May 29, 2010 (Original publish date) • By Dennis Beaver
Last week I told you about Karen, the Bakersfield waitress who was a one-person terror squad, repeatedly yelling at customers, smashing down silverware, presenting an inflated bill and frightening elderly guests with bizarre, threatening behavior.
She was fired after yelling, “Are you giving me attitude? I don’t have to take this from you. Get out of my restaurant. Get out now!” which was documented in a letter from a longtime customer.
“She was screaming at us to ‘Get Out,’ while other customers were coming in. All of us left the restaurant. She is a detriment to your business. She is kicking good, paying customers away,” the customer wrote.
“The behavior of this waitress was clearly intentional. She damaged her employer’s reputation and hurt him financially. He could have been sued for emotional distress. This was flagrant misconduct,” I was told by hospitality management professor Martha Keller of the Culinary Institute of America, Greystone Campus, and hospitality consultant Lloyd Gordon of Chicago-based GEC Consultants.
“She deserved no unemployment benefits and would not get them in virtually all states,” they both told me.
Karen applied for unemployment benefits and, despite the customer’s letter, received them. The restaurant appealed. I represented the employer.
Easy to game the California unemployment insurance system
“California’s unemployment insurance appeals judges make it easy to game the system, rip off taxpayers and employers who pay some of the highest rates of unemployment insurance taxes in the country.”
“Your judges have a strong bias to award benefits, regardless of the facts. Applicants who would never get them in other states win the jackpot in California. These judges play a role in discouraging companies from moving to California. But the real losers are good employees who do not get a raise, or people who are not hired, because of what employers are charged,” maintains Warren Meyer, president and chief financial officer of Phoenix-based Recreation Resource Management.
Meyer’s company operates campsites in more than 175 National and State Parks in 12 states, including eight California parks. Nationally they employ more than 700 people in the summer.
“Our employees are hired on a seasonal basis, with specific beginning and ending dates of employment. If you know when your job starts and ends, there is no basis to claim unemployment benefits. In California, we lose all of these cases, but in Florida we win virtually all of them.”
“We had one employee who stole money from us and another who spent the entire winter vacationing in Mexico, told us of his plans, and still got benefits!” he said, revealing his frustration in dealing with California judges who have an agenda.
An unforgettable hearing
I had a bad feeling – a really bad feeling – from the moment we met the judge, and it only got worse. Karen filed a four-page, rambling, highly defamatory letter about the employer, which we only saw minutes before the hearing. It should have been excluded from evidence, or the case continued, as it was impossible to address the issues raised. Judge Samuel L. Farina refused, admitting it into evidence. That meant he allowed himself to be influenced by horribly false allegations my client had no way to defend against.
That was only the beginning.
Judges have great power to downplay even solid evidence, especially if they want to justify a certain outcome.
It is rarely possible for every witness to be present at a hearing, and for that reason, the Appeals Board’s own instructions state that written declarations from witnesses may be used. Such statements should be taken seriously, especially if they are consistent, and believable, regardless of when they were prepared. In most unemployment appeals cases, they are prepared for a particular hearing, well after a certain event took place.
But what did Judge Farina do with statements from people who all said this waitress was one scary gal? He wrote, “statements were presented from customers complaining about the claimant … but they were not present at the hearing, were not involved in the final incident, and the statements were prepared long after the events.” He gave them “little value.”
In granting her unemployment benefits, Farina wrote:
“The final incident [screaming “get out of my restaurant!”]does not reflect a willful, wanton disregard of the duty owed the employer, but rather was a case of poor performance or unsatisfactory conduct.”
Judge Farina is paid more than $10,000 a month. The California Unemployment Appeals Board and Judge Farina declined my written requests to explain their position.
I think the judge needs a new, more fitting, accurate name, and I will do a name change for him at no cost. In the future, let’s call him Judge Robin. Judge Robin Hood.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.