No Slack for Slackers

Stand up to underperforming workers despite threats of retaliation claims.

Are your waste company's hiring, transfer, demotion and firing policies paralyzed by fear? Are you condoning bad performance, bad attitudes and bad behavior by employees because you're worried about being sued for retaliation? Join the crowd.

Lawyers who represent employers are strongly encouraging them to stand up to lousy and troublesome workers, although they concede that companies could easily face retaliation lawsuits, which are on the rise. According to statistics compiled by the Equal Employment Opportunity Commission (EEOC), 26,663 retaliation lawsuits were filed in 2007, representing nearly a 20 percent jump from 2006 and about double the number of cases EEOC logged in 1992.

"While retaliation claims continue to be the claim du jour, employers must still be able to manage their workforce and … consistently apply their employment policies, even to those who complain of discrimination," Philadelphia labor attorney Sara Begley told The National Law Journal.

The key to successfully defending retaliation lawsuits is documenting the employee's performance problems or on-the-job misbehavior, legal experts say. After a discrimination complaint is filed, the all-too-typical response by a company's human resource department is to say and do nothing that might trigger a retaliation claim from the employee. As a result, until the discrimination matter is resolved, it's as if the worker has a "get-out-of-jail-free" card for just about any workplace misconduct.

Still, employers have good reason to tread softly because retaliation lawsuits can be costly. Take the case of a Cuyahoga County, Ohio, jury that awarded the largest verdict in Ohio history — $46.6 million to a former waste company manager who was fired because he refused to discharge three employees who were over age 60. He felt the company was engaging in age discrimination.

Ronald Luri, 55, alleged that Republic Services Inc. retaliated against him for engaging in a "protected activity" — that is, honoring the age discrimination law — and interfered with his efforts to find another job in the Cleveland area. The jury award represented $3.5 million for lost wages as the general manager of the company's Cleveland division and a whopping $43.1 million in punitive damages for how Republic treated him. The jury also found the company liable for Luri's attorney's fees.

After the trial, jurors said the key evidence was an e-mail written by Luri's boss, Jim Bowen. Luri's attorneys presented testimony from a computer expert who found that Bowen had post-dated a memo and added two paragraphs critical of Luri's job performance — two weeks after Luri filed the lawsuit.

For its part, Republic expressed shock at the verdict, denied the allegations and promised an appeal. Luri was fired for "inadequate performance and failure to follow the directives of his superiors," according to court documents filed by company lawyers.

"This case is far from over," Republic spokesman Will Flower told the Cleveland Plain Dealer.

Barry Shanoff
Legal Editor
Rockville, Md.