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  1. #1
    Join Date
    Jul 2013
    Posts
    10

    Default Boss Breaks the Law, I Get Fired

    My question involves labor and employment law for the state of: Hawaii

    The Quick Version :

    I believe I was retaliated against for repeatedly complaining about illegal practices within the restaurant to the owner and my supervisor. I was terminated via an MMS message from the owner two days after I clocked out, as previously directed by my supervisor. I had been a valued full time employee, and was promised my own dinner shift and better pay by mid-June if I were to stay along during which time I would work as a breakfast/lunch cook. I agreed and stayed along. Please understand I was personal friends with the two people I've mentioned. I have nothing in writing except text messages regarding the dinner position, though everyone in the company was aware that I was to become the dinner chef.
    The laws I complained of were as follows, in brief : child labor, fair wages, overtime, HIOSH, HACCP, tip allocation, nepotism, possible sex discrimination, retaliation, Department of Health violations, non-compliance of mandatory health insurance, and promissory estoppel regarding my recent severance. Their bookkeeper (my supervisor, the owner's girlfriend, whom is absolutely unqualified and just turned 24) giggled when she told me that the local IRS Commissioner was there buying coffee and she hadn't filed any taxes in three years, if that's even possible.
    They appear to have less than 15 employees. My educated guess is that they make more than $500,000.00 a year. They export small amounts of perishable goods to other states. I have filed complaints with the Departments of Labor and Health. I am owed unpaid overtime, as are other employees.

    Question : do I have a retaliation/wrongful termination case? Or anything else to prevent them from continuing on in this way?

    Other Info :

    The dinner shift promise was made around six months prior to my termination. I was promoted twice and worked hard for them. In August, I slipped and hurt my back outside of work. I requested a day off because I could not perform at work. The owner told me to take several more days off than I thought I needed, and told me I would need a doctor's clearance to come back. I reminded him that I had been working full time and that he had agreed to "look into" adding me to their insurance policy. I did not have the money to spend at a hospital when it was uncertain to me as to when I would be back at work, making money. I made this clear to him.
    After a week, he agreed to let me come back to work, without a doctor's note. Without any warning whatsoever, I was told at the end of my first shift back that I had permanently lost my two best shifts, and that the remaining shifts were to be altered as well. This was a very hard blow to me.
    I continued to work, and adjusted to the owner's wish that I provide training to the new hires, whom were in abundance and a direct result of preparing for extended business hours (for dinner). Each day that the owner over-staffed the restaurant, I was one of two people to be sent home early, and was directed by my manager to clock out once the new hires "seemed like they had everything under control". On a particularly low-sales Saturday, I checked with all my co-workers as to their comfort level with my leaving early, they all agreed, and I clocked out.
    There has never, in any way, been a written or online schedule or system. The owner and supervisor message or call each employee each week/day or sometimes forget to schedule people in their minds at all. I was never scheduled to leave at any particular time, though I had made a habit of showing up as per requested of my first shift back, which was 8 AM.
    The owner's son was also a cook, like me, but made about five dollars more an hour than me, and was still busy making a giant lasagna when I was already done with my specific duties. He was aware of my intent to leave, but waited until after I had clocked out to express that he had wanted to leave first, and I reminded him that we were so over-staffed that there were, in fact, people standing around getting paid, with nothing to do. He parties excessively and DJ's at rave type events, posting pictures on FB of himself drinking hard liquor only three hours before he is at work, using knives and fire around co-workers that are often under 18 years old.
    The owner's son called his father and complained that I was leaving, and hid in a corner of the kitchen while he presumably lied about the circumstances.
    The next day, I asked the owner if everything was ok. A day later he sent me an MMS message (which expires after 7 days coincidentally), stating that he was sad that he had to let me go, but that he needed someone he could depend on. Be it a misunderstanding on their or my part, this was the first time I had done anything they were not happy with.
    I have gone completely broke whilst awaiting the promised arrival of the dinner shift and my guaranteed promotion. I believe that the closeness in time between my complaining, my injury, my pay cut, and the termination of not just my job but also of the promise I had been so devoted to, constitutes an unjust and detrimental effect on my well-being, financially and emotionally.
    I applied for emergency food assistance, and because I had, within the last 60 days, become separated from employment, it was my burden to produce the owner's statement as to why I was no longer there (form 12-66 Dept of Human Services HI), which meant that I was now begging this callous man to comply with the department's request. He did not comply. I waited more than 11 days, and finally had their request overridden by my own personal statement, as per council from a kind woman at the Governor's Office. No, I do not have other resources. I didn't eat much for about ten days, and lost almost 13 pounds. I still don't feel recovered. And the owner actually sent me an antagonistic and rather cruel message regarding his non-compliance with the department's request a couple days ago.
    This business has been doing considerably awful things to its employees for more than 25 years. The owner is lewd and childish, his girlfriend is incompetent, and his son is a drug addict (a hazard) working around minors. Sorry but WTF

