Appealing getting fired from the megamart

August 28, 2009 11:29 PM

AskingForMyDad Filter: Should he seek a lawyer or are there any other options after he was fired from Buy 'n' Large?

This entire story is based on his side of events and, obviously, I have no way of determining what the company has to say. Oh, and you are not his lawyer. This post is primarily to either help stop or encourage my mother from prowling the yellow pages for attorneys.

My father worked for a large discount warehouse store I shall call Buy 'n' Large (based in Washington State) store in Texas until this week. He was called into his manager's office last week and told that he had been stealing from the company because he was refilling soda cups, either to drink while performing his job or on lunch/break, once or twice instead of buying a new one on each break. The manager told him this was theft from the company and that they knew he had been doing it for the past few months and that the company figured he had stolen approximately $40. He was placed on suspension, told to return earlier this week and was subsequently fired.

According to my dad, he would buy these cups--which are the wax-covered paper kind and not very durable, according to him--from the "food court" on his breaks. The cups supposedly (I have not personally seen one) that indicate they are eligible for free refills, and he does admit he refilled them once or twice (in a single day, not spanning days) and buy another one on his next break or lunch. His reasoning behind doing this was because the cups do say they can be refilled for free and buying one takes 10 minutes of a 15 minute break as the "food court" is usually busy.

He is of the opinion that Texas is an at-will employment state, so they are entitled to fire him for any or no reason and he would have no grounds to speak to a lawyer or simply ask a higher authority at the company to reinstate him. He claims there was no written warning and he was not spoken to about this before last week, so he did not continue violating a policy that he was told he was breaking.

I realize this is rapidly tl;dr, so I'll end by asking: Does he have any options?

posted by fireoyster to work & money (25 comments total)

Does he have a union? If yes give them a call, they can probably very easily answer his questions.
posted by whoaali at 11:44 PM on August 28

Any attorney your parents retain likely will cost a chunk of change. The question you guys ought to be asking is this: is the amount an attorney would charge less than the amount you would recoup from the business, assuming you had a claim to pursue?

If its not, I'd move on.

As to the question of whether there is a claim here I have no idea.
posted by dfriedman at 11:59 PM on August 28

If he isn't in a union, no. Sorry to be blunt.

Chances are the company is in trouble (like almost every other one right now) and wants to fire people. The cup thing is just the bullshit excuse they're using.
posted by bardic at 12:12 AM on August 29 [1 favorite]

None of us (mom, dad, me) thinks he'd get a huge payday out of suing; I think he mostly would just like his job back but, if as bardic points out, they're just looking to fire people, that's a slim hope at best.
posted by fireoyster at 12:19 AM on August 29

i'm going to go out on a limb and say since he was working in texas, he's not part of a union.
posted by nadawi at 12:37 AM on August 29 [2 favorites]

An attorney may or may not get him his job back. The money spent on said attorney would likely eat up any salary he would make for the next year.

A workplace that would fire you for such an "offense" is not one you'd want to work at anyhow. Texas *is* an at-will state, so as long as the reason isn't expressly forbidden, you can be let go.
posted by chrisfromthelc at 1:01 AM on August 29

Would it be worth it to try to contact HR higher up at the company?
posted by fireoyster at 1:23 AM on August 29

Does he have a union? If yes give them a call, they can probably very easily answer his questions.

I can answer this without even knowing anything about the OP or the father.

Oh no. He DOES NOT have a union. If he did one of two things would have happened:

1. The company would NEVER have tried some BS like this.
2. The union would have stepped in before your dad ever left company grounds.

To get back to the OP's question...

Texas IS an at-will state, but they can't slander your dad. Internal theft will not only get your ass fired, but it will keep you from other employment.

YOU, nor your dad can do anything to fix this. Your only shot is getting a lawyer. THAT will be the only thing that prevents the company to respond to potential employers with a "no...he did NOT get fired for internal theft".

I hope you fight this. If you don't the company will continue to employ this horrible method of terminating people. Whats REALLY horrible is that your dad could have been approached by a manager/HR and told "umm...we don't really need you anymore...so your fired". Thats ALL they had to get rid of him.

Instead, they freaking burned and salted so your dad has a diminished probabilty for employment.

Good luck.
posted by hal_c_on at 1:29 AM on August 29 [5 favorites]

A few observations:

1. A lawyer who pursues a lawsuit on his behalf (rather than negotiation to get his job back, which would be a dead end) would not cost anything, since she would work on a contingency.
2. An untrue accusation of theft is defamation and actionable as such.
3. An untrue accusation of theft also sounds like it might be a pretext for a real reason for letting him go: he's older (he is your dad) and makes more money than other workers (don't know if that is true). This could be age discrimination. Not saying it is - it could be. An employment/discrimination lawyer would be at least willing to talk to him about options.
posted by megatherium at 3:41 AM on August 29 [1 favorite]

Hm. I don't work there or have any internal knowledge of the company, but Cos--I mean, Buy-N-Large--has a general reputation for treating its employees very well. Maybe it's just the PR, but certainly its reputation in the Puget Sound area is that they have a strong corporate culture that is very respectful of employees, which inspires a lot of loyalty.

