Amber Gorby ordered the beach towels, stuffed animals, smartphone chargers and the other doodads found by the cash registers at HomeTown Pharmacy’s three dozen stores. When Gov. Gretchen Whitmer ordered businesses to “suspend in-person operations that are not essential to sustain or protect life” to help fight the spread of the coronavirus, Gorby figured she could work from home.
She stated her case at a staff meeting at HomeTown PHAR headquarters about an hour after the governor issued her “stay home, stay safe” order March 23.
“It just didn’t go over well,” said Gorby, who was retail sales manager at the time.
By 3:30 p.m., she was headed home, but not with a laptop. She had a termination letter. Gorby is at the forefront of a debate in Michigan about which workers are essential and which should be allowed to work from home. She took her case to the state Occupational Safety and Health Administration, and her attorney sued HomeTown Pharmacy, bringing one of the first cases that could help define the legal limits of Whitmer’s executive orders.
Gorby’s boss said Whitmer’s executive order had nothing to do with her firing.
In the letter Gorby got on her way out the door, HomeTown President Jonathan Grice wrote, in part, “Today was another example of our differences becoming something that spills over and affects the greater team. The disagreement in the meeting today showed that you are not willing to exemplify the values that HomeTown Pharmacy is committing to hold its teammates to.”
Gorby’s lawsuit claims that her spotless service record over nearly 17 years with the Newaygo-based pharmacy chain was not enough to overcome her disagreement with Grice over whether Whitmer’s order applied to workers at HomeTown’s headquarters.
“This comes down to values to me. The company is not following the guidelines,” Gorby said. “I spoke up, and I got fired.”
Grice, whose family owns the chain of 36 stores that stretches from Sutton’s Bay in northwestern Michigan to Monroe in southeastern Michigan, said, “The conditions around her termination have nothing to do with the coronavirus crisis.”
He declined to elaborate.
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By the time Whitmer issued her sweeping decree that closed businesses across the state, ordered Michiganders to stay at home and keep 6 feet away from each other when they go out, the number of known COVID-19 cases in the state had gone from zero to more than a thousand in less than two weeks.
“This is an unprecedented crisis that requires all of us working together to protect our families and our communities,” the governor said. “The most effective way to slow down the virus is to stay home.”
Executive Order 2020-21 forbids businesses from requiring workers to leave their home unless “those workers are necessary to sustain or protect life or to conduct minimum basic operations.”
Among the exceptions Whitmer cited were health care, law enforcement and grocery store workers.
Gorby figured she didn’t fall into any of those categories. Her duties at HomeTown included ordering seasonal goods and other items customers might purchase on impulse before they left the store. She oversaw the warehousing and delivery of those items to stores and negotiated with vendors. Her lawsuit says she had “no role in the ordering and inventory of pharmaceuticals.” Gorby said she didn’t even handle greeting cards or over-the-counter medications.
Her lawsuit says she had argued during the week before Whitmer issued her order that employees at HomeTown’s headquarters – especially workers with child care and health issues – should be allowed to work from home. She said HomeTown’s IT department helped set some employees up with laptops, but Grice put a stop to it.
The lawsuit claims Grice told workers at headquarters during a brief meeting March 20 that it would be business as usual.
After Whitmer’s order came down on the morning of March 23, Gorby said she again urged Grice to let some of HomeTown’s headquarters employees work from home. This time, she was armed with Whitmer’s order. The first of its 14 points says, “This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.”
At a midday staff meeting, Gorby said, she specifically cited points in the governor’s order that instruct employers to restrict “the number of workers present on premises to no more than is strictly necessary to perform the business or operations critical to infrastructure functions” and to promote “remote work to the fullest extent possible.”
Gorby said Grice bristled at being challenged and insisted that all headquarters employees were essential to support HomeTown’s stores. She said Grice told headquarters and warehouse employees who were not comfortable coming to work that they could apply for unemployment and resume their jobs after the coronavirus crisis was over.
Gorby said she asserted that employees with children at home – Whitmer had ordered the closure of public and private schools – could not work full-time from the office.
“At this time, the meeting wrapped up very awkwardly and everyone went their own ways,” she wrote in a narrative of the meeting.
Grice said, “That’s untrue. But I’m not going to comment on that.”
He declined to share his recollection of what happened that day.
Second – and final – meeting
At 3 p.m., Gorby said, Grice summoned her to a conference room. This time, there were just three participants in the meeting: Gorby, Grice and Anna Reed, HomeTown’s Human Resources director.
Gorby’s lawsuit alleges that Grice told her their differences were the final straw in their occasionally tumultuous work relationship.
“Over the last couple of years, we’ve had our differing opinions,” the termination letter says. “Many times, I have appreciated your candor. At other times, it has eroded our relationship. Unfortunately, the actions we would have needed to take to repair and build trust have not been taken.”
Gorby said she was offered a severance package that included eight weeks pay and a bonus she was due based on the previous year’s sales. But there was a deal-breaker: a nondisclosure agreement that would prohibit her from discussing her departure.
“I knew it was hush money,” she said. “I’m not taking hush money.”
Her termination letter concludes: “It is best that we part ways, and allow you to pursue your career goals elsewhere. We appreciate your time at HomeTown, and truly wish the best for you and your family.”
New legal ground
In the month since she lost her job, Gorby has been home-schooling her teenage daughter and son, as well as cooking, organizing her home and hiking with her family.
“I’ve told my kids we are all going to work on challenging our minds and improving ourselves and strengthening family bonds during this time at home,” she said.
Gorby filed a discrimination complaint with MIOSHA on March 26. The next day, she hired a labor attorney.
Deborah Gordon, one of the top labor attorneys in metro Detroit, said Gorby’s situation appears to fall under public policy tort.
“I believe executive orders have the force of law,” Gordon said. “It’s a new way of looking at things we’ve seen in the past, where employers have tried to retaliate against employees for refusing to violate the law.”
State officials say employees required to work in places they do not feel are safe should file a complaint with the Michigan Occupational Safety and Health Administration (MIOSHA).
Grice did not respond to a request for a follow-up interview. HomeTown’s attorney, David Gass, also did not respond to requests for an interview.
In a letter to Gorby on April 1, Gass told her not to contact her former colleagues.
“This is particularly inappropriate during a time of national crisis, where pharmacies are a critical infrastructure business that must continue to operate in order to serve the public health,” the letter says. “HomeTown intends to meet with its employees to answer questions concerning the current health crisis, including questions regarding the true reasons for your termination.”
The letter did not provide specifics.
Gorby said her attorney, Jack Schulz, responded with a letter accusing HomeTown of wrongful termination and seeking reinstatement, back pay and the bonus she was due based on 2019 sales. On April 15, Schulz filed a wrongful termination lawsuit on Gorby’s behalf in Newaygo County Circuit Court.
“I wish it was over. It’s frustrating. I think back … had I not said anything, I know I wouldn’t be fired,” Gorby said. “I don’t like it when profits and money come before people.”
“This is not what I wanted,” she said. “This is about taking care of people.”
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