  2. #2
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Boss Breaks the Law, I Get Fired

    Rather than giving us a laundry list of things that you complained about and then asking if you were fired for that, why don't you tell us SPECIFICALLY what they were doing and what laws you believe were violated. (HINT - there is at least one item on your list that is not illegal, and another where, under the circumstances you've described, the applicable law does not apply. Little if any of what you've listed under Other Info violates any laws.)

    So before anyone can say, yes, this may have been illegal retaliation or no, there does not appear to be any illegal retaliation (of course, we will not be able to give you a hard and fast answer since we are not inside your employer's head) we will need more specifics about what laws were being broken, what the employer was doing that you believe was a violation, and to whom you made your complaints.

  3. #3
    Join Date
    Jul 2013
    Posts
    10

    Default Re: Boss Breaks the Law, I Get Fired

    Apologies and thank you for letting me know where I need to be more specific.

    * Child Labor : Having a 13 yo girl work in the full capacity of a normal employee, getting paid a flat $20.00 for 3-6 hours of work. Was told the supervisor was babysitting the girl.
    * Fair Wages : An elderly and mentally disabled woman works 2-8 hrs about 4-6 times a week, gets paid only in tips that front of house earns (so it is definitely less than state/fed minimum). No explanation is given regarding this mysterious employee.
    * Overtime : I personally was not paid an estimated 30+ hrs OT, and was laughed at by my supervisor, who expressed that she did not know what OT was and was not interested in mending it. (other employees are likewise denied OT)
    * HIOSH : Food Safety / Food-Borne Illness : The owner makes meat dishes at home and brings the leftovers in to sell. He also shops in bulk and leaves perishable items in an unclean cooler overnight at his home and brings it in to be unloaded at work the next day. The only excuse for that is laziness. The owner's son has constant (possibly drug-related) allergies and/or cold symptoms, and has sneezed and coughed directly onto customer food, and was expressly disinterested in my pleas for proper sanitation. The elderly woman I mentioned doesn't speak English and does not understand how to clean yolk off of plates. They had a cat that lived in the restaurant for years. Cross contamination abounds there and no one is trained to know when to throw something out. People have gotten sick. I was sick a lot working next to the owner's son, whom appeared to have a nasty staph infection.
    * HACCP : A food guideline, yes. Food is served and maintained at improper temperatures, again, these nice country folk laughed in my face.
    * Tip Mis-Allocation : Tips are taken by the supervisor and used as a means to avoid paying actual wages to at least one employee on a regular basis.
    * Mandatory Health Insurance for Full Time Workers : Neither myself nor any other full time employee has ever been offered insurance, despite it being State law.
    * Promissory Estoppel : I would not have agreed to keep my job there (I would have given notice and quit) if I did not reasonably believe that I would be promoted in mid-June. That promise alone lead me to endure their unsavory business tactics, wherein I expressly gave them every opportunity and piece of advice I could regarding all the ways they could rectify their practices. I was met with disbelief at first and it escalated into contempt by the time I was demanding insurance. Maybe my hours were cut so he could avoid having to deal with the insurance issue ? Maybe they were cut to drive me out ? Other, less-qualified and less-senior employees were given preference on the imaginary schedule I mentioned before. It seems deliberate to me.
    * Wrongful Termination : I was just yesterday denied Unemployment because the owner stated that I "was scheduled until 3:30 PM and left work at 12:30." As stated, my supervisor, his girlfriend, had instructed me to leave under the exact circumstances in which I left, NOT at any specific time. Many restaurants function this way, and to tell the truth, I was acting in the interests of the company by leaving, compelling new workers to get their jobs done and also saving them on a bloated payroll. I had never stayed as late as 3:30 before and do not know where the 3:30 thing came from.
    It could be noted that the owner's dysfunctional son has been seen throwing tantrums and walking out without clocking out or alerting his co-workers as early as 11:45 AM. There is no disciplinary action taken against the son, whom constantly compromises almost every aspect of production (that is the opinion of most people working there, and yes I am totally aware that nepotism is not illegal). This was the first time I had ever been accused of doing anything wrong. Does it not seem that the owner naively sought to oust me to "avoid" my complaining, thus avoiding any need to change the current manner in which he runs his business? Also to avoid making good on his promise to restore my previous full time status ? If I returned to full time, he knew I'd start bothering him about insurance again.
    He knows I am an atheist and yet he mockingly tells me to "pray for justice".