The CEO of Buy-N-Large-stco also has a reputation for being incredibly down to earth and accessible and gets quite a bit of press for the company's remarkably pro-employee culture.

Maybe in tough times that culture is changing. Or maybe the boss in Texas is an asshole and totally out of step with the company culture. If it's the latter, a call to the CEO--famous for answering his own phone--might be in order.
posted by Sublimity at 4:54 AM on August 29 [1 favorite]

He's right that Texas is an at-will (and quite largely non-union) state. So, "at will" means that either party (the company or the employee) can quit the other at will -- for any or no reason. The exceptions are other legally protected things, like race or gender. So, for example, the manager cannot fire you because you are black. The manager can fire you because he's in a bad mood. Likewise, the employee can quit for any reason, with no notice period.

I think there can be no harm in going to HR. I'm not sure he would be successful, though. If he does, I think a good move would be to appeal to emotion (specifically, compassion, empathy, or pity). The HR representative is a human being, who must represent the company but is not an unfeeling automaton. Generally, people hate to give harsh news, hate to say no, and like to feel magnanimous. He could try to use this to his advantage. I think this would work best with this type of formula:

1. I am truly sorry.


2. I made a mistake. I did not know that this was considered theft. I understand that not knowing does not excuse my actions.


3. I would like my job back. I depend on this job for my financial security.


4. I would like to pay back the $40 [I don't think they'd take the $40; offer is to show good faith].


5. Is there anything I can do to convince you to keep me as an employee?

#2 is the tricky part. He needs to find his employee handbook. Usually, these are given to employees on/before their first day, and they sign a paper that says they've read and understood the rules in the handbook. It might outline fire-able offences, and might even cover this exact situation or related issues such as consuming food/drink while working. If it does, I think it would be smart to adjust #2 to acknowledge that it is covered in the handbook, but he forgot the rule -- thus blunting their objection before they get to state it.

So, yeah, that would be hard on anyone's pride, but it might work. The manager probably will feel angry or usurped, and will work hard to prove that his decision to fire was the right one. So, the goal really is to get the job back temporarily. Upon return to his job, he should toe the line of every rule, so that if he's fired again it is for something like "manager's discretion" instead of "theft," so that he can collect unemployment claims (right now he's probably not eligible). Also, upon returning to work, he can immediately start looking for a transfer to another store or a job with a different company, while drawing pay.
posted by Houstonian at 5:02 AM on August 29

Not an expert, but it sounds like he was fired over something trivial (rather than laid off) in order to keep the company's unemployment insurance premiums down. If someone could show that Tossco was doing this on a consistent basis....
posted by miyabo at 5:25 AM on August 29

It is my understanding from law school in a different state that courts NEVER award specific performance in employment cases. That is, they never order a company to give the job back, for a variety of reasons on which I am happy to expound if you are interested.

The primary problem I have is that because he was fired for misconduct, that is a black mark on his resume when applying for new jobs and he may not be eligible for Unemployment. The company may be doing this on purpose, specifically realizing that the misconduct charge will be financially preferable for them because of unemployment taxes and considerations. However, being fired for theft may have a long-term effect for your father's ability to obtain future jobs.

That in mind, I would consult an attorney, but I would not find one by looking through the yellow pages. I would start with Martindale, doing a search for Labor and Employment attorneys in your area. Martindale rates attorneys, and usually gives directions to the firm's website. Between these resources, you can get somewhat an idea of the particular lawyer's area of expertise. These resources are just as free as the Yellow Pages, with much, much, much more information. So, if your mother is going to prowl anywhere, it should be there.

Again, the lawsuit will not result in your father getting his job back. What he MIGHT get are some compensation in the form of lost wages and a "jerk" tax on the employer, along with an agreement from the employer to rescind the misconduct charge and make only certain agreed-upon statements if future employers call for a reference. This will aid in neutralizing some of the perceived bad-effects of being fired under a misconduct charge.

The flip side of course is the expense, although in my experience (which includes mediation and ADR for employment cases, although it is not my specialty and I do not handle the "front end" legal arguments) many employment and labor attorneys work on contingent fees. Therefore, you may be able to get a consultation to determine whether there is any case worth pursuing. In addition, it will take a long time and be a big PITA, so your father needs to think carefully about that.
posted by bunnycup at 7:39 AM on August 29 [3 favorites]

PS, I would request mods to make this question anonymous, particularly now that answers up-thread have neutralized your wise intention of keeping the name of the company out of it.
posted by bunnycup at 7:40 AM on August 29

I'll second miyabo's opinion, actually; that was one of the first things that crossed my mind: that they came up with a "for cause" reason for termination so that they would not have to pay for your father's unemployment insurance. Which makes them particularly soulless. Sadly, having read Nickel and Dimed, I'm not too surprised.
posted by WCityMike at 7:43 AM on August 29

I'd also entirely disagree with Houstonian's commentary. I think the likelihood of there somehow being a difference between H.R. and boss sufficient enough to get his job back to be low, and point #2 would pretty much, as far as I know, severely damage any potential for a litigation-based repair to the situation.
posted by WCityMike at 7:46 AM on August 29

