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 say I did not call in, but I did call in sick.” I have to explain to such potential clients that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.

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.

Clients and potential clients often ask me at some point what is the value of his/her case? What little they know of its value is colored by the ubiquitous Personal Injury lawyer ads. Or, sometimes, their knowledge is influenced by what some brother-in-law knows, or thinks he knows. So, some clients, a small percentage, expect wealth and riches.

Employment cases are not car wreck cases. The employment discrimination statutes provide for specific types of damages. Title VII and the Texas law equivalent, Texas Commission on Human Rights Act, provide for lost pay and benefits, compensatory damages, punitive damages and costs of prosecuting the lawsuit which includes attorney’s fees. There is nothing more. There is not, for example, such a thing as an award for the value of the home you lost or the divorce the job loss caused. Those sorts of losses do help show emotional suffering. But, no, there will be no dollar for dollar award regarding a lost home. I wish there were. The judge cannot award anything not allowed by statute.

Lost pay and benefits include more than may meet the eye. It includes lost pay of course. It includes all lost benefits. So, save that COBRA letter that records the dollar amount paid by the employer for your medical insurance. You need a record of what the employer paid for your insurance, not for what you paid.

Lost benefits include retirement benefits. Terminations involve different calculations than failure to promote. Lost promotions or raises can affect how much a 401K would grow. Some workers can “guesstimate” how much their retirement would have grown if they had received a particular step increase. If the client cannot make an estimate, then an economist may be necessary.

Lost bonuses count. Of course, the employer will claim bonuses are never guaranteed. They may even point to policies which provide bonuses are never certain and depend on financial success each fiscal year. But, if the actual practice suggests that bonuses are likely and that failure to pay a bonus may have been motivated by discriminatory animus, then there will be a fact issue regarding bonuses. If there is a factual issue, then the issue should be be decided by a judge or jury.

Arriving at an amount for compensatory damages is complicated. Compensatory damages describes damages intended to compensate a person for emotional suffering. There is no simple way to measure emotional suffering. The actual amount to be awarded is up to a jury. Most juries do not award anything for emotional suffering.

Punitive damages are even more rare than emotional suffering type damages.

Of course, all these amounts are subject to caps. Title VII and the the TCHR Act are capped at various levels based on number of employees. The highest cap is $300,000. So, even the largest employer in the country will never see a larger award than $300,000 in compensatory damages.

Once in a blue moon, we might see a jury award a million dollars for compensatory damages. But, that amount will be reduced by a judge to the appropriate cap level.

But, no matter how small, surely it is better that an errant employer pay something for violating the law and causing so much harm.

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here.  Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen – but not the Confederate fallen. They were removed from the list a few years ago.

There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

1. How old are you? Be very careful about asking this question. There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked of Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial transgression, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

Awhile back, I watched another episode of Undercover Boss.  As they often do, the boss revealed himself at the end of the show, handed out thousands to deserving employees who are struggling, promoted one or two who clearly deserved it, hugged his workers and explained why his company was good and pledged himself to make it better.

I hear everyday about employers who do not treat workers with respect. I hear about employers who implement company policies with untrained, uninspired managers. Recently, I attended a legal training at which the well-versed Mike Maslanka spoke.  Mike represents employers and has done so for 30 years.  He reads much about teamwork, leadership and managing for success. I always enjoy listening to Mike.  He talked about how as lawyers, we need to be reminded of our values from time-to-time. If we did so, we could work together better and our country would be a better place.

The military is far from perfect. But, speakers like Maslanka always remind me how lucky I was to serve in the Army. The Army, like all the services, requires periodic training. When I was first commissioned as a lieutenant, I attended the Infantry Officers Basic Course at Ft. Benning, Georgia. We learned the Army values, duty, loyalty, selfless service, and more. We then practiced them and debated them in a class known as “Leadership.” In Leadership class, our instructor let us know our opinion had value. He listened to every opinion, no matter how ignorant. We learned a value not stated, that every person’s opinion had value.

A few years later, I was back at Ft. Benning for the Infantry Officers Advance Course.  As captains, all of us now had substantial experience with troops. All of us had now experienced the ups and downs of trying to lead disparate groups of men and women in missions they may not respect. How motivated is any soldier to stay until midnight getting ready for a 0530 inspection the next day? So, as captains, we spent a lot of time practicing counseling. We would role play soldiers in trouble and how to help them through major crises. We role played how to deal with selfish commanders and obstinate NCO’s. A few years later as a Major, I attended the more intellectual course, Command and General Staff Officer’s Course. I shook hands again with Army values, learned about Army history, and how to work as part of a staff.

