Can Serious and Willful Misconduct be expanded to include the actions of a drunk employee?  Can the theory include allowing an employee to remain at work?

That was the question posed by the recent writ denied case of Sandra Ellefson v. County of Los Angeles.

There, the employer was aware that an employee was drinking at work, and had been dealing with a drinking problem for 17 years.  Applicant had seen his drinking, and complained about abusive behavior (pinching, pushing, pulling her hair, stepping on her toes) to everyone short of Santa Clause, including her own supervisors and Drunky McDrunkerson’s supervisors too.

Things moved swiftly, as they often do in government, and four months later applicant still sat facing Mr. Al Caholic’s desk.

The employer’s witnesses, however, testified that they were only informed of the drinking problem, and not the abuse, and that their efforts were focused on getting the poor guy into treatment (FOR SEVENTEEN YEARS).

Ultimately, while walking around drinking Tequila, Sir Drinkalot tripped, fell on applicant, and caused her chair to break, which then in turn caused her to hit her face on her desk.  After resolving her case-in-chief, applicant also pursued Serious and Willful Misconduct penalties, which the workers’ compensation Judge denied.  While the defense was apparently celebrating their victory at Happy Hour, applicants’ counsel filed a petition for reconsideration.

Generally speaking, your humble blogger disfavors rulings or findings that are adverse to a defendant.  But in this case, I can’t help but side with the Workers’ Compensation Appeals Board in its finding that defendant had committed serious and willful misconduct by ignoring the repeated complaints (remember, dear readers, the County of Los Angeles had been “dealing” with Mr. McCrunk’s drinking at work for 17 years!)

There was, however, a dissent: Commissioner Moresi made the point, as was made by the WCJ, that because of the 17 years without any injury, the employer had no reason to expect any injury to other employees.  Al was just being Al, and there was no reason to connect the dots between a habitually inebriated employee and actual injury (if this bomb hasn’t exploded yet, why would it ever?)

In all fairness, this is a valid point – time had effectively proven Mr. Barfly to be relatively harmless.  But, then again, the day before Thanksgiving, each turkey is more convinced than ever that it is loved and perfectly safe, based solely on the events of the preceding 364 days.  We all know that Thanksgiving is coming sooner or later.  The past 17 years were a windfall for the employer – it had allowed a worker to remain perpetually drunk at his post and had avoided the likely consequences of his inebriation: injury to himself or others.

By the by – does no one care that the County of Los Angeles has had an employee at his post, drunk, for the last 17 years?  The opinion even notes testimony that supervisors had noted unfinished work, clear mistakes, and slurred speech.  And now the good citizens of Los Angeles County get to ask their elected officials why the penalties are being taken out of the budget instead of going to another project.

In any case – if you’re an employer, please, please, please don’t let your employees remain at work drunk.   Send them home, discipline them, fire them, get them into treatment – do whatever.  But don’t expose your employees, your customers, or even your management staff to what could easily happen when a person drinks too much.

Cheers!