For readers who are on medication for high blood pressure – especially anyone who has ever worked in a restaurant – it might be a good idea to have extra tablets handy before reading today’s story. You might need them, and will certainly be asking these questions:

“Why are we paying unemployment insurance judges close to $10,000 a month to toss common sense out the window and give benefits to people who obviously do not deserve them? When employers and former co-workers stand up for what is legally and morally right, why does it seem so often they are facing judges on a mission to reward rotten behavior?”

Our story began in January 2009, when Karen (names have been changed) began work as a waitress at Freddie’s, a small, family-owned, restaurant, similar to an IHOP or Denny’s. Especially in these types of restaurants, servers are key employees.

“Servers do not simply take orders and bring plates to tables. They are integral to the success of that business,” observes Martha Keller, who teaches Hospitality Management at the Culinary Institute of America, Greystone campus in St. Helena.

“Research shows that if guests receive exceptional service, but the food is marginal, they will return because of the service, hoping the food gets better. However, regardless of how good the food is, if service is poor, they will not return and will tell others to stay away,” she points out.

Never justified to yell at a customer

Skokie, Ill.-based Lloyd Gordon of GEC Consultants has spent more than 40 years in the hospitality industry, and routinely testifies as an expert witness. When I asked him if it is ever permissible for a waitress to lose her temper and yell at a customer, his answer was brief:

“Never! The first time that this happened, if we kept the employee, they would be told if it ever occurred again, they would be terminated for cause. Should that take place, I would object to their request for unemployment insurance. Yelling at customers or treating them disrespectfully is the same as stealing from the employer. It should not be rewarded with unemployment insurance benefits.”

‘We look in the window to see if she is working’

Within days of starting her job at Freddie’s, Karen lost her temper and yelled at a customer. Instead of immediate termination, the owner wanted to give her another chance.

“Anyone can have a bad day,” Freddie reasoned. “Times are tough and it is always difficult to find good staff. I always feel that you need to give a person extra time to prove themselves,” he reasoned. (His kindness would prove to be the classic mistake made by so many employers.)

Things remained calm until the summer, when there were two episodes of over-the-top rudeness and downright frightening behavior.

In one situation, two elderly women, long time customers, ordered a cappuccino, “Which is always served in a tall, mug-type cup. But Karen used a regular sized coffee cup and only filled it half way, leaving out the whipped cream,” the customers stated.

“When we asked her for a correctly-filled mug with whipped cream – the way they always serve cappuccino – she rudely refused. In a very nasty and frightening tone of voice, she said that she could not fill it up, and that this is all they are allowed to give the customers.”

The women were so frightened of Karen doing something to them, that they begged the restaurant’s attorney to keep their names confidential.

Karen’s threatening behavior worsened.

Longtime customers Mario, Angela and their daughter, Sandy, came to the restaurant for lunch. After being seated, they politely asked Karen for silverware, as there was none on the table. “She returned and literally slammed silverware items down on the table. This was the beginning of an unbelievable experience,” they stated in a declaration filed in court.

Karen presented them with a bill which was excessively high. “We told her that when we deal with the blond waitress, we are charged the price which is shown on the menu. She screamed, “I am not that blond waitress!!!”

“We feel this young lady has some serious, potentially dangerous issues. After that experience, when we would go to Freddie’s, we looked through the windows to see if she was working. If so, we did not go in as we did not want another bad experience. We are concerned about our safety and do not want her to know where we live or work.”

Next week: Karen’s behavior becomes even more bizarre. Stranger yet, was how an unemployment insurance appeals judge so easily ignores the law and his own rules to reward a dangerous person.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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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.

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