HR Strange But True!
March 17, 2009

The main course for this week's HR Strange but True! is a story about a tuna sandwich. For dessert, we have a story involving ice cream and a secret recipe.

Ralph Reese had worked at a Whole Foods market in New York for more than 2 years. In September 2008 he was transferred to the deli department. Two months later, he was closing up the deli department at 11:45 p.m. when he put a tuna sandwich on the counter, intending to eat it, he said, at the store before going home. The sandwich was one of 30 that were to be discarded in the trash per company policy. A manager saw the sandwich and threw it in the trash. Reese then discarded the remaining 29 sandwiches.

The store fired Reese, saying he had violated company policy by attempting to take food without paying for it. Reese filed for unemployment benefits, but the New York Department of Labor denied his request. The department said Reese was disqualified because he had been fired for misconduct in connection with his job.

However, Reese appealed, and an administrative judge for New York's Unemployment Insurance Appeal Board reversed the department's decision. The judge based the decision on several factors.

The judge said Reese had never consumed the sandwich and never took it off the company's premises. The judge also noted that on prior occasions another manager had given permission to eat food that was to be discarded. In addition, the employer never warned Reese for any similar behavior in the past. At the most, the judge said, Reese's actions were a single instance of poor judgment rather than the type of misconduct that should disqualify him from unemployment benefits.

In the other food-related story this week, the Bank of America is invoking the ice cream defense.

The attorney general for the state of New York has been sparring with Bank of America to disclose information about the bonuses paid to employees of Merrill Lynch, the company it bought amid the financial crisis. Merrill Lynch employees received more than $3 billion in bonuses in 2008.

Bank of America wanted to keep that information private. In court, Bank of America cited the case of Carvel ice cream to support its argument, the New York Times reports (the newspaper also reported on the tuna sandwich case). Carvel successfully argued nearly 30 years ago that it was under no obligation to hand over its secret recipe to the state during an investigation into whether the company violated antitrust laws.

Now, Bank of America argued its bonuses and compensation practices are a secret recipe akin to Carvel ice cream, the newspaper notes. The company said releasing the information would put it at a disadvantage to competitors and risk employees' privacy.

New York Attorney General Andrew Cuomo disagreed. First, he said, the public has a right to know where their tax dollars are spent (the two companies have received about $48 billion in government aid). Second, he argued, financial firms routinely get information on their competitors' executive compensation practices (as a way to set compensation levels to retain workers and attract new employees).

On Wednesday, a judge sided with Cuomo and rejected Bank of America’s arguments. The company can appeal the decision.

Source: New York Times

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