Massachusetts wrongful termination

[LovingMonday]

What is the name of your state (only U.S. law)? Massachusetts

I'll try to keep this one short. I was an outside sales manager for a company who provided a company car and company credit card for all business expenses. I had been with the company long term and for a period of about 18 months felt the company wanted to get rid of my salary in order to hire someone for less money. I was called into the office while I was on the road. Upon entering the office I was asked into the conference room where the two owners handed me a termination letter. They accused me of using the company card to put gas in my personal vehicle. They claimed that I gassed up on FRIDAY July 31, 2016 in Manchester NH on my way back from a business trip to NJ/PA. They claimed I then filled the car again on Saturday August 1, 2016 at a gas station that I almost never use in Exeter, NH. Not having my outlook calendar, phone or even my reading glasses with me I was at a loss to explain. I never travel through Manchester, NH on my way home and I know I didn't get gas on that Saturday as I was working on my boat at the marina. We had to pull it out of the water and place it on stands to change over a stern drive piston. I never left the marina that day and I have at least 8 witnesses who were either assisting me or just there hanging out. It made no sense to me and I had no explanation. Even if I had filled up in Manchester, NH on Friday I knew I never got gas on Saturday. The only explanation I could think of is that maybe my wife went out in her car and grabbed one of my cards from my wallet. She regularly does this and I thought maybe she grabbed the company card by accident. It was the only thing I could think of.

My employment was terminated and I was sent home... When I got home I looked at a calendar to find that July 31st was actually a Sunday and the 1st a Monday. This made sense as I traveled from the marina to Manchester on Sunday to see my son who lives in NY and was in town visiting. We had lunch and while I was at lunch a good friend's wife called. He had a medical issue and was not supposed to be over exerting himself. He was determined to frame an addition on his garage that day and she asked if I could come up and assist so he wouldn't end up back in the hospital. So I gassed up and went to help. I returned to the marina afterwards as we live on our boat during the summer months. The next morning I drove an hour to our office where I worked the majority of the day. Mid afternoon I had to go to a client about 30 minutes away in Boston. When finished my work day was complete and I sat in several hours of rush hour traffic on my way to my softball game that night in Concord, NH. After the game I drove about 45 minutes home to shower, drop off my softball gear and get what I needed to spend the night at the boat (we live on it in the summer). On my way from my house to the marina I called my wife to see if we needed anything at the boat. She said the ice was low in the cooler, so I stopped at the gas station in Exeter, NH that was mentioned above. The only reason I went to this station is because it was right off of the highway on my way to the boat and being late it was still open. I gassed the company car up around 11:30pm and grabbed ice and went to the boat. The next day I traveled an hour to the office for work.

Since this time I have been denied unemployment benefits because the owners stated that I stole $25 worth of gas. I didn't do it and I explained that to Massachusetts unemployment. I have now filed for an appeal. I have witnesses ready for the appeal and will be working with an attorney. I was hoping to get some different points of view regarding my legal options. There is no doubt in my mind that the owners calculated this out in advance in order to avoid my collecting unemployment. They know how to work the system... Any help/insight would be greatly appreciated.

 

[cbg]

FYI, what you have described is not a wrongful termination in Massachusetts (or any other state with the possible exception of Montana). A wrongful term does not mean that you were terminated for something you didn't do; it means you were terminated for a reason prohibited by law. It is not illegal for them to fire you because they believe you stole the gas, even if they are mistaken. So if by "legal options" you mean suing your employer, I'm not seeing that you have any legal options.

So, which cards did you use for which "gas up"?

 

[commentator]

Working with an attorney for unemployment purposes doesn't mean a whole lot unless the attorney is quite well versed in unemployment law. Though Massachusetts unemployment benefits are better than most other states by far, they're still not a whole lot of money, and are very temporary, six months at the very best. It's seldom worth a whole lot of attorney fees to possibly get yourself approved. And then, again, not so likely.

It sounds as though filing for unemployment benefits is indeed your only recourse. And the hearing officer will go with the party whose story is "most believable." Using the company credit card to buy gas for your personal use is one of those things they can classify as "gross misconduct" which means that you should've known it was wrong to do it even one time, without warnings. If you had been warned about this previously, that would only increase their chances of prevailing, but prior warnings are not required.

It might be to your advantage if you had used the company credit card for personal gas before WITH THEIR KNOWLEDGE and approval. That way you could say you had a reasonable expectation that it would be all right for you to do this and you didn't expect to be fired if terminated for doing it. Or if you knew of others in the company who regularly did this without any repercussions.

