Legal question (termination)

[threesheets 1692]

I have a buddy that owns a home services company here in Dallas. He has a guy that he hired five years ago to run his warehouse. Well since then, the guy has ballooned to over 450 lbs and is in terrible health. He was admitted for sepsis and a host of other things a few weeks ago. His situation was so bad that he couldn't use one of his arms or one of his legs for a time. He lives in a 2nd floor apartment and my buddy had to send his installers with a dolly to get the guy up to his apartment. He's moved him from the warehouse to an office desk because he's incapable of doing the work.

So now he's pretty much incapable of doing even simple office work, and my buddy wants to let him go. He's obviously concerned about opening himself up to a wrongful termination/discrimination suit. Couple of notes- he said the guy hits a weed pen at his desk and falls asleep constantly.

Small company with < 10 full time employees if that matters. Any info would be appreciated.

[TwiceHorn 32091]

Definitely needs to document all the things this guy does/can't do. 

There may be a disability issue and evidence of changing his desk and helping him home is evidence of an attempt to accommodate, which is always helpful. 

[Js1 87220]

[UT_OB1 2266]

How about just write him up every time he falls asleep at work?

[SimonBolivar 11066]

It sounds like nature will take care of the problem for him in a year or two. Not as much paperwork or legal liability to worry about that way.

[TwiceHorn 32091]

53 minutes ago, UT_OB1 said:

How about just write him up every time he falls asleep at work?

Yeah this with some backup photos of the vape pen and him on the nod should go a long way. 

One thing to be aware of, this will probably start as an unemployment claim. You want to have a consistent story all the way through and the same evidence. 

[threesheets 1692]

He has no issue with him filing for unemployment. Just doesn't want to get sued.

[deadshank 24654]

What’s his Surly handle?

[ztejas 44250]

1 hour ago, UT_OB1 said:

How about just write him up every time he falls asleep at work?

I mean I'm assuming he has other employees. Might not want to start handing out a draconian amount of write ups. 

[Gene Parmesan 4064]

3 minutes ago, ztejas said:

I mean I'm assuming he has other employees. Might not want to start handing out a draconian amount of write ups. 

[UT_OB1 2266]

13 minutes ago, ztejas said:

I mean I'm assuming he has other employees. Might not want to start handing out a draconian amount of write ups. 

Yeah i guess if people are openly doing drugs and sleeping at work a first written warning may come off as draconian. 

[Js1 87220]

52 minutes ago, UT_OB1 said:

Yeah i guess if people are openly doing drugs and sleeping at work a first written warning may come off as draconian. 

[Chewbacca 7830]

1 hour ago, threesheets said:

He has no issue with him filing for unemployment. Just doesn't want to get sued.

Texas is an at-will state, which means either party can terminate the relationship at any time for any reason.  He should document all the things the employee has done and tell him this is why he's being fired.  If he wants to be extra cautious, he can document it in formal reviews before firing, but a fat white man is not part of a protected class unless he's over 40 (and then he's part of one protected class).  Dude can't do his job and he knows it.

[Orale 1178]

12 hours ago, threesheets said:

He has no issue with him filing for unemployment. Just doesn't want to get sued.

Sure. Ultimately there's nothing to stop the guy from suing if he's so inclined and can find an attorney willing to take the case. Seems like it would be disposed of pretty quickly with a motion for summary judgment. 

[BottleRocket 659]

Make every day taco Tuesday.  Every Thursday is cake day.  Feed the man!  Feeeeeeeeeeeeeeeed him!

 

Seriously though.  I worked for an asshole project manager years ago that didn't like the office manager.  She had weight issues and was always talking about dieting.  Every day the PM would bring in donuts and leave them in the break room next to her office.  She would chow down on those donuts every single day.  The PM thought it was hilarious.    No surprise, he is a SVP for a major developer now.  Funny but asshole.

[ztejas 44250]

14 hours ago, UT_OB1 said:

Yeah i guess if people are openly doing drugs and sleeping at work a first written warning may come off as draconian. 

The point is he has other employees and they will take notes on how someone else is treated/terminated. 

If the sleeping and vaping was such a big deal he would have likely already been gone.

[Parliament 14600]

18 hours ago, threesheets said:

I have a buddy that owns a home services company here in Dallas. He has a guy that he hired five years ago to run his warehouse. Well since then, the guy has ballooned to over 450 lbs and is in terrible health. He was admitted for sepsis and a host of other things a few weeks ago. His situation was so bad that he couldn't use one of his arms or one of his legs for a time. He lives in a 2nd floor apartment and my buddy had to send his installers with a dolly to get the guy up to his apartment. He's moved him from the warehouse to an office desk because he's incapable of doing the work.

