Wednesday, January 27, 2010
By now you may have already read about Eric Favetta, a 31-year-old PetSmart employee, who said he was fired for "theft of services" after bringing his dog to work during an overnight shift he'd picked up as a favor to his manager. This story has had a happy ending - PetSmart offered him back his job. But sometimes, and I have witnessed this recently, an employer alleges misconduct for minor infractions under the guise of discrimination or changes the terms of employment that forces X employer to quit: in other words, the employer may believe that X employee should be terminated because of age, sexual orientation, race, religion, whatever, and that is against the law. So employer creates situations that causes X employee to be placed in a position where employee has no alternative but to quit or cause employee to be placed in a position where it is impossible for X employee to follow policy, directives, etc., and then is terminated for misconduct. Be forewarned. Discrimination is hard to prove, and in NY, there is a double benefit for the employer to engage in such conduct as a ruling of misconduct or voluntary separation without cause results in lack of unemployment benefits and, if the employer is denied benefits, that might be used as evidence for the employer in a subsequent discrimination suit or complaint, viz., there is no discrimination and either the Department of Labor and/or an Adminsistrative Law Judge and/or the Appeals Board and/or the Appellate Division, Third Department has ruled the employer quit or was engaged in misconduct.