Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘termination’

Strangers Raise Money For Walmart Worker Fired For Picking Up Cans

Sunday, November 22nd, 2015

AlanPyke_108x108When a parking lot attendant dared to recycle trash he picked up outside an upstate New York Walmart, the store fired him. Now generous strangers are trying to help cushion his sudden fall.

Thomas Smith, 52, had been earning $9 an hour at an upstate New York Walmart for less than three months when his manager terminated him over the cans. Smith was in charge of rounding up shopping carts from the lot outside the store, and started collecting trash from the lot while making his rounds. After storing up cans for a couple months, he recycled them in the store’s machines in early November. He got $5.10 for them.

Then he got fired. His manager told Smith his actions were “tantamount to theft of Walmart property,” the Albany Times Union reports, and said he would have to repay the $5.10 or lose his job. Smith, who commuted an hour by bus from Albany for the job, returned to the store two days later with the cash. But he’d already been fired.

“I didn’t know you couldn’t take empties left behind. They were garbage. I didn’t even get a chance to explain myself,” Smith told the paper. He also said his manager told him that a coworker who’d been caught stealing cash from a store register was allowed to keep her job because she repaid the theft and “because she has five kids.”

That thief was white. Smith collected trash while black.

The store manager who made the decision refused to speak with the Times-Union, and a Walmart spokesman told the paper it does not comment on personnel matters. After the story got picked up by local TV news, a company representative claimed Smith had admitted to stealing from inside the store itself. “They certainly didn’t indicate that both when I talked to them and our attorney talked to them,” Alice Green of the Center for Law and Justice said of that claim. Smith says he wrote out a statement for managers acknowledging he’d recycled the cans and no more.

Smith’s story has prompted strangers to send money through the crowdfunding site GoFundMe. So far the effort has collected more than $2,200 – an amount Smith would’ve had to work more than six weeks at full-time hours to earn.

While going viral for his sudden termination from a low-wage job has provided some short-term help, Smith will likely still have a hard time getting back on his feet. He was paroled in May after more than a dozen years in prison for armed robbery. He’d spent four months homeless after his release before finding housing through a charitable group. The Walmart job would have been one of his first, if not his very first, opportunities since his release for earning a living and achieving a degree of economic independence.

Formerly incarcerated people face immense hurdles to re-entering society and the workforce. Trust is hard to come by. Many job applications feature a check-box requiring applicants to volunteer information about their criminal history, which generally ruins their chances of even getting an interview.

The rejection naturally encourages desperate people to return to criminal activity for an income, as Glenn Martin, who now runs a non-profit that works with the formerly incarcerated and wasturned away from 50 different jobs in the month after his own release from prison, has described. Activists like Martin say efforts to reform the criminal justice and prison systems should include “ban the box” measures to restrict how hiring managers can ask about criminal histories – something President Obama recently did for federal hiring practices – and a revamp of education programs behind bars.

Since being fired, Smith has gotten plugged in with a legal aid group in Albany that is helping him recover his footing and that may eventually help him sue Walmart over his treatment. For now, though, he’s more worried about how he’s going to buy Christmas presents for his two teenage children.

This blog was originally posted on Think Progress on November 20, 2015. Reprinted with permission.

About the Author: Alan Pyke is the Deputy Economic Policy Editor for ThinkProgress.org. Before coming to ThinkProgress, he was a blogger and researcher with a focus on economic policy and political advertising at Media Matters for America, American Bridge 21st Century Foundation, and PoliticalCorrection.org. He previously worked as an organizer on various political campaigns from New Hampshire to Georgia to Missouri. His writing on music and film has appeared on TinyMixTapes, IndieWire’s Press Play, and TheGrio, among other sites.

Woman Claims She Was Fired By The Same Company Twice For Being Pregnant

Wednesday, September 9th, 2015

Bryce CovertAshley Lucas alleges she was fired not once, but twice, for being pregnant from her job with Service Boss Inc., a company that provides clients with household services such as cleaning, plumbing, and landscaping.

In a lawsuit filed last month in federal court, Lucas says she began working at the company in February 2014 but says she was fired in April, then reinstated, only to be fired again in June. She was pregnant at both times, but she says she had no work restrictions and was able to perform her job. She also says that she was a reliable employee. Given all of these factors, she believes she was fired because she was pregnant.

Lucas also describes management making derogatory comments about her pregnancy. According to her lawsuit, she was told that being pregnant made her unreliable and a liability, that she shouldn’t be working while pregnant, and that she should file for disability or welfare benefits.

Lucas’s lawsuit claims the company violated Title VII of the Civil Rights Act, which prohibits sex discrimination in employment, and the Pregnancy Discrimination Act (PDA). She’s seeking to ensure that the practice of firing pregnancy employees ends at Service Boss, as well as back pay, punitive damages, and legal fees. The company could not be immediately reached for comment.

