Elizabeth Has a great deal of experience in representing claimants seeking to obtain or retain benefits. Because of state laws governing unemployment hearings, clients never pay a fee unless they succeed. If you are facing an unemployment hearing, having an attorney improves your chances of succeeding.
In these bad economic times, employers sometimes fire their employees for the tiniest misbehavior, or even for no misbehavior at all. Elizabeth succeeded in winning benefits for a man who was fired because he asked whether he could eat a sandwich that his employer was throwing away. Read this excerpt from The New York Time’s March 2009 story:
Whole Foods fired Ralph Reese for taking a tuna fish sandwich. But was it misconduct? It is a question that matters. Anyone fired for misconduct is denied unemployment benefits.
Whole Foods argued that Mr. Reese, 57, of Queens, tried to steal a sandwich by taking it from the trash at the end of his shift as a deli clerk at the Union Square Whole Foods on Nov. 9. The company’s policy is that food cannot be taken without being paid for, though employees receive a 20 percent discount.
“I cannot comment specifically on this case, on this person, and the conditions of his employment by Whole Foods,” said Libba Letton, a spokeswoman for Whole Foods. But she did say, “Whole Foods Markets has a program that team members are encouraged to try our different products.”
She said the program helps the employees learn more about the products so they can be of more help to customers. But there is a defined procedure, she said: They must ask their supervisor, the food is logged and accounted for, and the servings are typically sample-size.
“Any variation from this procedure would be taken very seriously,” Ms. Letton said.
Initially, New York State ruled that the tuna sandwich episode was misconduct, based on Whole Foods’ statement about the trash. In New York, as in other states, employers’ unemployment insurance rates are based on the amount of the benefits their former workers collect [pdf] — giving them an incentive to limit the number of employees who receive unemployment.
Mr. Reese challenged the ruling in January. “I knew what they said was wrong,” said Mr. Reese, who earned $11.50 an hour.
His version of the story: He was throwing out 30 sandwiches at the end of the shift, and he put the tuna sandwich aside on the counter in plain view. When the supervisor confronted him about it, he said it was going to be thrown out and he was going to eat it.
The supervisor then threw the sandwich out.
Two days later, Mr. Reese was fired.
Mr. Reese had worked at Whole Foods for two years. He had transferred to the deli department from the grocery department, where his previous supervisor had allowed employees to take damaged food. “They can’t sell them,” Mr. Reese said. “They can only write them off as a loss. That is why they throw them out. That is why they don’t mind giving it to us.”
Mr. Reese said that he had never fished the sandwich out of the garbage, and that he openly admitted that he was planning to eat it. “That’s why I had to take it to court,” he said. “I couldn’t let them get away with that.”
Whole Foods did not send a representative to court.
The administrative law judge, William Badillo, ruled in February that Mr. Reese did not eat the food without paying for it and that he did not take the food out of the store. And given the fact that Mr. Reese did not have any prior record of warnings, it was seen as an “isolated instance of poor judgment which does not rise to the level of misconduct.”
Elizabeth A. Shollenberger, director of government benefits and consumer law for Queens Legal Services, said that in the last six months her office had seen an uptick of cases like Mr. Reese’s, in which unemployment claims were being challenged. It is a phenomenon happening not only in New York, but also across the country. “A lot more people are getting fired for very minor reasons,” said Ms. Shollenberger, who represented Mr. Reese.
“What we are seeing is that they are firing people for ‘misconduct’ when what they are really doing is downsizing and it’s an attempt to not pay benefits,” she said.
Last year, she said, her office was seeing three or four such cases a week. Now she estimated that they are seeing 15 to 20 cases a week, 80 percent of which she says have merit. (Nationwide, employees win in two-thirds of the cases.)
Still, some of the level of claims have been surprising to her. “I’m not going to shop at Whole Foods anymore,” she said. “Their behavior was outrageous, the way they treated this man.”
Mr. Reese, who is still unemployed, started receiving his benefits two weeks ago. “All of this,” he mused, “over something that was going in the garbage.”