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Old 03-16-2009, 02:57 PM   #1 (permalink)
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Fired Over a Tuna Sandwich

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View: Fired Over a Tuna Sandwich, and Fighting Back
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Fired Over a Tuna Sandwich, and Fighting Back
March 16, 2009, 4:14 pm
Fired Over a Tuna Sandwich, and Fighting Back
By Jennifer 8. Lee
Angela Jimenez for The New York Times The Union Square Whole Foods Market fired Ralph Reese of Queens over a tuna fish sandwich and then called his action misconduct, which prevented him from receiving unemployment benefits.

Whole Foods fired Ralph Reese for taking a tuna fish sandwich. But was it misconduct? It is a question that matters. Anyone fired for misconduct is denied unemployment benefits.

Whole Foods argued that Mr. Reese, 57, of Queens, tried to steal a sandwich by taking it from the trash at the end of his shift as a deli clerk at the Union Square Whole Foods on Nov. 9. The company’s policy is that food cannot be taken without being paid for, though employees receive a 20 percent discount.

“I cannot comment specifically on this case, on this person, and the conditions of his employment by Whole Foods,” said Libba Letton, a spokeswoman for Whole Foods. But she did say, “Whole Foods Markets has a program that team members are encouraged to try our different products.”

She said the program helps the employees learn more about the products so they can be of more help to customers. But there is a defined procedure, she said: They must ask their supervisor, the food is logged and accounted for, and the servings are typically sample-size.

“Any variation from this procedure would be taken very seriously,” Ms. Letton said.

Initially, New York State ruled that the tuna sandwich episode was misconduct, based on Whole Foods’ statement about the trash. In New York, as in other states, employers’ unemployment insurance rates are based on the amount of the benefits their former workers collect [pdf] — giving them an incentive to limit the number of employees who receive unemployment.

Mr. Reese challenged the ruling in January. “I knew what they said was wrong,” said Mr. Reese, who earned $11.50 an hour.

His version of the story: He was throwing out 30 sandwiches at the end of the shift, and he put the tuna sandwich aside on the counter in plain view. When the supervisor confronted him about it, he said it was going to be thrown out and he was going to eat it.

The supervisor then threw the sandwich out.

Two days later, Mr. Reese was fired.

Mr. Reese had worked at Whole Foods for two years. He had transferred to the deli department from the grocery department, where his previous supervisor had allowed employees to take damaged food. “They can’t sell them,” Mr. Reese said. “They can only write them off as a loss. That is why they throw them out. That is why they don’t mind giving it to us.”

Mr. Reese said that he had never fished the sandwich out of the garbage, and that he openly admitted that he was planning to eat it. “That’s why I had to take it to court,” he said. “I couldn’t let them get away with that.”

Whole Foods did not send a representative to court.

The administrative law judge, William Badillo, ruled in February that Mr. Reese did not eat the food without paying for it and that he did not take the food out of the store. And given the fact that Mr. Reese did not have any prior record of warnings, it was seen as an “isolated instance of poor judgment which does not rise to the level of misconduct.”

Elizabeth A. Shollenberger, director of government benefits and consumer law for Queens Legal Services, said that in the last six months her office had seen an uptick of cases like Mr. Reese’s, in which unemployment claims were being challenged. It is a phenomenon happening not only in New York, but also across the country. “A lot more people are getting fired for very minor reasons,” said Ms. Shollenberger, who represented Mr. Reese.

“What we are seeing is that they are firing people for ‘misconduct’ when what they are really doing is downsizing and it’s an attempt to not pay benefits,” she said.

Last year, she said, her office was seeing three or four such cases a week. Now she estimated that they are seeing 15 to 20 cases a week, 80 percent of which she says have merit. (Nationwide, employees win in two-thirds of the cases.)

Still, some of the level of claims have been surprising to her. “I’m not going to shop at Whole Foods anymore,” she said. “Their behavior was outrageous, the way they treated this man.”

Mr. Reese, who is still unemployed, started receiving his benefits two weeks ago. “All of this,” he mused, “over something that was going in the garbage.”
Some people think that Whole Foods can do no wrong. They may have good practices and goals, but in the end there are just people that work there and those people have all the same flaws that people have.

I know that in food service this is a very important thing to not allow for food to be taken even when it is to be thrown out. It creates a loophole for people to make extra or more than necessary so that they can get food for free. From what I understand it is usually drilled into the employees as part of orientation and training that taking any food is considered theft.

