Home Depot pressures employee to sign contract, gets sued

[Darth Wong]

http://www.moneyville.ca/article/121748 ... ment-to-12

Fired at 63, court ups 7 month settlement to 12

By Sheryl Smolkin | Tue Jun 26 2012

When Eric Rubin was fired from Home Depot Canada after 20 years, he accepted 28 weeks pay in lieu of notice on the day he was fired in exchange for signing a form that released the company from further obligation.

But after rethinking what had happened, Rubin, 63, sued and won a full 12 months pay and benefits even though he had accepted the earlier deal.
Rubin was invited to what he thought was a routine business meeting on July 28, 2011 and was told instead it was his last day of work. His position as a Competitive Shopper had been eliminated.

In lieu of notice, he was offered 28 weeks of pay worth $30,977.81. In addition, life insurance, health and dental benefits were continued for the 28 weeks or until he got another job. Short term and long term disability benefits were extended for eight weeks.

Rubin was told his offer exceeded the legal requirements of 27 3/4 weeks of pay and to get the money he had to sign the release within five days. He signed during the meeting because he believed he wasn’t entitled to anything else. He later realized he had made a mistake and hired a lawyer who sued Home Depot on his behalf.

In his written decision, in which he awarded Rubin one year's pay, Ontario Superior Court Justice Thomas Lederer reviewed Home Depot’s treatment of Rubin across four criteria:

Was it grossly unfair? The judge did not accept that a 20 year employee nearing the end of his working life who was fired due to a company re-organization was entitled to only six months’ notice.

Did Rubin have legal advice? The letter required Rubin's signature within a week and the implication was that if he didn’t sign, he would not be paid. If Rubin had talked to a lawyer right away, he would have realized Home Depot had to pay him 27 3/4 weeks whether or not he signed a release. He also would have been aware of his right to sue for more in lieu of notice.

Did Rubin understand the offer? The judge said there was an imbalance in bargaining power. Rubin had only worked for two companies in his life and was employed by Home Depot for close to 20 years. Because he had never been fired or unemployed previously, he was unfamiliar with his rights.

Was Rubin manipulated? The offer was presented in a such a way to get Rubin to sign it. He was told he was already getting more than he was entitled to and effectively, he was not given the option to accept or reject the offer.

So the judge ruled that the release Rubin signed was unenforceable and awarded him 12 months of salary plus benefits.

This case is another reminder that if you are fired it pays to get independent legal advice instead of accepting your employer’s offer immediately and signing a release.

The Law Society Referral Service is a public service of the Ontario Law Society that helps people find a lawyer or paralegal. They will provide you with the name of a lawyer or paralegal who will provide a free consultation of up to 30 minutes. You can access the service by calling: 1-800-268-8326 or 416-947-3330 (within the GTA).

That's a nice douchebag move they tried to pull, pressuring him to sign a contract waiving his employee rights by making him believe he would lose his severance pay otherwise. I'm glad to live in a province that hasn't had employee rights taken away in the name of "economic growth" yet. I have to imagine that if this happened in a "right to work" state, he would have been entitled to nothing.

[TheFeniX]

Did Rubin have legal advice? The letter required Rubin's signature within a week and the implication was that if he didn’t sign, he would not be paid. If Rubin had talked to a lawyer right away, he would have realized Home Depot had to pay him 27 3/4 weeks whether or not he signed a release. He also would have been aware of his right to sue for more in lieu of notice.

Good on the judge: no organization should have the right to ambush someone in this manner and hide behind a signature after-the-fact to justify it. "You should have known you rights" is bullshit, no matter the circumstance.

I have to imagine that if this happened in a "right to work" state, he would have been entitled to nothing.

Workers are entitled to anything the company has in their written retirement or severance packages, as well as what's entitled via unemployment. The issue with dick moves like this generally stem from either fraud on part of the employer and/or ignorance on part of the employee. I don't think they could force someone to sign away (for example) 12-months of benefits and only leave them with 6 months. The paper trail would make it way to easy to prove fraud.

I had a coworker get laid of from a different job and when he tried to get unemployment benefits, his employer turned around and said he was fired for incompetence (which would entitle him to $0). He was still in legal proceedings after more than a few months (and when he got hired on with us). The judge was inclined to believe the employer, except there was zero evidence of incompetence (through HR records, just the word of the employer). This opened the employer up to legal action because, even though you don't have to give a reason why you fired someone, you can't fucking lie about it. He did finally get his benefits.... most of which paid off his lawyer.

