In addition to being a wholesale purveyor of fresh meats, fish, fowl and agricultural products to the regional restaurants and institutional kitchens, Acme operated an on-site food manufacturing plant that produced a branded line of high-quality desserts, entrees, soups, sauces and other haute cuisine delicacies. In the name of better brand recognition, Acme opened a retail store in a separate building to sell prepackaged, fresh heat-and-eat meal kits to discerning gourmets. Some walked in, but most phoned ahead during the day to custom order any combination of items from Acme’s product line for pickup on the way home in the evening.
Everything sold in the retail outlet was prepared by a dedicated backroom crew, which included two professional chefs and a kitchen staff, all under the supervision of Dick Chenarey, Acme’s retail manager. The bill of fare in Acme’s store was equivalent to the menu found at any upscale restaurant, but at reasonable prices.
Production scheduling was the problem. It was difficult to predict what the walk-in customers would purchase. Dick expected his kitchen staff to produce and have on hand at all times a certain minimum number of each item or meal kit. Dick considered it bad form if a customer couldn’t buy what they desired or had to wait while the backroom staff scrambled to fill an order.
Janice LaRomana, the public face of Acme’s retail division, was the intermediary between the customers in the store’s public area and the staff in the backroom. Janice was very much attuned to Dick’s operating vision. The local economy was depressed and she believed that loyal customers continued to buy Acme’s retail products only because of the convenience and time-saving value proposition the store offered. Dick openly acknowledged that Janice was effective in customer relations. Ever polite and courteous, she bent over backward to make the experience of buying Acme products as pleasant as possible.
The backroom staff, on the other hand, routinely and freely used an abundance of profanity among themselves during the shift, not all of it in English. It was an element of the backroom kitchen culture that never harmed their effectiveness. But, paying customers never saw what went on behind that that door.
When she went to the back room to retrieve a customer’s order, she closed the door behind her. In her interactions with the backroom crew, Janice could hold her own using language that was abusive, vulgar and profane. If an order wasn’t ready on time, she might go into a screaming hyper mode.
Dick was aware that the backroom workers commonly engaged in several forms of profanity. When he thought things were getting out of hand and the profanity too outrageous, he told them to calm down and act more civilized. After a while, he realized that he had to warn Janice more than the backroom crew. In fact, he noticed that her entry through the door is what tended to trigger the backroom uproars. Soon Dick began to think that Janice had stepped over the line far too many times and he fired her for what he called egregiously offensive behavior.
Janice applied for unemployment compensation, but was denied benefits when Acme challenged her right to benefits. Acme position was that Janice was fired because she didn’t adhere to a reasonable standard of workplace behavior. Janice countered that unemployment compensation shouldn’t be denied because Acme routinely tolerated profanity among the backroom crew. Therefore, she said, the company didn’t have any standard of workplace behavior in effect.
How could this situation have been avoided? Where is the tradeoff between a worker’s bottom-line performance and social interaction among coworkers? Are there any objective criteria for denying an application for unemployment benefits? Does it make sense to fire an effective employee for using strange methods to get work completed?
An attorney says:
Janice has a good point. How could Acme have a standard of workplace behavior when it tolerated profanity among the back-room crew but not from the front of the house when dealing with the back-room crew? There’s no indication that Janice used improper language with customers. In fact, it appears that she was “ever polite and courteous” with them. Had Janice used inappropriate language with customers, Acme would have been absolutely correct in terminating her.
Employers need to be mindful of treating workers in a uniform fashion. Apart from the unemployment issue, did Acme treat Janice differently because she is female? Or perhaps differently because she was born in the United States? Janice could have a potential discrimination claim, depending on the facts.
State unemployment laws differ somewhat in defining what constitutes “misconduct connected with the work,” but a termination for this reason generally results in a worker being denied unemployment benefits. Typically, misconduct is defined as an intentional act in disregard of the employer’s best interests or in violation of a standard that an employer legitimately expects. Often this requires either that the employee has been warned about the behavior but nevertheless persists in violating the rules, or that the conduct actually caused harm to the employer. However, if Dick merely told Janice to “calm down and act more civilized,” this hardly constitutes a warning that continuing to use profanity would result in her discharge.