The fact that they denied him his unemployment benefit is of great interest to me. I'm thinking that it isn't indicative of any other nefarious offense of Whole Foods than just keeping policy as those that violate their policies.

What do you think?
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Old 03-16-2009, 03:11 PM   #2 (permalink)
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They had a chance to get rid of him and they did. If it had indeed been a moral imperative of whole food, they would have sent a rep to the hearing......
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Old 03-16-2009, 03:39 PM   #3 (permalink)
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CD, I agree ... I think they wanted to fire the dude-non the less-and they placed the wrong "reason code" in the system. Hence automatically denying him his unemployment. Yes, they are full of shit. Yes, they do sell the best beef sirloin within a 2 mile radius, yes I will still shop there, just like I do walmart and Harris Teeter.

Off topic ... Why not allow food to be taken away? I mean if you can't sell it and don't want to give it to your employees, just donate it then. I mean, it's illegal to sell but it doesnt mean that the food is completely bad, Does it? Stupid law non the less, it's a law, but still, stupid law.
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Old 03-16-2009, 03:43 PM   #4 (permalink)
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no doubt about the food quality.....mmmmmmm
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Old 03-16-2009, 03:54 PM   #5 (permalink)
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Is this really thread-worthy? They throw out older sandwiches at the end of the day so that no one eats anything tainted. If Mr. Reese ate the sandwich and got sick, Whole Foods could be been held responsible. They're using theft as a pretense, but the man made a dumb mistake and put his employer at serious risk.
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Old 03-16-2009, 06:42 PM   #6 (permalink)
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Originally Posted by Xerxys View Post
CD, I agree ... I think they wanted to fire the dude-non the less-and they placed the wrong "reason code" in the system. Hence automatically denying him his unemployment. Yes, they are full of shit. Yes, they do sell the best beef sirloin within a 2 mile radius, yes I will still shop there, just like I do walmart and Harris Teeter.

Off topic ... Why not allow food to be taken away? I mean if you can't sell it and don't want to give it to your employees, just donate it then. I mean, it's illegal to sell but it doesnt mean that the food is completely bad, Does it? Stupid law non the less, it's a law, but still, stupid law.
Because it isn't always feasible to keep the food at the correct safety levels as it gets distributed from place to place. City Harvest is a group that I know takes a great amount of pain in collecting food, but if it isn't kept at the proper food service required temperatures it is thrown out. The only way they accept food is food that hasn't been opened and served. So even if you crack it open and take out one scoop/sandwhich, the platter is not considered for pickup.

All foods can withstand being in a refrigerated compartment as potentially hazardous foods must be kept at 41F (5C) or at or above 140F (60C). Anything above or below that can cause illness. This is a health code and food service standard.

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Is this really thread-worthy? They throw out older sandwiches at the end of the day so that no one eats anything tainted. If Mr. Reese ate the sandwich and got sick, Whole Foods could be been held responsible. They're using theft as a pretense, but the man made a dumb mistake and put his employer at serious risk.
Theft as a pretense? It's common in all food service establishments to not allow employees to take any kind of food at the end of shifts. Food is considered a raw material or ingredient. It's like taking any parts or inventory from any other company. This was flat out theft by all definitions and standards of food service companies.
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Old 03-16-2009, 08:59 PM   #7 (permalink)
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Yeah this isn't as much of a 'human rights violation' or 'Whole Foods moral stance' as some of the outcrying seems to be. I bet if you looking the hiring paperwork that he signed, there is a clear statement about the actions that he did. Now my problem is with the consistency of the actions... So, if he gets fired by the store, and supposedly there are other supervisors/employees in the store doing similar things, then they need to be treated in the same manner for consistency. You can't do to one man, what you would turn your back on for another. That's showing a managerial agenda to treat employees unequally.
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Old 03-17-2009, 05:24 AM   #8 (permalink)
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When I was in highschool I worked as a busboy at RedLobster. The food deal there for employees was that we could order anything from the menu besides the lobster for 50% off. Garlic Bread and Salad were free so all in all this was a pretty good deal and nobody abused it - there was only so much garlic bread one could eat.

At the end of the night however there was always about 20-30 leftover baked potatoes that nobody chose for sides. They were destined for the garbage yet the Managers were adamant that you couldn't have them for free, no matter how late it was.

I understand this sort of rule and why it's in place and despite the temptation, never took one. But if I did, I can't imagine I'd be fired for it.