    Q : Is it legal for an employer to fire an employee for a fabricated reason to avoid my complaining / health insurance / promoting me as promised ?
    Q : Is it illegal for an employer to promise me, in front of my co-workers and others, that I will be promoted so long as I maintain my newly demoted position, and then to fire me the very same day I was to begin working the new position ?
    Q : Is it illegal to ignore me for months on every complaint I make (the above listed are all things for which I was vocally opposed) ?
    Q : Is it illegal for my supervisor, whom is clearly biased, to lie about me (regarding the time at which I was told to leave) ?
    Q : Is it illegal for the owner to lie to Unemployment about the existence of a schedule ?

    Thank you so much for any info or advice you might have to offer, I feel like this has been an injustice but if that is not the case then I will just get on with my life and I guess not complain when my boss is breaking the law in the future

  4. #4
    Join Date
    Dec 2009
    Location
    Lake Chapala
    Posts
    3,043

    Default Re: Boss Breaks the Law, I Get Fired

    It would be illegal retaliation if you reported these infractions to the relevant authorities. Did you report any of these infractions to the relevant authorities? If so which ones? (Which infractions and which authorities?)

  5. #5
    Join Date
    Jul 2013
    Posts
    9

    Default Re: Boss Breaks the Law, I Get Fired

    I agree, if you would have records in the past of these complaints maybe they would work on your behalf. unfortunately you have no documentation supporting your claims therefore I think you have a difficult task ahead, but never the less this is America and you have a right to due process.these are mostly all opinions given to you and not law therefore the best thing to do is contact a labor law and try to keep your complaint short and direct cause for the most part its human nature to stop listening after 300 characters and just hearing you go on, no fun intended. good luck.

  6. #6
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Boss Breaks the Law, I Get Fired

    Not everything that was discussed is illegal. For example, there are no nepotism laws; it is quite legal to treat family members differently than others. It is also legal, under almost all circumstances, to break a promise of promotion. No laws require an employer to provide a written or online schedule. As a matter of fact, there are no laws regarding schedules, period.

    Let's take your questions step by step.

    Q : Is it legal for an employer to fire an employee for a fabricated reason to avoid my complaining / health insurance / promoting me as promised ?

    It is legal an employer to fire an employee for a fabricated reason to avoid your complaining, with limited exceptions. It is also legal to fire an employee for fabricated reasons, to avoid promoting you. (Though it would also be legal to simply say, I've changed my mind and I'm not going to promote you.) It may or may not be legal to fire you for a fabricated reason to avoid your complaining to the state about the lack of health insurance.

    Q : Is it illegal for an employer to promise me, in front of my co-workers and others, that I will be promoted so long as I maintain my newly demoted position, and then to fire me the very same day I was to begin working the new position ? No. You do not have a right under the law to a promotion.

    Q : Is it illegal to ignore me for months on every complaint I make (the above listed are all things for which I was vocally opposed) ? In most circumstances, no. We'll get into the exceptions as we go.

