequences. The case O'Connor v. Ortega, 480 U.S. 719-726 states that the determination of the appropriate method for searches conducted by employers in an area where the employee expects privacy is dependent on the context of the search. It requires a balance between the expectation of the employee and the government’s need to control and supervise them and the efficient operation that is carried out in the workplace. If the college should get a warrant each time they have to go into their employee’s office, or in this case, belongings, for a purpose that is work related, it would cause a disruption in the operations and would turn out to be unreasonable. They would need a probable cause for searches of this type. The scope for the intrusion should be reasonable.
- Is Culp entitled to the same rights that Dr. Ortega tried to argue (but lost) on in O'Connor v. Ortega, 480 U.S. 709 (1987)? Why or why not? Cite support for your opinion from the case.
- He would be entitled to some amount of rights, because based on the circumstance, the intrusion was done by a supervisor, instead of a law enforcement officer. The question of whether or not an employee can have a reasonable expectation of privacy should be determined case by case, regardless of this, the evidence supported the conclusion that the respondent in the case maintained reasonable expectation of privacy in his belongings (O'Connor V. Ortega, 1987, p 714-719).
- Does Culp have any justifiable right to privacy regarding his employer-provided jacket's pocket?
Culp does have a right to privacy. “The appropriate standard for a workplace search does not necessarily apply to a piece of closed personal luggage, a handbag, or a briefcase that happens to be within the employer's business address” (O'Connor V. Ortega, 1987, p 716). Not because the Jacket was on the premises of the college, it means it can be searched by the supervisor or any other office personnel. The jacket was his personal belonging and not the company’s. The context in which the search was carried out is not good enough. The search should have been conducted with the permission of the employee, or, if the employee is deemed unable to carry out such functions, then it should be done with the help of law enforcement officials. Culp could have said something else was missing from his jacket or that the crack/cocaine was planted in the pocket because someone wanted to frame him.
“In determining the appropriate standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy, what is a reasonable search depends on the context within which the search takes place, and requires balancing the employee's legitimate expectation of privacy against the government's need for supervision, control, and the efficient operation of the workplace”(O'Connor V. Ortega, 1987, p 714-719).
- Do the university's rights and obligations outweigh Culp's? Cite support for your opinion from this unit's articles and O'Connor v. Ortega, 480 U.S. 709 (1987).
- The University’s rights and obligations outweigh Culp’s by far, because in his case, it is only his welfare he is concerned about. The college is concerned about the welfare of its students, workers and the damage that can be done to its property. If the caretaker is intoxicated, he will not now what he is doing and can cause irreparable damage. They have to worry about productive time lost because of the employee’s inability to perform his duties and his insubordination.
- Would it matter if the supervisor found a bottle of beer in the jacket pocket instead of crack cocaine?
Whatever was found would not be admissible in a court of law, because of the 4th Amendment restraints, but even if it was a beer, it would still be construed as an alcoholic beverage and would constitute dismissal based on the contents of his Last Chance Agreement.
- Can the vice president and supervisor review information in the medical record and the personnel file, both of which are kept in the HR office, since they are the key personnel involved in the possible discipline of Culp? Explain.
The Vice President can, along with an HR personnel, as they are the ones who authorized the hire. The supervisor would only be able to do so in the presence of authorized personnel as the supervisor is also an employee.
- Will you terminate the custodian or not, based on all of your information and analysis?
It would not be a wise decision to terminate the employee since the search was unauthorized. A verbal warning that you are aware of the contents and the prior misdemeanors would also be a good idea. If the employee is made aware of this, then they would undoubtedly try to do better. The supervisor should gather the evidence and documentation before meeting with the employee and form an agenda of possible discussion topics. He should outline my concerns and make the employee aware of how it affects not only him, but other parties. She should calmly and firmly explain the issues with his performance and the consequences of his behavior. It would be wise though to let the employee be aware of the availability of the EAP. It would be wise to refer the employee to the EAP and tell him that it is in his best interest to attend. If he refuses to, then the supervisor should document any other problem that arise and take the necessary disciplinary action. Alcoholics and drug abusers will not readily admit to having a problem, so this can be a difficult situation, but with the right procedures, it can be resolved. The college may be held liable if the employee was wrongfully dismissed. “The agency "shall issue" a preliminary order reinstating the complainant with back pay”(Castagnera, 2003).
Castagnera, J. (2003). /The Rise of the Whistleblower and the Death of Privacy: Impact of and Enron. (1st ed., pp. 1-13). Labour Law Journal.
Hughes, S., Hertz, G., & White, R. (2013). Criminal Background Checks in U.S. Higher Education: A Review of Policy Developments, Process Implementations, and Postresults Evaluation Procedures. Public Personnel Management, 42(3), 421-437. doi:10.1177/0091026013495763
O'Connor v. Ortega, 480 U.S. 709 (US Supreme Court 1987).