Reprimanded sure, but I'm betting the Wholefoods Management was looking for an excuse to fire the guy or perhaps just a certain number of guys and this was convenient timing. Unless he had a documented pattern of violations and this was the final straw, I think Wholefoods has over-reacted and the manager played the douche-card.

This can't be good for employee morale.
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Old 03-17-2009, 05:44 AM   #9 (permalink)
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To me, there is a clear distinction between corporate food service and locally-owned food service. I waited tables for a couple of years in high school and the summer after my first year of college. Both were family-food type places (I wasn't old enough to serve booze), but one was corporate and one was owned by a local family. Completely different experiences--one required a dweeby uniform and adherence to a lot of rules, including no eating OR drinking anything you didn't pay for. The other was a lot more relaxed. If one of the cooks made too much food by mistake, someone would eat it. No big deal. We did pay for our meals on break, but the owners would rather feed us for free than waste food. And we got to drink all the Pepsi products we wanted--everyone just wrote their name on a to-go cup. There's a number of reasons why I prefer local restaurants to corporate chains--my experience definitely plays into it.

As for this poor bastard, I admit that Whole Foods was probably well within their rights to fire him. That isn't to say that I agree with it as a business practice or a moral issue--but that's how it goes.
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Old 03-17-2009, 05:45 AM   #10 (permalink)
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This can't be good for employee morale.
Especially when you're an employee working at minimum wage (or barely above it).

This is what happens when you work for Big Business, in the food industry. I'm sure a small scale, locally owned "mom & pop" restaurant would have no problem with an employee, and the end of the work day, eating a sandwich that was destined for the garbage.

BTW: I bet that employee theft is way higher among those working for a corporate owned restaurant, than it is among those working for a "mom & pop" restaurant, especially for employees working at minimum wage. And I bet it's mostly because corporate owned restaurants have all these petty rules that make their employees resentful and disloyal.

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Old 03-17-2009, 08:10 AM   #11 (permalink)
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I'm not sure why it's assumed he makes minimum wage. Most grocery stores attempt to pay well above minimum wage, in the hopes that they'll keep well-educated, friendly employees.

Whole Foods on the whole tries to treat their workers right.
I have many friends who have worked for them over the years. Generally positive reviews.
This guy didn't follow the rules.
Chances are he didn't understand the rules.
Oh well.

I don't think we have the whole story.
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Old 03-17-2009, 08:29 AM   #12 (permalink)
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This is ridiculous.

I've worked in the deli at a major retailer in the Pacific Northwest, and worked on the closing team for a few months. Food always gets thrown away at the end of the night (you don't really want it anyways, it's been sitting in a hot case at 140 for hours). We literally documented every burrito and pizza stick we threw away so that the company could write it off as shrink. Everyone knew the rules--eating that food was against company policy, and considered stealing. If you wanted to set it aside and pay for it, fine.

The gray area here is that the guy didn't actually get around to eating the sandwich. The manager should have clarified the policy with the employee and given him a choice--either throw the sandwich away or pay for it. It seems like there was a lack of communication and clarity, but the guy should have known the policies. It also seems like a bold thing to do when you're new in the department.

And yes, as GG said, your typical grocery store worker makes above minimum wage. At the retailer I worked at, the lowest paid position was that of courtesy clerk (box boy) and they received .50 more than minimum wage at the time in a union shop, and .65 more in a non-union shop. I made about $2 above minimum wage at the time ($8.50/hr, now it would be $10.50/hr). Some of the more senior cashiers make quite a bit more than minimum wage, actually!
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Old 03-17-2009, 09:07 AM   #13 (permalink)
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Originally Posted by Cynthetiq View Post
Theft as a pretense? It's common in all food service establishments to not allow employees to take any kind of food at the end of shifts. Food is considered a raw material or ingredient. It's like taking any parts or inventory from any other company. This was flat out theft by all definitions and standards of food service companies.
I've never worked at any professional company that had a problem with people dumpster diving for discarded inventory, trade show samples, raw materials...why, I've taken home 1000+ yards of seat belt webbing from my current job, with the full blessing of everyone from the plant manager to the purchasing supervisor.

