Daniel Cullinane CPA

25 Plaza 5 25th fl Jersey City NJ                                          phone 732-516-1648 fax 732-516-9778

MBA Taxation

Daniel Cullinane CPA

2500 Plaza 5 25th fl  Jersey City NJ 07311                                                          phone 732-516-1648  fax 732-516-9778

                 MBA TAXATION                                                                                                         

US Olympic swimmer Ryan Lochte's alcohol fueled encoutner with Brazilian police during the Olympic games last summer provides lessons for employers. Had Lochte been a sales executive traveling in Brazil on behalf of his employer, his employer would have faced a PR disaster. Here are some strategies for minimizing the potential for alcohol related conduct.


Whatever your desired approach , whether a strict ban on alcohol consumption or a policy of moderation, one of the best ways to manage your employee conduct is to state your expectations. Make the policy specific. Are you going to ban alcohol, limit consumption to the discretion of the employees? If alcohol is permitted, is prior approval required and by whom? Will you allow alcohol consumption only at after hours events or is alcohol at company functions ok? Try to think through scenarios that could be problematic and develop enforceable policies around those scenarios. Once you establish a policy, enforce it consistently. 


A one or two drink limit can go a long way to prevent a LochteGte at your holiday party. Employees may not want to take time to attend a mandated training program. So what about recasting the typical drug and alcohol use and abuse training as a matter of professional develpment? Taking responsibility for oneself and one's  professional brand is an important part of career development. Managing alcohol intake at company functions may be one consideration in that process. Make sure your training also covers your company's policy on drugs and alcohol in the workplace, how to recognize the signs of alcoholism and drug abuse and how to access any company provided support.


Chances are, despite your best efforts, your organization will have to deal with alcohol related use and misconduct at some point. Under current, active use of illicit drugs, alcoholism is a disability covered under  ADA. Some states laws may limit an employers's ability to discipline employees whose misconduct arises from or is caused by a disability or medical condition. The ADA imposes no such limitation. As a matter of federal law, employers can discipline employees for behavior that violates established and consistently enforcd conduct standards, even when an employee indicated that alcohol was to blame. An employee who arrives at work an hour late twice per week due to late night partying should be held to account under an attendance policy, even if he or she reveals a struggle with alcohol The employer can discipline the employee for violating a workplace policy, while concurently offering to accommodate the employee's condition. One smart tool in such situations, a written last chance agreement.


Employers may find themselves torn between wanting to enforce their polices and wanting to provide a second chance to employees struggling with drug or alcohol abuse.  Looking the other way just because an employee is a high performer may lead to allegations of inconsistent discipline. Instead consider implementing a last chance agreement. This allows an employer to put  certain conditions on the continued employment for an employee who would otherwise be subject to immediate discharge for violating a policy or rule.

Essentially, the employer forgoes it s right to immediately discharge an employee for a serious policy infraction in exchange for certain promise. This can include an agreement to seek and complete a treatment program or an agreement to undergo periodic drug and alcohol tests for a certain amount of time. Carefully draft last chance agreements to ensure that the employment relationship remains  at will and that the employee understands his or her continued obligation to other wise meet all performance requirements and continue to follow all the polices of the employer. When drafted to meet the employer's obligations and the employee's rights under the ADA and any other applicable laws, such agreemtns can be an effective tool in addressing misconduct and ensuring it does not reoccur.


Thousands of employees lost exempt status on Dec 1 when the new white collar overtime rules took effect, raising the overtime threshold to $47,476. Does this mean you need  to have all these workers submit elaborate new time sheets? Some employees may perceive time sheets as a  symbol of their switch from exempt work to less prestigious nonexempt status.  The fact: Most of these newly reclassified workers will not necessarily have to submit time sheets if they do not work much overtime.  The Fair Labor Standards Act only requires that you accurately record nonexempts working  time every week. How you do it is up to you. You have two options 1) use a different time keeping method for these nonexempts. The FLSA does not dictate that you use the same time keeping method  for all nonexempt staff. So newly reclassified employees can complete weekly time sheets while everyone else punches in. 2) If nonexempts work a fixed schedule that seldom varies, you may keep a record showing the exact schedule of daily and weekly hours, and indicate that employees follow this schedule. If employees work longer or shorter you must record the number of  hours actually worked. In addition, these employees can still be paid via salary. Neither the FLSA or Department of Labor makes a difference between salary and wages. However, there are some negatives. Remember, that the burden of accurate record keeping always falls on the employer's shoulder. If you do not have an accurate record of time employees worked a court  and DOL investigators will likely take employees' word for it. You can avoid this problem by 1) having these employees sign off on their fixed schedules daily, as well as weekly 2) having there managers confirm there daily and weekly work hours , 3) regularly auditing those time sheets by querying employees and their mangers about their working time.




Copyright ©​ Daniel Cullinane CPA.

If your organization offers incentives for employees who generate new business, tale not of the lessons from the recent $185 million government fine against ba​nking giant Wells Fargo. More than 5,000 employees engaged in fraud by opening 1.5 million savings or credit card accounts without the customers' permission. All those employees were fired. The lesson for employers:

Build accountability into your bonus or incentive programs. Midlevel supervisors were not careful to monitor employees supposed productivity. Wven a cursory examination of the accounts should have revealed a problem. Think about how you might detect similar shenanigans that could corrupt your incentive program. Rewards base on building new business, for example, would benefit from safeguards that include random audits of transactions. For incentives pegged to productivity develop independent systems for making sure workers are not sacrificing quality to improve quantity. Pay attention to customer complaints that indicate inappropriate employee activity.  

​Other former Wells Fargo employees have filed a class action lawsuit against Wells Fargo, alleging that they were fired because they could not meet their account quotas. They claim those quotas were impossible to meet without resorting to cheating. Executives who benefited from the illegal activity turned a blind eye to the obvious problems 

What is the lesson on this part of the story. When more than one or two employees tel you that they cannot meet goal , listen Next step

  • Review objectives before deciding to discipline or fire under performers
  • Compare results for those who met the goals and those who did not
  • Consider conducting an anonymous survey of all employees who were required to meet the goals. Ask for input on whether the plan is realistic
  • Follow up if a significant number of employees express concerns about the goals or incentives
  • Have a system for anonymously handling ethical concerns so employees who observe others engaging in questionable behavior can safely report it