When it all comes down to it, HR represents the company, not the employees, so I doubt they will be of any help. Also, I wouldn't contact them and admit that he did anything wrong before talking to a lawyer.
It does sound like they did this just to keep him from getting unemployment, which is really cruel.
I would also say that finding a lawyer who will work on contingency is a good idea. If they're low-income, he might be able to get a free/reduced-cost consult, and sometimes there are referral services that offer reduced-cost consults to anyone that goes through the referral service, regardless of income. It would be worth checking out these types of community resources. But I would not expect him to get his job back. My goal would be to get the company to rescind the misconduct accusation/violation so that it's less difficult to get another job and so that he can collect unemployment.
posted by ishotjr at 8:53 AM on August 29

Also, that is the most ridiculous reason to fire someone. $40 my ass, soda syrup and carbonated water costs companies next to nothing and they mark it up more than probably any other product they sell.
posted by ishotjr at 9:00 AM on August 29

Advise you take a trip to the store and look at the refill cups yourself, and find out if he paid with cash or with a credit/debit card (if the latter, verification of his per-day cup purchases should be possible.) Having this information may put you in a better position to fight back, or may reveal that your father is not admitting his own culpability (or, admittedly, neither.)
posted by davejay at 10:07 AM on August 29

Lately, I've been more and more reluctant to chime in on any legal questions on MeFi but, sometimes, particularly when "law school educated" folks start spreading inaccurate information, I just have to speak up. Courts have and will order employers to reinstate a wrongly terminated employee. Often such a result ends with the employer and employee then deciding that re-employment is a bad idea and the company pays the employee to not come back to work. The "specific performance" rule applies to contracts (i.e., a court wouldn't force Madonna to specifically perform her end of a contract b'c the likelihood is that her performance would be (intentionally or not) sub-par and the other party would feel slighted, again, resulting in more litigation).

OP, in this situation, the best I would be able to do for a client in a similar situation would be to:

1) threaten a law suit claiming age discrimination;
2) threaten a law suit for defamation;
3) act as your dad's advocate with Unemployment to prove to Unemployment that Buy'n'Large's reasons were false, that your dad wasn't given any notice of the issue or an opportunity to reform, and that he should be granted Unemployment compensation (I agree with the posts upthread that theorize that Buy'n'Large did this to avoid paying Unemployment Insurance); and
4) remind Buy'n'Large that the only 'reference' they may make to your dad's employment is to verify the dates of his employment and his title while there.

Good luck with this and good luck to your father in finding a new employment situation.
posted by LOLAttorney2009 at 1:09 PM on August 29 [1 favorite]

Thanks for all of the advice; I knew the hivemind would come through. :)

I'm going to print all this out and have him and my mother read it, if only to show him that there's a strong likelihood he didn't screw up (he's rather upset about getting canned) and that at least talking to a lawyer or the UI board would be a good idea. I also have the hunch that he was fired in this manner to prevent him from claiming UI, but I'm biased. :) davejay, getting a cup is a good idea. I plan on having a friend who's never visited him at work (I have) go in and buy one just to make sure.
posted by fireoyster at 1:16 PM on August 29

I was thinking about this, and something stuck with me: they claim he's stolen $40 worth of stuff, and that they've known he does this for some time. If that's true, why wasn't he confronted about it sooner? It makes me wonder if there's a law or a company HR guideline about the dollar value of stolen goods, where exceeding $40 either makes it more serious in the eyes of the law or makes it a firing offense instead of a warning.

Flipside: what if he was warned, and he's just not 'fessing up, to avoid taking responsibility for his own actions? Again, it's something to think about, not something that automatically says one or the other is true.
posted by davejay at 2:09 PM on August 29

[few comments removed - knock that off please, thanks.]
posted by jessamyn at 5:04 PM on August 29

It's possible he was warned and didn't tell us about it, but I asked that exact question ("There was no warning before now?" "No," was the reply.") and I'm hoping he isn't lying to me. In Texas, the limit for going from a Class C misdemeanor (ticket) to a B, at least for theft and so far as I know, is $50. The amount he supposedly "stole" is less than $40, so it could be an internal cut-off.

Oh, and tristeza, I'm trying to not directly name the store here, lest it show up in Google searches, but there's a post 9-11 down from the top that has some clues, as well "hints" as my original question. Your support is still appreciated. :)
posted by fireoyster at 10:35 PM on August 29

By way of follow-up:

My dad took Sublimity's suggestion and called the CEO's office. It turns out he doesn't answer his phone, but his assistant was ready to listen. Unfortunately, the call was for naught. The response was that, if the determination had been made in concert with Loss Prevention (which, apparently, it was), that it would not be overridden. Oh well, but at least now he knows, and it would have been amazing if that call had worked, wouldn't it?

He has applied for unemployment and we'll see what happens from that. Thanks for all the advice. I marked Sublimity's answer as best because that's the route he chose to go after I told him what everyone here had written.
posted by fireoyster at 8:18 PM on September 28