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Addressing an issue of first impression in state law, the Texas Supreme Court held recently that an employer doesn’t owe a duty to an at-will employee to exercise reasonable care in conducting a mandatory drug test that leads to dismissal. On May 15, the court held in Mission Petroleum Carriers Inc. v. Solomon that a common-law duty should not be imposed on a trucking firm that used its own employees and not an independent lab to collect urine samples for drug testing because U.S. Department of Transportation (DOT) regulations adequately govern how such samples are collected and provide an employee an opportunity to challenge a false-positive test result. Among other protections for employees, the DOT regulations impose stringent rules for administering the drug tests and can levy fines for companies that don’t follow the rules, Justice Wallace Jefferson said in the court’s majority and plurality opinion. An employee also can refuse to sign the custody and control form, which must be signed before a drug test can be verified, according to the opinion. The Texas Supreme Court’s ruling reverses a 2001 decision by Beaumont’s 9th Court of Appeals, which held that Mission owed a duty to its employees with regard to the mandatory drug testing. Clifford Harrison, one of the attorneys representing Mission, says the 9th Court of Appeals’ decision, if left intact, would have eroded the Texas employment-at-will doctrine by creating a new duty for employers. “The problem with eroding the employment-at-will doctrine by creating a duty like this is it opens up any employer’s decision to terminate [an employee] to jury scrutiny. That’s not Texas law,” says Harrison, a partner in Houston’s Harrison, Bettis & Staff. A STEP BACK? Beaumont solo Doug Greer, one of the attorneys representing plaintiff Roy Solomon, says the sanctity of the DOT regulations and the employment-at-will doctrine should not trump the rights of workers. The Texas Supreme Court’s decision is “a serious step backwards for the protection of individuals,” says Greer, who served as the briefing attorney on the case. Greer, whose brother Joe, a partner in Austin’s Greer & McGill, was Solomon’s trial attorney, says the federal regulatory scheme cited by the Texas Supreme Court doesn’t provide a cause of action for an individual. He also says the DOT’s complaint process couldn’t help Solomon, whose ability to find another job in the trucking industry was damaged within six days after he took the drug test. Retired 2nd Court of Appeals Justice David Farris, sitting by assignment, said in the 9th Court’s opinion that Mission created a danger when it chose to use its employees to collect urine specimens instead of using one of the several laboratories that were available. “Having made that choice it was obligated to act so that it did not injure the employees who were compelled to submit to testing,” Farris wrote in the opinion in which he was joined by then-Chief Justice Ronald L. Walker and Justice Don Burgess. The 9th Court’s opinion said Mission randomly selected Solomon, a truck driver working out of its Beaumont terminal, for drug testing in April 1997 and used one of its own employees to collect a urine sample from Solomon. Mission fired Solomon after he tested positive for marijuana use and, with Solomon’s consent, disclosed the test results to other trucking companies, which declined to hire him, the opinion said. The DOT’s regulations require that a prospective employer review an applicant’s test results from previous employers for the two years before the date of the job application, Jefferson said in the Texas Supreme Court’s opinion. According to the state supreme court’s opinion, Solomon denied using marijuana and subsequently passed an independent laboratory’s hair-follicle test designed to detect use of the drug. However, Solomon conceded that the hair analysis, which was done 84 days after the urine test, did not confirm or refute whether he smoked marijuana around the time Mission collected his urine sample, according to the opinion. Solomon initially sued Mission for defamation but later added claims for business disparagement and negligence. Solomon argued to the 9th Court of Appeals and the Texas Supreme Court that Mission failed to follow DOT protocols — including requirements that the employee and collector must be present when the container for a urine sample is removed from a sealed kit and the use of a collection site where access is restricted. The terminal restroom, where employees were sent to collect samples, was used by all the employees and was cleaned only twice a week, the 9th Court noted in its opinion. Solomon argued to the 9th Court of Appeals and the Texas Supreme Court that the company’s failure to follow the DOT’s procedures resulted in the false positive test result in his case. Judge Milton Shuffield, of Beaumont’s 136th District Court, granted Mission’s motion for summary judgment on the defamation and disparagement claims but allowed Solomon to go to trial on his negligence claim. After finding Mission negligent and that the company acted with malice, the jury awarded Solomon more than $900,000, including $100,000 in punitive damages. Under the Texas Supreme Court’s judgment, Solomon gets nothing. However, the state supreme court justices disagreed on whether Solomon’s claim against his former employer implicates Texas’ employment-at-will doctrine. “If a duty of care were to arise every time the harm to an employee transcends the employment agreement, the employment-at-will doctrine would be undermined because an employer’s basis for termination would have to be justified by a reasonable investigation, which is contrary to the doctrine,” Jefferson wrote. But Justice Craig Enoch said in a concurring opinion, in which Chief Justice Tom Phillips and Justice Harriet O’Neill joined, that it’s unnecessary to suggest that the employment-at-will doctrine would be circumscribed by imposing a common-law liability on an employer who allegedly conveys false information that prevents its former employee from finding a job in his chosen career. “Congress has mandated drug testing, and the United States Department of Transportation has adopted regulations governing the circumstances here. Any superimposing by us of common-law liability on an employer who conducts drug testing in these circumstances would alter the delicate balance the federal government has tried to achieve,” Enoch wrote. Justice Michael Schneider said in a separate concurring opinion that Solomon’s negligence claim failed because he did not produce any causation evidence to show that any steps that Mission failed to follow in collecting the urine sample caused the positive test result for marijuana use. Another member of the Texas Supreme Court, Justice Steve Smith, concurred in the court’s judgment only but didn’t write an opinion. Houston appellate attorney David Gunn, who also represents Mission, argued to the Texas Supreme Court in January 2002 that Solomon had taken his defamation claim and called it negligence. “This is a dressed-up defamation case,” alleges Gunn, a partner in Beck, Redden & Secrest. But Greer says Solomon’s complaint was about Mission’s alleged malfeasance in administering the drug test, not the fact that the results were communicated to other potential employers. Richard Carlson, a South Texas College of Law professor who teaches employment law, says one unusual thing about Mission was that the terminated employee was able to focus on the “lingering harm” he allegedly suffered. The issue was compounded by the federal regulations that establish a system for reporting drug testing results, Carlson says. Also of interest, Carlson says, is the kind of facts that the Texas Supreme Court and 9th Court of Appeals use to “dress up” their opinions. The Texas Supreme Court’s opinion noted that, at Solomon’s request, Mission sent a second urine sample to a different laboratory for analysis and the results were the same, testing positive for marijuana use. The 9th Court of Appeals didn’t mention that fact in its opinion. “Retesting is a very important element of fairness,” Carlson says. Carlson says the 9th Court of Appeals noted in its opinion that Solomon’s immediate supervisor, who gave him the unsealed collection container, had received deferred adjudication for an unspecified offense and was subject to random drug testing by his probation officer. That fact was “a big flag” for the jury, he says.

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