Exxon case shows smart hiring is vital

June 26, 1994|By San Antonio Express-News

SAN ANTONIO -- A jury's verdict that could force Exxon Corp. to pay up to $15 billion in damages emphasizes what every employer should know: You can be held liable for the conduct of an employee who abuses alcohol on the job.

Earlier this month, a jury in Alaska found Exxon culpable for allowing Capt. Joseph Hazelwood, who had a history of alcohol abuse, to command the supertanker Exxon Valdez.

The jury also found that Mr. Hazelwood was negligent and reckless: He drank heavily the day before the tanker ran aground, causing the worst oil spill in U.S. history.

"I'm not going to say that the Exxon case is that earth-shaking," said Ben Foster, a partner with Foster, Heller & Kilgore in San Antonio. "The facts of the case itself were not necessarily extraordinary, but because of the parties involved, it made employers and employees think."

Mike Fox, a partner with Haynes & Boone, agreed that the Exxon decision illustrates the position in which employers are finding themselves.

Until about 20 years ago, employers easily could hire someone and say, "Let's try him out, and if it doesn't work out, we'll let him go," Mr. Fox said. Not any longer.

Discrimination suits have caused employers to be cautious, and that means finding the ideal employee is even more important.

But during an interview, an employer cannot ask a prospective employee how much she or he drinks, nor can an employer

discriminate against a recovered alcoholic.

Such a legal climate has put increasing pressure on company personnel offices, making sophisticated human-resources people a must for companies that don't want to get sued, said Bob Bettac, a labor-law expert at Akin, Gump, Strauss, Hauer & Feld.

"There is some degree of risk whenever an employer hires an individual or allows that individual to keep his or her job when the employer knows -- or has reason to know -- that the employee may be impaired by drugs or alcohol," Mr. Bettac said.

Employers must watch for untreated substance abuse. Pre- employment reference checks can provide some clues. For example, checks of driver's licenses or legal records can reveal driving-while-intoxicated convictions.

Drug-testing of applicants or incumbent employees is another way to avoid potential liability, said Peggy Walker, a senior vice-president for NationsBank.

Employee-assistance programs can help ensure that substance-abuse problems of people on the payroll don't persist, Ms. Walker said.

Confidential telephone lines can make it possible for employees to report potential problems, she said.

"If you're monitoring your work environment, and you discover that a problem exists, you're not singling anyone out," Ms.

Walker said.

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