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Is tha legal being terminated from work i f i smell alcohol in my breath?

Los Angeles, CA |

i was working for this restaurant for 14 years i never had any problems but my manger fired me because i was smelling alcohol is there any thing i can do?

Attorney Answers 3


I interpret your question as asking if your employer can fire you because your manager smelled alcohol on your breath. And yes, your employer can certainly do so. Your employer doesn't need any reason to fire you whatsoever. Employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

After such a long time as an employee, you should at least try to negotiate a return to work. Talk to your manager in private. Explain the circumstances . . . why you had alcohol on your breath. Perhaps something unusual happened that day? Or maybe you have a drinking problem, in which case it may help you to get yourself into a treatment program before you go speak to your manager. Try to persuade the manager to allow you to prove your rehabilitation and/or remorse, emphasize your good and long work history, and ask to be re-hired.

Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

I hope you can resolve your situation and wish you the best. *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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An employer can take an adverse employment action for any reason or no reason, except a prohibited reason such as discrimination based upon race, religion, gender, sexual orientation, military service, etc. or opposing illegal conduct. The perception of alcohol on your breath is not a protected activity and would likely be grounds for termination, even though none are needed.

If there are extenuating circumstances such as you were taking prescription medication or something horrific happened that caused you to drink, you should explain the situation to your employer and ask for your job back. Otherwise, you should immediately apply for unemployment benefits.

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I agree with my colleagues regarding the employer's right to terminate you at will. However, being terminated for having alcohol on your breath is likely going to be determined to be "misconduct" so you will likely not be able to get unemployment benefits as one of my colleagues has implicitly suggested.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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