Since you have been denied in the initial appeal, you will be given an opportunity to present (or your attorney will be if this is the route you take) the situation over again in a hearing. I hope they will guide you to leave out a great many of the personal details you provide here, (" to put in a stern drive piston....ate hot dogs for lunch....etc.") and get right to the did you or did you not use the company credit card on a weekend to put gas in your car for personal use. Frankly, it sounds a heck of a lot like you did.

As far as any kind of wrongful termination, you are still in an at will state, where they can terminate you even if you can definitively prove that you did not do what it was that they fired you for. Just because they wanted to do it. So there is nothing you might receive except unemployment benefits, and it is not looking too positive to me for your chances of being approved for it. Nothing I hear in all this detail and obfuscation indicates that you did NOT do what they say you did, just that you "don't remember" it, or your wife must've done it. They go with the most believable party, you are not in a criminal court, you are in an agency hearing, and no one has to prove their case against you beyond a "reasonable doubt" just so they are reasonably sure you did do what you have been terminated for doing.

 

[LovingMonday]

CBG, thank you for your input. I wasn't planning on trying to sue for wrongful term. It's not a route I would want to take. As far as the cards, there is only one company card. It was used for both fill-ups. Both events the gas went into the company car.

Commentator, I agree about the level of detail. I just wanted to explain thoroughly here to avoid a slue of questions. I absolutely did not use the company card to put gas in my personal vehicle. When accused the owners gave me the wrong days that the dates fell on. Friday/Saturday to be clear. My wife taking the card by accident was the only thing I could think of. It was highly unlikely but again, there would have been no other reason as I knew I never got in any vehicle on that Saturday. I also knew I didn't fill up in Manchester, NH that Friday. It is nowhere near my route back from that trip. None of it made any sense when they wanted an explanation from me. The fact that I was basically ambushed by my bosses and asked to remember something that happened 90 days prior with no resources to aid me was difficult at best. Had they been accurate or honest about the days I would have had a chance of figuring out what occurred. I even said to them that none of it made any sense and mentioned if I had my calendar in front of me I might be able to figure it out. One of them went back to his office and looked up my calendar on Outlook and came back and said it was, "The Friday you returned from your NJ/PA trip and the following Saturday." He looked at the calendar and yet he still came back with Friday/Saturday. It makes no sense that he didn't know it was a Sunday/Monday. He had the calendar right in front of him.

I travel every week at least 3 days and it is common for me to travel 4 and 5 days a week and even work on an occasional weekend. I am in a different hotel nightly and even have problems remembering what hotel room number I am in returning from dinner. To trace back my steps from 90 days prior on memory alone is not an easy task. To do it under pressure of your bosses waving a termination letter in your face just makes it more difficult.

Four months prior two of our employees were terminated for punching each others time card. They were fired for stealing hours from the company. Two weeks later another employee was caught doing the same thing, stealing hours from the company. He was suspended for 3 days. He then did it again about a month later and was suspended for 5 days. He is still employed there. Yet I get accused of stealing $25 worth of gas, something I did not do. I get fired and denied unemployment. To me it's just wrong.

Thank you for your opinions and advice.

 

[eerelations]

It may be wrong, but it's not illegal.

 

[Chyvan]

asked to remember something that happened 90 days prior

This is really important. UI is about the reason you got fired at the time you got fired. Being fired for something you did 90 days ago, starts to be way too long. Had they fired you right after it was discovered on the monthly statement, that's one thing, but not 2 months later. Make sure if your attorney doesn't catch that that you bring it to their attention. When an employer waits too long, it's "condonation."

 

[FlyingRon]

And to put it simply, they can fire you just so they can hire someone who will work cheaper.

 

[Zigner]

This is really important. UI is about the reason you got fired at the time you got fired. Being fired for something you did 90 days ago, starts to be way too long. Had they fired you right after it was discovered on the monthly statement, that's one thing, but not 2 months later. Make sure if your attorney doesn't catch that that you bring it to their attention. When an employer waits too long, it's "condonation."

It could easily be argued that it took that long to discover it.

 

[commentator]

Okay, if what you are saying is that they showed you a charge on your account, and demanded to know if you had done the charge, which was on a weekend, and they didn't give you time to get your story straight or try to figure out what happened before they terminated you, that's not really wrong of them. There is certainly no law that requires they even allow you to try to explain.

They can fire you without listening to any explanation. To keep you from receiving unemployment benefits, which costs the company money, after your termination, they must show the agency that they had a valid, misconduct reason to terminate you. That you knew the rules, knew that it was wrong for you to do this, that you might be terminated for doing it and you chose to do it anyway. That is what will be addressed in the hearing.

