Can a software company in California insist employees limit drinking?
October 21, 2014 8:43 AM   Subscribe

Can a software company in California insist that employees participate in a system that limits drinking after hours?

My partner works for a software company that creates software that helps folks keep on the path to good living (think weight loss, help with chronic diseases, that sort of thing).

There was a crisis at work that involved the Big Boss -- one of the employees had over imbibed and was thrown in jail (as he should have). Now the Big Boss thinks that employees should work together to insure that no one has more than two drinks after work.

Ful disclosure: I want everyone to drink less. I really, really do. But this strikes me as a bad idea because
  • illegal
  • how on earth is this enforceable?
  • I don't think they have a similar drug policy (for pot or other substances)
  • would it not be better to use a carrot approach rather some narc-y stick approach (but again -- how does one reward this without blood/urine testing?
I'm not sure if it matters, but the parent company is not based in California (but in the U.S.)

What do you think? Is it really illegal?
posted by anonymous to Law & Government (13 answers total) 3 users marked this as a favorite
This story has an example of a company that fired employees for social drinking, apparently legally.
posted by three_red_balloons at 8:46 AM on October 21, 2014 [1 favorite]

What do you think?

That's irrelevant. If your partner doesn't like it, your partner can find a new job.

Is it really illegal?

California employment is "at-will". So long as your employer is not discriminating against a protected category, your employer can terminate an employee for any reason. Drinking alcohol is not a protected category. Interestingly enough, in some traditionally tobacco-growing states, smoking is protected.

If your partner was diagnosed with alcoholism (and hence, conceivably protected under the FMLA/ADA for some period of time), a termination would be questionable. However, otherwise, your partner's employer can do whatever they like.
posted by saeculorum at 8:51 AM on October 21, 2014 [2 favorites]

As you've described it, it sounds more like how employees are asked to encourage each other in a company "culture of health" that one sometimes encounters.
posted by michaelh at 8:56 AM on October 21, 2014

I am not a lawyer and this is not legal advice.

The California Labor Code section 98.6(a) indicates that there can not be discharge of or discrimination against an employee based on conduct defined in the labor code, including what is defined in section 96(k).

California Labor Code section 96(k) specifies that the Labor Commissioner will investigate demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises.

Drinking alcohol is not a protected category.

On the contrary, since California labor law appears to indicate that pursuing any legal activities outside of work during non-working hours is protected, consuming alcohol outside of work during non-working hours in accordance with all local, state and federal laws would in fact be protected.
posted by eschatfische at 9:01 AM on October 21, 2014 [14 favorites]

insist and require are two different things.
posted by 724A at 9:04 AM on October 21, 2014 [6 favorites]

employees should work together to insure that no one has more than two drinks after work

I am taking this to mean that employees drinking together should not encourage each other to get shitfaced (which is not, incidentally, a reason to be thrown in jail). I have worked in a place where they were serious about being "a drinking company with a software problem" and after-work socializing was essentially a race to the bottom. I get where they are coming from on this.

I am assuming that this does not mean I should creep around my coworker's house trying to see in the windows to tell if she is drinking, nor should I harass my coworkers about how much wine they had with their spouse over dinner.

Suggesting people be a little chill when they go out for drinks after work is not illegal. It doesn't sound like there are any performance measures or employment status tied to it. It is similar to suggesting people stop bringing in quite so many goodies for birthday celebrations.
posted by Lyn Never at 9:05 AM on October 21, 2014 [9 favorites]

I think this would be fine if it were in the name of user testing software or just a general push towards familiarity with the products and enthusiasm for what the company is about. I work in the entertainment industry, and there's a strong culture of watching the show you work on and being passionate about media (and in particular stuff in the genre/niche you tend to work with).