But this situation is weird. Home Depot gave him the barest legal amount of benefits and the judge awarded more. That probably doesn't happen in America that often. Probably because, unless Home Depot has severance (or whatever), he would be entitled to exactly shit from them (besides what he paid into unemployment).

[Rogue 9]

I have to imagine that if this happened in a "right to work" state, he would have been entitled to nothing.

No need to imagine. This is exactly the case. The only way you get severance under right to work legislation is to have it in an employment contract, which most hourly workers simply do not get. (That is, no contract at all, not simply no provision in it for severance.) "Right to work" is simply the legal elimination of employment security protections, because it basically means that either party can terminate the employment relationship at any time with no notice for any or no reason. This is touted as fair because workers are allowed to simply leave an employer for another one if it's advantageous for them to do so, but in practice if you go around quitting jobs without notice, employers will hear about it and not hire you, while they get to fire anyone they want without notice or benefits.

As an added bonus, since they don't have to give a reason for termination, the only way to nail them for wrongful termination is to either trick them into admitting an illegal reason on the record or managing to get a copy of your personnel file (which they won't just give to you; I've only gotten mine at one job and that was by having access to the office and photocopying it myself).

[TheHammer]

I believe the term you are thinking of is actually "Employment-at-will". Which is where people can quit or be fired at any time for any legal reason.

"Right to work" means you don't have to join a union in order to get hired for a job, thus neutering the power of unions somewhat.

But yeah, in the states this guy woulda probably been lucky to get a couple months severance let alone what was deemed inadequate by Canadian law. Sad and pathetic I know

[Vendetta]

"Right to work" means you don't have to join a union in order to get hired for a job, thus neutering the power of unions somewhat.

Which, of course, tends to lead to shitty rules about how and why people can be fired and what compensation and notice they will be due.

[Block]

I believe the term you are thinking of is actually "Employment-at-will". Which is where people can quit or be fired at any time for any legal reason.

"Right to work" means you don't have to join a union in order to get hired for a job, thus neutering the power of unions somewhat.

But yeah, in the states this guy woulda probably been lucky to get a couple months severance let alone what was deemed inadequate by Canadian law. Sad and pathetic I know

Right to work and employment at will go hand in hand. All right to work states operate under an employment at will arrangement, although employment at will isn't a hard and fast rule, you can't violate your own company policy or any signed or implied employment contracts when terminating employment.

[Rogue 9]

No, he's right, I was describing employment at will legislation rather than right to work. My home state has been employment at will for as long as I can remember, and just enacted right to work legislation this year, which was the source of my confusion (along with Darth Wong calling it right to work in the OP). Right to work prohibits union security clauses in union contracts.

[Aaron MkII]

http://www.moneyville.ca/article/121748 ... ment-to-12

Fired at 63, court ups 7 month settlement to 12

By Sheryl Smolkin | Tue Jun 26 2012

When Eric Rubin was fired from Home Depot Canada after 20 years, he accepted 28 weeks pay in lieu of notice on the day he was fired in exchange for signing a form that released the company from further obligation.

But after rethinking what had happened, Rubin, 63, sued and won a full 12 months pay and benefits even though he had accepted the earlier deal.
Rubin was invited to what he thought was a routine business meeting on July 28, 2011 and was told instead it was his last day of work. His position as a Competitive Shopper had been eliminated.

In lieu of notice, he was offered 28 weeks of pay worth $30,977.81. In addition, life insurance, health and dental benefits were continued for the 28 weeks or until he got another job. Short term and long term disability benefits were extended for eight weeks.

Rubin was told his offer exceeded the legal requirements of 27 3/4 weeks of pay and to get the money he had to sign the release within five days. He signed during the meeting because he believed he wasn’t entitled to anything else. He later realized he had made a mistake and hired a lawyer who sued Home Depot on his behalf.

In his written decision, in which he awarded Rubin one year's pay, Ontario Superior Court Justice Thomas Lederer reviewed Home Depot’s treatment of Rubin across four criteria:

Was it grossly unfair? The judge did not accept that a 20 year employee nearing the end of his working life who was fired due to a company re-organization was entitled to only six months’ notice.

Did Rubin have legal advice? The letter required Rubin's signature within a week and the implication was that if he didn’t sign, he would not be paid. If Rubin had talked to a lawyer right away, he would have realized Home Depot had to pay him 27 3/4 weeks whether or not he signed a release. He also would have been aware of his right to sue for more in lieu of notice.