---------- Post added at 09:07 AM ---------- Previous post was at 09:06 AM ----------

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Especially when you're an employee working at minimum wage (or barely above it).
Is there a place in the country where $11.50 qualifies as 'barely above minimum wage'?
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Old 03-17-2009, 09:21 AM   #14 (permalink)
 
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there seem to me two levels of maybe interesting stuff in this--the first has to do with the micro-level dynamics at the whole foods union square store. on that we clearly do not have the full story. on the surface of it, the situation is absurd and makes whole foods look like assholes. which in some ways, they are---but i am not sure that this is an indication of any of those ways.

the other matter is what supermarkets do with food like tuna sandwiches made that morning, and why it makes sense for them to throw that sort of thing out--and why so many supermarkets prefer to throw out food that nears expiration dates rather than do something else with it. food retailers are typically one of the largest sources of commercial waste in cities--between the food they jettison and the excess packaging they generate and the material the food is shipped in...the numbers i've seen fluctuate between 20-30 percent of the total commercial waste for cities (these numbers for the uk and canada---where this issue has come up more explicitly---i don't have time to search up information for the states, but i can't imagine the amounts of waste generated by supermarkets would change that much---but the percentage of the total commercial waste might well.)

it's a curious thing to wonder about why an outlet like whole foods would be so attentive to questions of "organic" and to a lesser extent "sustainably produced" food---even as they are among the outlets who function to drain these terms of meaning as a result of the scale of their operations--and this is a kinda complicated question to think about, but anyway---why an outlet that markets itself around categories like sustainablity and/or organic and/or natural would not pay more attention to the practices of it's individual outlets and maybe do something else with the food waste they generate.

what's implied by the article is that whole foods just throws out alot of food.
typically the argument for doing that is cost-effectiveness---it's cheaper.
but there are other alternatives: why not cycle non-expired food through food banks, or compost it?

it's a strange kind of oversight.
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Old 03-17-2009, 09:55 AM   #15 (permalink)
 
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Many years ago when I worked at burger king,
employees were definitely not allowed to take the semi-'expired',
sandwiches home, but at closing shift we would set the buckets next to the dumpster,
so the homeless people could have them. They would patiently wait a fair distance off,
then come and help themselves after we had gone back inside.

Same thing at the aldi food store.
The bakery donated the day old bread.
But this was many years ago.

Sad.
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Old 03-17-2009, 10:37 AM   #16 (permalink)
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Is there a place in the country where $11.50 qualifies as 'barely above minimum wage'?

There's minimum wage and then there's living wage, by which I mean a wage in which you can have shelter, food, and clothing. Why don't you try making it in NYC on 12 bucks an hour?
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Old 03-17-2009, 10:48 AM   #17 (permalink)
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There's minimum wage and then there's living wage, by which I mean a wage in which you can have shelter, food, and clothing. Why don't you try making it in NYC on 12 bucks an hour?
Plenty do...They just have to have multiple roommates and live outside of Manhattan.

There are lots of social programs that allow for places people can live in NYC for reasonable rents. They are very sought after for the Mitchell-Lama, rent controlled, and rent stabilized. NYCHA also provides cheap housing for those that make less than $43,000 as one person living in a unit. Family of 4 is $61,000. I know of a number of folks that live not far (2 blocks from my home) that live in these kinds of housing units. They are clean, simple, and accessible to the transit just like where I live.
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Old 03-17-2009, 11:16 AM   #18 (permalink)
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I'm not sure why it's assumed he makes minimum wage.
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Originally Posted by twistedmosaic View Post
Is there a place in the country where $11.50 qualifies as 'barely above minimum wage'?
I wasn't speaking about the person in this particular case, as I was about people in general who work at restaurants and fast food places. And, please, don't cite the wages of people who work at McDonald's in New York City or other places like that, since that is not the norm for restaurant/fast food workers.

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Plenty do...They just have to have multiple roommates
Multiple roommates. LOL. What a life! Especially for an adult over the age of 25. But such is life, when you're having to work for that kind of wages.
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Old 03-17-2009, 11:39 AM   #19 (permalink)
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I'm not sure why it's assumed he makes minimum wage. Most grocery stores attempt to pay well above minimum wage, in the hopes that they'll keep well-educated, friendly employees.
I see you're not from my area. They pay minimum wage plus 50 cents if you're lucky, and like big box electronics stores, they hire mostly high school and college kids and treat them like criminals.
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I've never worked at any professional company that had a problem with people dumpster diving for discarded inventory, trade show samples, raw materials...why, I've taken home 1000+ yards of seat belt webbing from my current job, with the full blessing of everyone from the plant manager to the purchasing supervisor.
Allowing taking of discarded inventory has several disadvantages, primarily that falsely marking something as trash is an easy way for an employee to steal something.
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