If they wanted to fire you for doing a charge on the weekend, even if you put the gas in the company car, and they have the paperwork showing it was done and when it was done, and they argue in an unemployment insurance hearing that could not possibly be a legitimate charge, since it was done on the weekend, not when you would have been on company business, that's a perfectly logical argument to make.

If you go into the hearing saying yes, you obviously did the charge, and on that date, and you had the most wonderful excuse in the world, which even was like maybe, your wife reached in your wallet and grabbed the wrong card while she was transporting your dying child to the hospital on the weekend, that still does not mean you did not use/allow the use of your company credit card for personal expenses. So they could still say it was technically a rules violation and fell under the definition of actual misconduct. Whether that would work for them or not I can't say.

After all you have said, it still seems like you did put gas in the company car on the weekend. Your argument is not that you did not use the card, but that you put in gas for use in the company car which you were going to use for company purposes the following day on your way to your boat on Sunday evening. What are witnesses supposed to say? I am not really understanding why you have all these witnesses or why they would be useful.

Your strongest argument/chance for approval in my opinion is the amount of time between the supposed incident and your actual termination. Had they just right then gotten the statement that showed you were misusing the company credit card or the company vehicle? If they were aware you had stolen $25 worth of gas from the company, why did they let you continue to use the car and the credit card and go on and work so long? Were they not afraid you would steal from them again? Why was this never brought up to you before? In other words, they were looking for an excuse to fire you, and so they started combing over the old records trying to find an incident where you had filled up with gas on a weekend, or in some way that they could claim was misuse of their credit card. Until they found it, they were letting you continue to work because they KNEW you were not stealing from them or misusing the credit card.

Yes, if they can catch you misusing their credit card, clocking in for someone else, misusing their internet service, those are the easy fire/no unemployment deals they can come down with. A wise employee makes no mistakes they could be caught on. And it's true, you probably didn't do this as a rule or make a practice of misusing their card or stealing from them and they know it. They're just looking for a reason to fire you and a way to avoid unemployment.

 

[LovingMonday]

Commentator,

Thank you for the further insight. It was very common for me to fill the car up on a Sunday prior to the work week. Most every Monday I was on the road and had a long drive ahead of me (2 to 7 hours). It was also very common for me to have to fill the car up again on Monday if I drove enough miles. I drove an average of 1,200 miles a week for work. That's 3+ tank fulls a week (some weeks more some less). Even my commute to the office was an hour without traffic. For me it's easier to fill up on Sunday afternoon or evening rather than at 6:00am Monday morning. The company car was used for personal use although the vast majority of personal use would be short runs to the store, bank etc... of less than 5 miles. 98% of the use was work related. There was no policy against using the car for personal use.

Also, I calculated the days incorrectly from when the event occurred and when they confronted me. It was 45 days, not 90. Of the two owners one felt I made too much $$$ and the other didn't. The one who felt I made too much would cut his two legs off to save a penny. He is the cheapest person I have ever met. He is the one who confronted me with the termination letter and argued the incident. The other sat and never said a thing. I could tell he wasn't on-board with the situation but he is the minority owner so it wasn't his call. This owner actually pulled the majority owner out of the conference room to try and reason with him. At the end of the day when I returned all of the company property to the minority owner he admitted to me that it was predetermined and that there was no changing the majority owners mind...

I shouldn't be denied unemployment benefits. I understand they can fire me for any reason. I'm ok with that. I just wish they would have had the decency to just let me go and collect unemployment. I have never stolen from them. In fact I have always asked for permission to take things I needed. Examples: cardboard boxes, packing tape and even scrap metal that was going to be thrown away. I had no need to steal $25 worth of gas and I certainly wasn't going to risk my job over it. I was with the company for almost 20 years, never stole one thing, EVER!

 

[commentator]

All that good service and years of honesty don't count for much when there's a dollar or two in the way, as you found out. But do keep this hearing on target, and your argument (or your attorney's should be, if you are going to use an attorney) that they did not have a valid misconduct reason to terminate you. That they knew you were not stealing from the company, and that when they wanted to get rid of you because one of the partners thought you were being paid too much, they went back through your records and found an incident they could try to claim was misuse of the company vehicle, company credit card, whatever.

Don't be silly enough to bring up unless they or their representative asks you directly, that you have EVER used the company car for any personal errands, even "less than five miles" etc. That's not what they accused you of. They accused you of putting $25 worth of gas in the car and then using it up on your personal activities. Just keep it simple and on topic.