Did Rubin understand the offer? The judge said there was an imbalance in bargaining power. Rubin had only worked for two companies in his life and was employed by Home Depot for close to 20 years. Because he had never been fired or unemployed previously, he was unfamiliar with his rights.

Was Rubin manipulated? The offer was presented in a such a way to get Rubin to sign it. He was told he was already getting more than he was entitled to and effectively, he was not given the option to accept or reject the offer.

So the judge ruled that the release Rubin signed was unenforceable and awarded him 12 months of salary plus benefits.

This case is another reminder that if you are fired it pays to get independent legal advice instead of accepting your employer’s offer immediately and signing a release.

The Law Society Referral Service is a public service of the Ontario Law Society that helps people find a lawyer or paralegal. They will provide you with the name of a lawyer or paralegal who will provide a free consultation of up to 30 minutes. You can access the service by calling: 1-800-268-8326 or 416-947-3330 (within the GTA).

That's a nice douchebag move they tried to pull, pressuring him to sign a contract waiving his employee rights by making him believe he would lose his severance pay otherwise. I'm glad to live in a province that hasn't had employee rights taken away in the name of "economic growth" yet. I have to imagine that if this happened in a "right to work" state, he would have been entitled to nothing.

Has that started happening in Canada? I haven't been following this stuff though I wonder how it would go over in Ontario. With a minority government, McGuinty shouldn't rock the boat.

[The Kernel]

That's a nice douchebag move they tried to pull, pressuring him to sign a contract waiving his employee rights by making him believe he would lose his severance pay otherwise. I'm glad to live in a province that hasn't had employee rights taken away in the name of "economic growth" yet. I have to imagine that if this happened in a "right to work" state, he would have been entitled to nothing.

My own state of California is "right to work" and yeah you can basically be picked off and shown the door for any reason whatsoever in theory. In actual practice they typically go through a CYA process (involving documented plans to improve your performance) before pulling the trigger to avoid being sued. Most companies will also give you a token severance package (1-3 months) in exchange for you signing away any rights to sue them after the fact and to keep your mouth shut about it. I've never been disposed of in such a manner but I've seen it happen to co-workers.

Slightly off topic but very amusing side note to being in a "right to work" state: apparently your former employer can still call upon you to provide any number of tasks after the fact for no pay and they think that is actually enforceable. For example, I got a ping from my previous employer asking me to show up to defend some patents I was the inventor on and go through a bunch of paperwork and legal stuff with them. Since my employer acted like a complete dick to me at the end there, I told them to go fuck themselves about it and now their legal department is flaunting this very broad clause that was part of my employment contract in order to try to get me to spend my time and miles on my car in exchange for nothing.

So apparently "right to work" and "at will employment" are ok but we can also allow people to enter into indefinite servitude agreements.

[Broomstick]

You did have an employment contract, which means "right-to-work" and "employment at will" won't necessarily apply to you. Those laws are intended mostly for those who don't have employment contracts, which is the case for the majority of US workers, even quite a few in management positions.

When I was laid off from Blue Cross I got something like what was described in the OP - paperwork to sign promising me X in exchange for not suing. I took it. Why? Because I felt it was as good a deal as I was going to get and didn't want to spend my time and money in a protracted legal battle I wasn't likely to win anyway. I also received one or two small things in return, in addition to the severance pay, including a guarantee they would not contest my unemployment claim (those outside the US might well be shocked at how often that occurs), no negative references regarding my performance if someone called up asking for a reference, and assurance that there would be no obstacle to my re-hire should I choose to apply for a different job in the future with them. I have some doubts about the last item, but I've been assured by other people taking the same option that I did under similar circumstances that they mean it (including two who actually had been rehired).

What if I had rejected the offer? Two weeks severance pay instead of several months and no possibility of future rehire (the assumption is basically if you don't take it you're intending to sue).

I'm assuming, though, that a Canadian wouldn't be used to playing the game the way it's played in the US. Heck, probably most American wage slaves aren't fully cognizant of their rights in these matters.

[Darth Holbytlan]

My own state of California is "right to work" and yeah you can basically be picked off and shown the door for any reason whatsoever in theory.

California is definitely not a "right to work" state. But it sounds like what you actually mean is that it is an "employment at will" state. (It is.) The former has to do with whether you can be required to join a union when you accept a job---in California, you can, so it is not "right to work". The latter is whether, if you have no employment contract, your employment can be terminated (by you or your employer) for arbitrary reasons.[*]

You did have an employment contract, which means "right-to-work" and "employment at will" won't necessarily apply to you. Those laws are intended mostly for those who don't have employment contracts, which is the case for the majority of US workers, even quite a few in management positions.

