Officer Appeals His 17th Suspension

Posted on October 12, 2010 by Tom Crane

In most private sector jobs, if you were suspended 17 times by your employer, you would be out of a job.  But, Officer Lee Rakun is still appealing his latest suspension from the San Antonio Police Department.  See San Antonio Express-News story.  In fact, Officer Rakun received his first suspension within a year of starting with the police force.  The SAPD has an active union and a strong Collective Bargaining Agreement (CBA).  So, that helps explain Officer Rakun's tenacity.

The advantage of CBA's is that they typically require some form of "good cause" for termination.  An employee can only be fired for good cause.  Without a CBA, the rest of us are subject to Texas' "at will" employment.  "At will" employment means the employer can terminate anyone for any reason (other than discrimination and a few other exceptions).  The employee handbook so many of us have at our jobs say an employee will be fired for certain infractions.  But, employee handbooks are not binding and they are often violated by the employer. 

So, the next time you are fired for "excessive absences" or because after 14 years of no errors, you are accused of failing to account for one $15 expense, think about unions and Officer Rakun's appeal of his 17th suspension.  

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It is not the Employer's Fault if the Lab Makes a Mistake

Posted on September 16, 2009 by Tom Crane

Many employers require drug tests as a requirement for employment.  But, few employers conduct the test themselves.  Most employers contract out the actual drawing of the specimen and testing.  Some laboratory will perform the test.  Some employers will fire an employee for testing positive for a drug test.   What happens if the lab makes a mistake?  Well, if the lab makes a mistake, the lab makes the mistake, not the employer.  So, any legal action would lie against the lab, not the employer.  

But, under Texas contract law, an employee may not have an action against the lab either.  Since, the employee had no agreement with the lab.  Shoot, the employee would probably not even ever see the lab.  So, yes, in some situations involving a false positive, the employee is flat out of luck with no right to file suit against anyone.  Not the lab and not the employer. 

I get calls like this about once a year.  Unfortunately, false positives happen all too often.   

Same thing happens with criminal background checks.  If the "checker" falsely reports back some criminal history, the employee's action will be against the criminal background checking firm, not the employer.  The remedies (ie, what you can sue for) will be limited.  See Zepeda v. Industrial Site Services, Inc., 2008 WL 4822205 (Tex App. Corpus Christi unreported decision). 

Welcome to "at will" employment, the rule in most states.  

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An Employer can Fire an Employee for the Wrong Reason

Posted on September 10, 2009 by Tom Crane

 I used to get referrals from the San Antonio Bar Association.  These referrals included many clients who had never spoken to a lawyer anywhere.  Many of them would call complaining basically about unfair treatment.  I still get calls like that, sometimes.  They might say, "my employer fired me because they claim I did not call in, but I did call in."  I have to explain to potential clients like this that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.  I have talked about this before. 

We have what is known as "at-will" employment.  An employer can fire you for any reason (other than various types of discrimination).  Just as the employee can quit for any reason.  So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you.  I wish that was not true.  I wish our state laws were different, that they required some sort of "just cause" for termination.  But, most states do not require just cause for a termination.  Only some 10 states require a good reason for a termination.  In the rest of the states, such as Texas, an employer can fire you for the wrong reason.  

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The Best Plaintiff is the Reluctant Plaintiff

Posted on June 17, 2009 by Tom Crane

 I talked a while back about how it can be hard to find a plaintiff lawyer for employment cases.  How about those times when the plaintiff employment lawyer does not want your case?  Harold Goldner, a plaintiff employment lawyer in Pennsylvania, talks about some cases he (and I) do not want to accept.  

A young man called me one time and insisted he cussed out out his boss one time, not twice as his boss claimed.  I had to explain to him that a boss can fire you even for merely cussing him out one time.  Yes, folks, hate to break the bad news to you, but you can be fired for unfair reasons (or for reasons some people believe to be unfair).  Texas is what is known as a "at will" state.  You can be fired "at will" and you can quit "at will."  Most states are "at will."  We are no different.  Except for a few situations, discrimination, a union agreement, or a written employment agreement, among other situations, a person can be fired for any trivial reason.  There is still no substitute for hard work and making an effort to get along. 

In my experience, the best plaintiff is the reluctant plaintiff, the one who comes to see a lawyer only as a last resort.  

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