At each step of our career, we are, in effect re-trained, re-armed and re-fueled for the wider Army world.  The system is not perfect, but it does produce “workers” who share expectations and who willingly surrender their individuality for a larger purpose.

One Undercover Boss tonight was from Rally Checkers. At the end of the show, he re-pledged himself to teach his workers his company values. Company values lead to greater retention, less re-training, better cooperation between workers and quicker turn-around time for the basic burger.

One thing I learned in the Army, when a leader compromises on one policy or one value, that inevitably leads to compromise on others. I told my son the other day that we tell the truth on the small things because that is practice for telling the truth on the big things. Soldiers and workers see it when we compromise once or twice. They remember.

When I first got to Iraq, we were replacing a unit that was seriously dysfunctional. The member of that unit violated some very basic principles of leadership and teamwork. We had to spend ten days with them, learning their jobs before they rotated back home. We got to know them too well.

One basic rule in the Army is that a leader never eats before his soldiers do. The leader eats last. In the Army, when you are in the field, food choices are limited. There is no McDonald’s on the corner. Food takes on added importance. The commander eats the same meals his soldiers eat. The President might get two scoops of ice cream. But, leaders do not eat what his soldiers cannot eat. The leader does as his soldiers do.  In that unit we replaced in Iraq, I am sure the commander ate whenever and whatever he pleased. Do not be the leader who eats before his people do. Do not be the leader who revels in the perks. The employees see that. They remember.

There are several things an employer can ask in an interview. Let’s discuss a few.

1. How old are you? This is not a good question to ask. There are very few jobs in which age is a legitimate requirement for the job. Inevitably, this question will suggest age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the U.S. Army.

2. Are you married? If you ask this only of female applicants, then this question could cause problems. Why would this question be helpful? Unless this is a ruse to discovery whether a female applicant might quit when she wants to have a baby. Its best to just not go there….

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have disabilities? Do not ask this specific question. But, an employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire deaprtment make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5.  Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

The health of workers will affect the amount an employer must pay for health insurance. The more ill a workforce is, the more the employer (and the employees) must pay for insurance premiums. That cost saving could lead to employers hiring only healthy workers. Or, it could cause employers to ask employees to take routine medical exams. One such employer, Honeywell, has indeed started asking employees to take medical exams. What happens if an employee refuses? That is the subject of a lawsuit filed by the Equal Employment Opportunity Commission. The U.S. District Court has ruled that Honeywell can keep requiring those tests. 

Honeywell’s tests include blood pressure, cholesterol, and glucose and indications regarding whether the employee has been smoking. The EEOC filed this lawsuit in Minneapolis last month. Employees who refuses to take the tests could be fined up to $4,000 in surcharges and additional health care premiums. Honeywell says it wants to protect those employees who maintain a healthy lifestyle. The employer says the healthier employees should not subsidize the less healthy lifestyles of other workers. See CBS News report. And, of course, Honeywell appreciates, I am sure, that lower costs affect its bottom line. 

The EEOC filed suit based on the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. It seems to me the EEOC should also have included the Age Discrimination in Employment Act. I would expect many of those downtrodden, unhealthy workers are over the age of 50. 

A quick look at the lawsuit on Pacer shows that this ruling concerned a temporary restraining order. So, this issue is far from decided. 

You have to love free enterprise. Only a true entrepreneur would come with a system of turning legal advice into a drive through window. Avvo, the legal referral website, now offers 15 minutes of legal advice for a mere $39. The service applies to a variety of areas of law: immigration, criminal, divorce, family, employment, landlord-tenenat, real estate and small business. Avvo seems to have selected every area a consumer might need. I have to say, after 15 minutes, I am still waiting to hear the essentials of an employment case. The service is available in 15 states, including Texas. See ABA Bar Journal report.

I am sure 15 minutes would work for some occasions, but if someone really has a case, 15 minutes is the beginning of the discussion, not the end. Maybe, we should just set up shop with a drive-in window and offer a free apple pie with that order….