    Q : Is it illegal for my supervisor, whom is clearly biased, to lie about me (regarding the time at which I was told to leave) ? No.

    Q : Is it illegal for the owner to lie to Unemployment about the existence of a schedule ? No. The unemployment office operates under the assumption that either or both parties may well be lying.

    Now, to get into some of the other stuff.


    * Child Labor : Having a 13 yo girl work in the full capacity of a normal employee, getting paid a flat $20.00 for 3-6 hours of work. Was told the supervisor was babysitting the girl.
    * Fair Wages : An elderly and mentally disabled woman works 2-8 hrs about 4-6 times a week, gets paid only in tips that front of house earns (so it is definitely less than state/fed minimum). No explanation is given regarding this mysterious employee.


    Both of these situations fall under the circumstances of Nunya. If the girl's parents or the elderly woman want to complain, they are free to do so. There may well be circumstances of which you are not aware, and which the employer has no legal obligation to tell you (and in face may be prohibited by law from doing so, depending). An example, reasonably on point, that I was personally involved in: A team leader moved out of state, so someone was going to be promoted. Everyone assumed it would be the woman who had been longest in the department. She was over 60 and the only minority in the department. When someone else was promoted, everyone jumped to the conclusion that it was age and race discrimination. In actual fact, she had been offered the promotion and turned it down, and the woman who was promoted had been her recommendation. Moral of the story - don't assume that everything you see, or even everything you are told, is the whole story.

    * Overtime : I personally was not paid an estimated 30+ hrs OT, and was laughed at by my supervisor, who expressed that she did not know what OT was and was not interested in mending it. (other employees are likewise denied OT)
    Then you and the other affected employees are free to file a complaint with the state DOL.

    The next two items on your list have nothing to do with employment law.

    * Tip Mis-Allocation : Tips are taken by the supervisor and used as a means to avoid paying actual wages to at least one employee on a regular basis. Then that employee is free to take the appropriate action to file a complaint. It is neither your business nor your problem, and it's not up to you to complain to management about it. Once again, you do not necessarily know the whole story.

    * Mandatory Health Insurance for Full Time Workers : Neither myself nor any other full time employee has ever been offered insurance, despite it being State law.
    Then contact the state and report it.

    * Promissory Estoppel : I would not have agreed to keep my job there (I would have given notice and quit) if I did not reasonably believe that I would be promoted in mid-June. Quite honestly, this falls under the category of Deal with It.

    * Wrongful Termination : I was just yesterday denied Unemployment because the owner stated that I "was scheduled until 3:30 PM and left work at 12:30."
    Wrongful termination does not mean that you were fired for something you didn't do or that your employer gave Unemployment a different reason than you were given; wrongful termination means that you were fired for a reason specifically prohibited by law.

    Your case is weak at best. I'm not saying it's non-existent. You definitely have legal recourse to be paid your overtime and you can certainly advise the state that the employer is not adhering to state laws regarding health insurance. But it's far from clear that you have a claim for wrongful termination. Much of what you are complaining about is either not illegal at all, not a matter of employment law, or not happening to you, and your claim for wrongful term by reason of retaliation would be much stronger if you had complained to the state regulatory agencies instead of to your employer. Have an employment law attorney review all the facts of the matter but if you're looking for a loud and clear, Yes, your termination was illegal and you can sue, I'm afraid I can't give you that one.

  7. #7
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,273

    Default Re: Boss Breaks the Law, I Get Fired

    Quote Quoting eerelations
    View Post
    It would be illegal retaliation if you reported these infractions to the relevant authorities. Did you report any of these infractions to the relevant authorities? If so which ones? (Which infractions and which authorities?)
    Is this true for this state? HI is pretty liberal and most liberal states do not require a complaint to be filed .

    This OP is listing SO MANY issues that I doubt anyone would believe him.

    Not everything he noted would be a cause of action for retaliatory or wrongful discharge.

    The OP should visit a lawyer...

  8. #8
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    17,019

    Default Re: Boss Breaks the Law, I Get Fired

    You were fired for dependability issues. File for UI and move on. Turn his business in as an IRS whistleblower and hope for a windfall payoff from it.

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