Don't throw in how they have mistreated other employees, or how one employee was fired for this and that and another was not fired for it. If it is not related to what they're telling you that you were fired for, it does NOT matter and doesn't need to be brought up. And for goodness sake, do not mention that you filled the car up with gas then ran down to the boat with a load of ice that your wife had told you to bring as you were coming in from yada yada yada. Just quietly say that you did sometimes fill the car with gas in the evenings before you began work the following morning. That is obviously what must have happened on the occasions they are questioning.

All this stuff you're throwing in and your protestations that you weren't allowed to "figure out what happened" or "tell them your side of it" is worthless. They obviously came into the termination meeting with your letter of termination already written, and their plan of action already set up to fire you for stealing $25 worth of gas from them on this occasion, regardless of what you told them or how you explained it. And that they didn't allow you to get your story straight before firing you isn't something that is important in the unemployment hearing.

As it has been pointed out, that they did not go over your credit card statements immediately and find that you had bought gas on a weekend until some length of time after the alleged incident occurred indicates that they were obviously on a witch hunt for something they could find to accuse you of. This by far is the strongest part of the argument you have for your side. There was no misconduct on your part, and they knew that there was no flagrant misconduct. They were "condoning" your ordinary and habitual pattern of use of the company car, even your occasional fill ups that occurred on weekends--until they suddenly decided you were being paid too much and wanted to cut costs, and then they searched out something they thought would show misconduct that had occurred at some previous point in time before your termination.

Okay, in those days between the supposed incident and your termination, had they received multiple credit card statements? At least two, right? How long had it actually been? Had you, in all this time, been regularly using the car in your usual manner? Be sure and stress that throughout your whole employment there, they had been happy with your use of the car and the credit card up to this point, that you did ever mis-use the card, and that you had always been perfectly honest with them and had NOT stolen any money or misused the card in any way. That's all you need to bring in. Skip the what you and your wife and your son and everyone else did on the weekend in question.

You don't use the criminal law technique of attacking their evidence. You just tell your story, in a way that brings up the points you want to make. You don't admit any wrongdoing or anything questionable that you are not directly forced to admit to, even that there was no policy against personal use of the car and that 98% of your use of it was for work. The more you talk, the more likely you are to miss the points you are trying to make, or to say something incriminating. The hearing officer will be listening for who they think is "most believable" of the two parties. Talking too much makes you sound less believable.

 

[LovingMonday]

Commentator,

Thank you again for your input. In relationship sales it is important that you ask direct questions and avoid distracting chit-chat when meeting with a client/potential client. It's your job to steer the conversation using your questions and even sometimes silence. It is important to listen to the individual(s) you are meeting with and gather the answers you were looking for along with some unexpected pieces of valuable information. Your advice sounds very similar in nature. Staying on-point is something I can and will do. Thank you for helping me understand how this hearing system works. It sounds like the employer has a severe advantage in this arena.

 

[commentator]

Commentator,

It sounds like the employer has a severe advantage in this arena.

Not in the hearing situation, really. In the actual workplace, yes, even in MA, which is considered quite an employee friendly state, the workplace is set up for the employers, not for the employees.

But so far, in our federal unemployment program, the employer is not supposed to have an undue advantage. Because they have to pay out the employment taxes on each employee, and because when an employee gets to draw unemployment benefits it causes their tax rates to increase, the agency understands that if the employer were allowed to determine who gets unemployment benefits, nobody would ever get them.

But they also understand that the employer will sometimes have an excellent reason to terminate an employee who richly deserves termination. The system is set up so that it is understood that the two sides have both got a big interest in their side of the story being believed, and the understanding that either or both parties, both the employer and the claimant may not be telling the exact truth about the situation. So they're listening very carefully. Which of the two parties comes across as most believable?

What you mention as the sales techniques you have been trained to use are similar to the techniques that are taught to the people who will be conducting the appeals hearings. Listen for certain things. Screen out the irrelevant. Be familiar with what the law states, what you are looking for here. In presenting to them, be brief and on target with the points you wish to make. Do not argue, lose your poise, over-detail and do not attempt to quote or argue case law to the hearing officer.

These agency hearings are supposed to be such that both parties can self represent without using attorneys. If your employer is as cheap as you say, I doubt he will have an attorney representing him. But even if they do, some attorneys have more experience with unemployment than others. They are usually smart people who can read the statutes and figure out what they need to emphasize for the benefit of their side. You need to figure out what you need to emphasize to show that the company did NOT have a valid misconduct reason to terminate you.

Good luck to you. Let us know how this goes.