We went into the Iraq War on the cheap. We entered that war with the smallest number of troops possible. So, that lead to the US relying on private security firms for a number of missions. One such mission was providing security for the diplomats. Four Blackwater security personnel were found guilty last week after they killed 17 Iraqi civilians. One was found guilty of murder. The others were found guilty of manslaughter. See CBS news report. The guards opened fire on a crowded Baghdad street intersection after they claim to have heard shots fired. 

I was not impressed with Blackwater when I was in Iraq. They moved into our building on FOB Speicher. Ignoring the appropriate chain-of-command, they began to erect exterior stairs without first seeking permission from any authority. They were forced to stop work on the stairs mid-way through the project. Later, when someone from my staff section was checking something on the roof, they found that Blackwater had tapped into our internet feed – again without seeking permission or consent. 

Even for uniformed soldiers, with good training ad supervision, it is hard to never shoot an unarmed civilian in that sort of war. Young soldiers, or unclear situations can lead to accidents. For mercenaries, the challenge is much different. 

Service in a war zone is not too different than a trip to Las Vegas. It is tempting to slip into the "what happens in Vegas stays in Vegas" syndrome. Not only are you far from home, but you feel a lot of power when you hold that .50 caliber machine gun in your hands. The mercenary soldiers feel the same things, apparently, and feel little of the discipline required of uniformed soldiers. We can contract out guns and vehicles. But, contracting out good order and discipline is much more difficult. 

You served in Iraq twice. Both times, you served in a combat role kicking in doors. You lost a few members of your Army family, but you accepted that. It is part of the deal you made with Uncle Sam. You were commissioned through ROTC at one of the Ivy league schools. You get out of the Army when your time expires and feel like you have earned a rest. After several months of looking for work, you get a job at a national bank on the East Coast.  Everything seems perfect. The civilian boss loves your work. Your co-workers appreciate having that Ivy league finance degree. You get two raises in the first six months. 

Then, the day after Veteran’s Day, one of your former soldiers commits suicide. That brings back a flood of memories. You were his platoon leader. You spent almost 3 years taking care of this kid and keeping him straight. You knew his very young wife. You start having those bad dreams again. Its hard to sleep. 

Your boss stops you in the hallway and asks if everything is ok. She has noticed you do not speak at meetings. You were late with that report. You tell her about that kid, who shot himself. She says "this is not the Army. Take a day off." Then, she walks away.  

Your sleeplessness worsens. At work, others are noticing your red eyes and nodding off at meetings. You take a day off. You get some work done at home. The boss fusses at you for taking a day off when your report was not turned in yet.  

Weeks pass. The boss says accusingly that your speech is slurred and your eyes are drooping. The boss walks away, looking at you like you are a child molester. 

Walking down the hallway, you find your desk. A minute later, Human Resources calls you in for a meeting. The boss is there. The HR person and the boss ask if you are using drugs. "No," you look incredulous. They have no idea that in the Army, you were tested for drug use every other year. You think how ironic, they could probably not pass a drug test every other year for eight years.  

The boss and HR representative accuse you, the former Ranger captain of PTSD. "No-o-o," you stammer out.  You think back to all those times you encouraged other soldiers to see a counselor about possible PTSD. You recall asking the kid if he had seen a counselor – just a couple of years year before he committed suicide. "No," you say, "I do not have PTSD." But, you add, "i have been seeing a psychiatrist for Depression. The medication causes some drowsiness." You tell them you will talk to your psychiatrist about adjusting the dosage.  

They press you to go take a drug test, now. The clinic will be open for another hour, they insist. They ask if you want to talk to the EAP counselor, Employee Assistance Program. You recall the orientation explaining that EAP will assist employees with drug alcohol problems. You know that the EAP program is a good way to end a promising career. 

A more senior HR person comes in. She rattles off some statistics about all the employees who were helped by the EAP program. You continue to deny any drug use or alcohol abuse. The senior HR rep again asks about PTSD.  

You break down and weep. The questions stop. They look at you like a monkey in a zoo. The senior HR tells you that you have 24 hours to contact EAP. You are suspended for one week with pay. They send you home.  

You cannot imagine going back there after your boss saw you crying. A co-worker saw you leaving the room and you could see him questioning.  

The junior HR rep calls you the next day at home. He asks if you contacted EAP, yet. You tell him no.  You explain again you have a psychiatrist. Why do you need a counselor? He says you are fired for not contacting EAP within 24 hours and for refusing a drug test. You never refused any drug test. You think back to those days in Baghdad when you were never sure who and where the enemy was. You think things have not changed so much.