However, hard and fast rules for behavior outside work? Nope.
posted by Sara C. at 9:13 AM on October 21, 2014 [1 favorite]

I am not a big drinker. I once worked at one of those "small drinking companies with a software problem." The mandatory (mandatory!) 4:00 Thursday afternoon Engineering Meeting rotated among four different bars within walking distance of the office. We talked shop for 5 minutes at most, and the rest of the hour (for most of us caught the same 4:58 train home) was for socializing and drinking. It was always stated "you don't have to drink if you don't want to," but come on -- in a bar? And the rest of your colleagues are drinking? That's peer pressure. (Also: All the internal corporate servers were named after brands of whiskey. My boss (MY BOSS!) brought a flask of booze with him on that 4:58 Worcester Express train and offered it to us frequently, along with other regular Commuter Rail passengers. Is it any wonder I quit and moved to the DC area?) I can understand and sympathize with a wish to limit the drinking culture of bro-grammers in a typical software startup.

Ahem. That all said, I don't think this is legal. If the company wants to prohibit drinking IN THE OFFICE or DURING WORK HOURS, that is fine. Other than that, drinking ON ONE'S OWN TIME is a personal choice, and so long as the employee isn't coming in to work drunk, or getting arrested for DUI (or some other ILLEGAL use of alcohol), I don't see how the company can legally make this sort of restriction, whether in California or anywhere else in the US.
posted by tckma at 9:19 AM on October 21, 2014

In CA you cannot limit an employee's legal activities outside of the workplace, it doesn't matter if the parent company is in CA or not, the rule still applies to offices and employees in CA.

Now, "workplace" can get a little grey when you are going to a happy hour with your co-workers, for example any anti-harassment policies would still apply in that situation when technically most harassment is totally legal.

So if this policy is meant to only cover work sanctioned gatherings with co-workers that could be ok but it isn't clear from the policy or from your question.

If I was the HR person in this company I'd want to know what the motivation around the policy is? Are we trying to get people to not be thrown in jail? Well then make stricter rules surrounding jail time (which could be caused by any number of unsavory things much worse than drinking). Are we trying to get employees to watch out for each other and help everyone be safe? Let's word it differently then. Do we want employees to narc on each other? Well I'd quit. Do we want employees to be healthier in general? Let's talk about doing a wellness plan then.
posted by magnetsphere at 9:54 AM on October 21, 2014 [1 favorite]

Big Boss probably feels bad and responsible and would probably not like to see her/his employees thrown in jail for after-work drinking. You didn't say it, but it sounds like the after-work drinking is social with coworkers (i.e. the dude didn't go home, go out with another set of friends, get drunk, get jailed), so the boss probably feels responsible to a degree.

Also, you said "Big Boss thinks that employees should" - no, this is not illegal. It probably means "hey, being social together after work is fine, but maybe let's make sure we don't go too far?"

This is probably a 'culture' issue that he or she is trying to address, and with reason.
posted by destructive cactus at 10:13 AM on October 21, 2014 [2 favorites]

This does sound more like a suggestion than a new 2-drink maximum rule, but here's the ACLU's Legislative Briefing Kit: Lifestyle Discrimination in the Workplace page, and that probably has some helpful info.
posted by Room 641-A at 10:29 AM on October 21, 2014 [1 favorite]

My previous employer had a situation where someone ended up with a DUI after a company function, and as a result instituted a sort of "cultural remediation program" where everyone had to listen to a bunch of lectures on why drinking and driving were very bad, acknowledge that the company had a Safe Ride Home program, company events had a 2-drink rule enforced (in theory) by tickets, etc.

It seemed very much to be ass-covering to protect the company from a lawsuit, and not really any interest in what people were actually doing after work except insofar as it created legal exposure. Your situation could be similar, only being pushed more heavy-handedly.

Of course, the fact that the company does have a sort of "lifestyle modification" focus could make things different. It's hard to say without concrete details of an actual policy, though. Without some sort of written policy it seems like merely a nice suggestion.
posted by Kadin2048 at 10:42 AM on October 21, 2014 [2 favorites]

Regardless of whether it's legal or not, I'd be super uncomfortable working at a company that thinks it's ok to regulate what their employees do out of work. It speaks to a tremendous disrespect for boundaries on the part of Big Boss, and if I were your partner and doing so were an option I'd jump ship to another company and make damn sure they knew why.
posted by Itaxpica at 4:11 PM on October 21, 2014 [1 favorite]

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