by Len Lear

On Saturday, Oct. 8, four of us went to the Red Lobster restaurant in Montgomeryville. We asked the hostess if it would be possible for us to be waited on by Jonathan Schilling, whom we knew from a previous experience at the same restaurant. We had had a fun-filled evening a couple of months ago, in large part because of Jon’s attentiveness, knowledge of the menu and great sense of humor. (Jon has also done standup comedy at several area comedy clubs.)

Server Joseph Schilling, who has also performed standup comedy at several local comedy clubs, was fired last month, but that’s about the only thing he and his former employer agree on. (Photo by Len Lear)

Shortly after we were seated, Jon, 29, who has been a server at area restaurants for 13 years, came over to our table and took our drink orders while we re-established our acquaintances and kidded with him about something silly. He said he’d be right back with our drinks and to take our food order.

That was the last time we ever saw Jonathan. Eventually, another server came over, a very pleasant fellow named Joe, who waited on us for the rest of the evening. We assumed that Jon must have been waiting on other tables in another room because we knew that we were not in his usual coverage area. The gigantic restaurant can seat about 300 customers over several rooms, and there was a huge crowd that night as well as many people waiting to be seated.

The following day, however, I called Jon to ask why he had disappeared. (I had his home phone number because I had been considering doing an article on his standup comedy experiences.)

Jon,who lives nearby, apologized for not returning to serve us, but he said that when he went into the kitchen, his manager, Joe Yoffee, told him he was suspended and that he had to go home immediately. “He told me he thought I was on drugs and unfit to work and that I was being suspended. I took great offense to his statement because I have never taken illegal drugs in my life.”

The following night Jon called me and said that he had received a call from the manager, informing him he was fired. “He stated that he sat down with (another member of management), and they both agreed that I was on drugs and that I was terminated. I think it’s funny that none of the guests thought I was on drugs because I wasn’t. I get nothing but compliments from the guests I serve, because I am a phenomenal server, and I have done nothing wrong. And now I am out of a job.”

The following day I called Erica Jaeger, corporate public relations spokesperson for Red Lobster, based in Orlando, Florida, who got back to me two days later and said in an email, “Out of respect for the privacy of our current and former employees, we do not discuss personnel matters outside of the company. However, we are a company that strongly believes in respect, integrity and fairness and are proud to be named a Fortune 100 Best Company to Work For. I did look into the matter you shared and can assure you the appropriate steps were taken.”

In reply, I wrote, “You wrote that ‘the appropriate steps were taken.’ Does this mean Mr. Schilling will be offered his job back? Does it mean that a policy will be put in place to handle cases like this where employees are accused of illegal drug use? How can the public know that ‘the appropriate steps were taken’ if they don’t know what those ‘appropriate steps’ are?”

Erica’s reply: “We understand your position, Len, but please understand that for legal and ethical reasons, as well as respect for our employees’ privacy, we cannot discuss personnel matters like this publicly.”

Since I got nowhere with the corporate headquarters, I called Mr. Yoffee, who was willing to answer my questions. “Jonathan was not in the right frame of mind,” he said, “but I did not accuse him of using drugs. I have no way of proving that. It is not my call to make. We do expect a certain level of performance, and when a server does not deliver, I have to make the call. We had 23 servers on the floor that night, and if there’s one who can’t handle the load, I have to make the call then and there.” (I did point out that Schilling was one of the best servers we had encountered in a long time in any restaurant.)

Both Jon and Mr. Yoffee told me that Schilling was previously suspended a few months earlier. Jon insists that at the time he was taking Ambien, which he said had been prescribed by his doctor for sleepnessness. One of the side effects of taking Ambien, according to its manufacturer, is drowsiness.

I called Ari Karpf, of Karpf & Karpf, a Philadelphia law firm that specializes in employment law, to seek his insight on the issue. Karpf said, “Our firm brings between 125 and 175 suits a year in Pennsylvania, New Jersey and New York for wrongful termination. That’s all we do. Jonathan is not entirely without protection, but unless you have a contract or belong to a union, the employer can fire you at will.

“This may sound odd, but the best-case scenario might actually be if the employee did have a history of drug use but had become clean. Then the Disabilities Act might come into play because an employer cannot fire you because of a disability, and a drug history could conceivably be considered a disability.”

I then called Lewis Maltby, spokesman for an organization in Princeton, NJ, called the National Work Rights Institute, which advocates and lobbies for workplace legislation that would provide more protection for non-unionized workers.

“I’m glad you’re doing this article,” he said, “because I have been doing this work for 20 years, and I can assure you that most people have no idea how unfair the laws are in cases like this one. If people did know, they would demand that their legislators change the laws.

“People have the mistaken notion that you need a half-decent reason to fire an employee, but you don’t. There is no law against firing someone for something unfair or irrational. You can fire someone because you don’t like the way he parts his hair, as long as there’s no issue of race, religion, gender, age or disability discrimination. It’s so ridiculous. A big corporation can always get another employee. They are expendable.”

Janet Ginzberg, another Philadelphia attorney specializing in employment law, told the Local that anyone who is dismissed from a job should “apply for unemployment compensation, and the burden would be on the employer to prove he was fired for willful misconduct.” Anyone who needs help filing such a claim should call Philadelphia Legal Assistance at 215-981-3800.