For "employment at will", that is basically right, but it is completely wrong for "right to work". If "right to work" could be voided by an employment contract then it would defeat the whole purpose---the agreement between the employer and union would just force the employer to require a contract with their hires demanding they join the union.

[*] Excepting specific prohibited reasons.

[The Kernel]

I guess I had gotten those terms muddled. It's all a bunch of bullshit anyway though since your employer is always going to terminate your employment in the most CYA manner possible to avoid getting sued and you are not going to just walk out on your employer for fear of being blackballed.

[Next of Kin]

Has that started happening in Canada? I haven't been following this stuff though I wonder how it would go over in Ontario. With a minority government, McGuinty shouldn't rock the boat.

Dalton hasn't brought up the issue of right-to-work but Hudak has started to mention it (without calling it right-to-work) as a way to make Ontario businesses more competitive and have a 'flexible' workforce.

[PeZook]

Wait, companies in the US contest unemployment claims of their ex-employees?

Why the fuck would they even care?

[TimothyC]

Wait, companies in the US contest unemployment claims of their ex-employees?

Why the fuck would they even care?

The way I understand it (and I could be wrong) is that if a company has a lot of people go on unemployment, they can get stuck paying more into the state unemployment funds (in theory, unemployment checks are supposed to be paid for by the money that companies pay into the state funds, in practice, not so much).

[Broomstick]

The cost of unemployment insurance is bore in part by the employer. The more former employees collecting, the more their former employer pays. The only way to get out of paying that employer's share is if the employee either quit on his or her own, or was "fired for cause".

If you quit, you don't get unemployment benefits. Those are intended for people who involuntarily lose their job, not for those who leave of their own accord.

If you were "fired for cause" it means you did something very wrong, like, say, steal a lot of money from the company. If you were fired for committing a crime or some extremely offensive act you likewise are not entitled to unemployment benefits.

I don't think many people would have issue with the notion of firing an embezzler and denying them unemployment payments as that's a crime anyhow. The problem comes in that there is incentive for a company to deny the employer was the instigator of ending the employment, namely, saving money. So typically the employer will claim no, the employee wasn't laid off/whatever, the employee quit on his or her own. If you get termination paperwork this becomes difficult for the company to claim (when I was laid off I was given a copy of the terms of my severance which I took to the unemployment office to document my eligibility) but if the end of the job is a verbal exchange it becomes all to easy for it to degenerate into he said/she said and the employer to claim the employee quit rather than was booted out.

[Zaune]

It also doesn't really address the fact that even if you're fired for cause (and there are many circumstances in which it's less clear-cut than getting caught with your hand in the register), you still have to eat. But that's probably another thread altogether.

[Broomstick]

Just remember the US safety net is pretty sparse compared to elsewhere.

"Fired for cause" means no unemployment benefits which, at most, last only 99 weeks in total and usually only 26. You can get food stamps, however, whether you were laid off, just quit on your own, or in most cases when fired for cause and continue to receive them pretty much forever (provided you don't exceed the asset limitations either at initial application or later down the line). So, you'll be able to eat either way. Keeping a roof over your head is the real kicker in that scenario. It's hard to starve to death in the US but it's frighteningly easy to become homeless.

[TheFeniX]

The problem comes in that there is incentive for a company to deny the employer was the instigator of ending the employment, namely, saving money. So typically the employer will claim no, the employee wasn't laid off/whatever, the employee quit on his or her own. If you get termination paperwork this becomes difficult for the company to claim (when I was laid off I was given a copy of the terms of my severance which I took to the unemployment office to document my eligibility) but if the end of the job is a verbal exchange it becomes all to easy for it to degenerate into he said/she said and the employer to claim the employee quit rather than was booted out.

In Texas at least, the onus is generally on the employer to provide the pertinent records. If they try to fight unemployment benefits, they should be prepared to provide cause as to why they are fighting and a lot of backup to make their case. Otherwise, many lawyers (including the one for our company after major amounts of fraud and theft) will recommend you just pay the unemployment, rather than risking court. Not to say unscrupulous employers don't find ways to cheat the system, but it's actually hard to do because judges want to see HR reports and filings. I'm about 2 years out from my business degree (ugh), but our professor's (pro union guy, worked HR for numerous companies) big push is that employers should have procedures in place and keep records on everything.