So now he's pretty much incapable of doing even simple office work, and my buddy wants to let him go. He's obviously concerned about opening himself up to a wrongful termination/discrimination suit. Couple of notes- he said the guy hits a weed pen at his desk and falls asleep constantly.

Small company with < 10 full time employees if that matters. Any info would be appreciated.

I presume you can fire him for using drugs at work.  

Also, because of his health problems, it seems like he could get disability.

Document everything, consult a good lawyer (ie non-Surly) and good luck!

[Orale 1178]

11 hours ago, Parliament said:

consult a good lawyer (ie non-Surly)

[Guest]

If it's Texas, there is no 'wrongful termination' case for vape boy, .  Everything you're doing is to protect against losing the unemployment hearing.  Document everything and have documented consistent expectations among rest of staff and move on it.

As noted earlier, if willing to concede the unemployment issue, there is no further liability.

[Nice Guy Eddie 13740]

i definitely would not tell the employee that his health is even remotely part of any employment decision. Either he’s doing the work or he’s not. His health should not be discussed in any meeting with him even though it’s the obvious reason. If he brings up his weight, be clear that the job performance is the only consideration. As the boss, I would refuse to say the word weight or health.

on a personal level, I would be prepared that they guy would start crying when he's fired. 

 

[Chewbacca 7830]

i definitely would not tell the employee that his health is even remotely part of any employment decision. Either he’s doing the work or he’s not. His health should not be discussed in any meeting with him even though it’s the obvious reason. If he brings up his weight, be clear that the job performance is the only consideration. As the boss, I would refuse to say the word weight or health.
on a personal level, I would be prepared that they guy would start crying when he's fired. 
 

Correct. He's being fired because he's not performing his job duties.

[TwiceHorn 32091]

It's true of course that Texas is at-will in the absence of an employment agreement. 

There's still enough risk not to be stupid about canning the guy. Your buddy would probably win any wrongful termination suit, but it might cost a tidy sum and will be a pain in the ass regardless. 

[Chicken fried bacon 46]

This is Texas.  You can just eliminate his position with the company.  Just reassign the responsibilities. 

[Incredulity 11879]

On 3/7/2024 at 6:57 AM, Parliament said:

consult a good lawyer

[troph 25238]

He needs an employment lawyer consult, but he should fall below the ADA threshold of number of employees for requiring reasonable accommodations (small business exception), and even still reasonable is a key here if he can’t do his job at all there are no reasonable accommodations. He needs confirmation that the ADA doesn’t apply. The problem with protected classes (and seeking treatment for substance abuse and health related issues) is the employer starts on defense. So at will states great, that only works until you terminate someone in a protected class. 
 

he sounds like ADA won’t apply and even if it does he can be in the clear on both drug use and health related claims but he needs proactive guidance. Pay $1500 for guidance it’s money very well spent. 
 

and expect a lawyer demand. The guy has no where to go, he will be desperate and his three sources of income (not counting the lottery) are disability, unemployment and lawsuit settlement. So expect the letter, all the more reason to pay for the guidance in advance.

Edited March 10 by troph

[Bevo 13903]

It seems risky to fire for ADA reasons. I would think job neglect, like not showing up, would be a better way to go. Your buddy will probably have to get a lawyer either way though.

[Gene Parmesan 4064]

Is obesity a disability?

[Guest]

Not a protected class, but anything can be an excuse.

Lawyer out front shoulda told ya.

[Nice Guy Eddie 13740]

Boss man should have put his foot down years ago but I guess he has some combination of liking this guy or feeling sorry for him. If the employee is smoking pot on the job, that’s not a difficult conversation to tell him to cut it out. Of course I’ve known more than one person to call a vape pen a weed pen, so maybe the boss is just incorrectly describing it. 

[troph 25238]

22 hours ago, Gene Parmesan said:

Is obesity a disability?

 

14 hours ago, slorch said:

Not a protected class, but anything can be an excuse.

Lawyer out front shoulda told ya.

ADA probably doesn’t apply based on size of business, but obesity I’m pretty sure would apply as a disability giving rise to the reasonable accommodations requirements - again if ADA applies. I don’t think it will, I think it’s like 12 or 15 employees not sure and I don’t want to look it up.