Lucas may be somewhat unique for being fired twice for the same pregnancy, but she’s not the first employee by far to be terminated for getting pregnant. A nonprofit had to pay $75,000 for having a “no pregnancy in the workplace” policy that led to the termination of a pregnant employee. A woman says she was fired after being told to “stay home and take care of [her] pregnancy.” Another says she was fired after being told her pregnancy would make her “move too slow.” The terminations can be swift: one woman claimed she was fired two weeks after telling her employer she was pregnant, while another says it only took hours.

Employers have been warned that these actions run afoul of existing law. Last year, the Equal Employment Opportunity Commission (EEOC) updated its guidance for the first time since 1983 to remind businesses that Title VII and the PDA protect employees from being fired for being pregnant and also require them to be treated the same as any others “in their ability or inability to work” when it comes to accommodations and work adjustments so they can stay on the job. UPS also lost a high-profile case at the Supreme Court this year in a lawsuit brought by Peggy Young for failing to give her light duty during her pregnancy despite giving it to workers with disabilities or even suspended licenses.

And violating the law could come with steep financial consequences — in July, for example, AutoZone was made to pay a record-breaking $185 million in damages in a case where an employee said she was demoted and then fired for being pregnant.

Even so, pregnancy discrimination appears to be an increasing problem. Charges filed with the EEOC have increased from more than 3,900 in 1997 to more than 5,000 in 2013, and they have also outpaced the influx of women joining the labor force. The majority of charges are from women claiming they were fired for being pregnant. Meanwhile, an estimated quarter million women are denied their requests for pregnancy accommodations at work each year.

This blog originally appeared at ThinkProgress.org on September 8th, 2015. Reprinted with permission.

About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

Fired in real time: Never meet with your boss at 4 pm on Friday

Thursday, March 17th, 2011

Image: Bob Rosner

My boss, and his henchman, arrived promptly for the meeting to discuss my sales update. It was 4 pm on Friday afternoon, approximately 48 hours ago. 

I knew something was up because my boss started speaking totally in sentence fragments. “I’ve made up my mind, things aren’t working out, I need people to get along, it’s time for a new direction, you can’t be having fun.” 

 Later I remembered that many termination specialists, like George Clooney in the movie “Up in the Air,” advise bosses when they fire someone to never pull a Donald Trump and say the “F” word. So it becomes a very weird game of firing euphemisms that fall on you drop-by-drop, like a painful kind of water torture.

 I said something, I honestly can’t remember what it was. This triggered my boss’s loop to start all over again, albeit in a slightly different order.  “Things aren’t working out, I need people to get along, you can’t be having fun, it’s time for a new direction, I’ve made up my mind.”

 I don’t know if he just screwed up the speech the second time, or if the termination gurus suggest that the firing sentence nuggets be shuffled like a deck of cards before being delivered each time. 

 Either way it was totally disorienting. Because he didn’t tell me directly that I was being fired, I  had to say the word inside my own head. So what happened is that I ended up firing myself. How sadistic is that?

 I do remember my next question, I asked why I was never given a chance to change my behavior before I was fired. The reply was quick, and clearly rehearsed, “Come on Bob, we’ve got lots of documentation.”

Documentation? Did anyone think to share it with me before I was fired? After? It would be nice to be consoled that there is a filing cabinet somewhere that answers the riddle of my firing, but clearly being fired by my company is a process that makes the selection of the Pope appear totally transparent. 

 Was the relationship between me and my boss flawed? You betcha. But it could have been humane to at least have one counseling session before the execution. Heck, even a kangaroo court would at least provide the illusion of concern and participation. 

 But alas it was not in the stars for me. My trial, sentencing and execution were neatly wrapped in one ten minute meeting.

 Believe it or not, I’m a best-selling business author. And yes, this greatly increases my embarrassment of being fired, but it also puts me in an interesting place to observe the process. I’m going to try to deal with the salt-in-the-wounds quality of writing about my own firing, partially as personal therapy, but mostly to increase the rate of healing for everyone else who’ll follow in my footsteps. And more of us, than we’d all like to admit, will undoubtedly go this route at some point.

Finally, I’m not going to mention the name of my former company anywhere in this blog. Because ultimately it’s not about them. It’s about my journey to regain my sanity and gainful employment. 

My a-ha: In the absence of embezzlement or a dead body, people should always get a chance to change their behavior before being fired.
 
 
About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Turning the Other Cheek: Illegal Retaliation in the Workplace

Wednesday, October 6th, 2010

Piper HoffmanTurning the Other Cheek: Illegal Retaliation in the Workplace

If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).

It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.

In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.

In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.

In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.

So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.

The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).

The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.

In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie case and stay in court? An “adverse employment action.”

That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”

Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).

The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Take a look at their GPAs too.

This article was originally published on PiperHoffman.com

About The Author: Piper Hofman is a writer and attorney living in Brooklyn with a B.A. magna cum laude from Brown University and a J.D. cum laude from Harvard Law School.  She has professional experience with the laws related to employment, animal rights, poverty, homelessness, and women’s rights.

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