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Some former employees turn to lawyers to pursue claims of illegal firing

Like so many others, Ben Givens and Carolyn Boswell found themselves swept into the ranks of the unemployed. But they believe they were victimized as much by their former employers as the recession.

Givens, of Riverview, said he could understand his layoff from the hard-hit maritime equipment industry. What angered him was the offer of a $1,100 severance check rather than the $10,000-plus he thought he deserved.

Boswell, who worked 37 years at Innisbrook in Palm Harbor, chalked up her job loss to a management change, until she discovered that her phased out position actually went to a younger woman at a lower salary.

In better times, workers like these might just focus on getting a fresh start. Now, with work so scarce, many turn to lawyers.

"They know they have been wronged," said Wil Florin, a Palm Harbor attorney. "They're having trouble making their mortgage payments and suddenly they are following through, making a claim."

The hard part is making the claim stick.

Many jilted workers are surprised to learn that employers don't need a good reason to fire them. Or even a bad reason. It's literally true that your boss can fire you because he's a Red Sox fan and doesn't like your Rays cap.

What companies can't do is get rid of workers for illegal reasons, such as their age, race and gender, or because they blew the whistle.

"It's not illegal to treat people badly," said Tampa attorney John Robinson, who represents employers, "as long as you treat everybody badly."

• • •

Unemployment in the Tampa Bay region is at 10.4 percent and climbing.

As job security evaporates, labor lawyers who represent plaintiffs describe a survival-of-the-fittest scenario in some workplaces, where laws meant to protect employees are treated as inconveniences and fear rules.

Florin said again and again he's seeing workers who have gotten great performance reviews for years suddenly receive a string of unfavorable write-ups before they are fired.

"I've seen write-ups for not smiling enough, not being happy enough, for being insubordinate, for not being attentive to detail, all things that are very subjective."

Plaintiff attorneys say two types of complaints seem most common.

There are cases like Boswell's, in which age discrimination is alleged. And there are cases like Givens', which involve securing severance pay, overtime or benefits owed workers who have lost jobs or fear they might.

There are more gender, race bias and workplace retaliation claims too.

"There is an opportunity," said Ryan Barack, a Clearwater plaintiff's attorney, "for bad employers to use the downturn to fire people illegally and blame it on the economy."

• • •

Boswell, 61, started work in 1971 at Innisbrook Resort and Golf Club as a purchasing clerk. She moved up to assistant financial controller, a job she held until March of last year.

Boswell said new management told her the resort's business model could no longer support her position, which would be eliminated. Shortly after, she visited the office of a co-worker roughly 10 years her junior who made about $20,000 less than Boswell's $69,000 salary.

She said she noticed that the woman had new business cards, and a new title: assistant controller. That was Boswell's job, the one management told her no longer fit the business model.

"I was pretty well devastated," Boswell said. "You cry a lot and then you get angry."

Boswell contacted Palm Harbor attorney Dave Linesch, who had her file a complaint with the Equal Employment Opportunity Commission and plans an age discrimination lawsuit.

Mark Levitt, an attorney for Innisbrook, said Boswell's case has no merit and declined to discuss specifics, citing potential litigation.

Linesch decided he'd file a lawsuit after learning that the EEOC, which helps enforce federal antidiscrimination laws, was far from completing its investigation of Boswell's case.

• • •

That may be because the recession has slammed the EEOC.

In Florida, it received 7,277 complaints in 2008, a 50 percent jump from 2005, when the economy was booming. The increase for Hernando, Pasco, Pinellas and Hillsborough counties was 80 percent, to 1,715.

Manuel Zurita directs the commission's Tampa field office, which has jurisdiction over the western half of the state. He said 75 cases at a time is a manageable load for his investigators.

These days, each works more than 150.

• • •

With job losses high, it's easy to paint employers as uncaring bad guys, said Robinson, who heads Fowler White Boggs' statewide employment law group.

Most, he said, want to do the right thing when they must shed workers. Companies calling him these days want "to do it by the book."

For many, he said, coming to him is a last step to prevent bankruptcy.

To stave off legal challenges, Robinson urges employers to make sure the makeup of their work force in terms of age, gender and race is similar before and after a layoff.

"I do use informally what I call the popcorn test," he said. "If you have a reduction in force and it's all white people, it's a problem; if it's all white-haired people, it's a problem."

• • •

Givens, the Riverview man seeking a severance, isn't a discrimination victim. Like many others seeking legal help, he just wants what he thinks his former employer owes him.

"Fair is fair and what they are trying to do isn't fair," Givens said.

For nine years, Givens worked as a sales manager for Lewmar USA, a marine equipment supplier with headquarters in Connecticut.

Lewmar laid him off in February. He said the company's policy manual calls for him to get one week's salary for each year he worked and unused vacation.

Givens, 38, was offered roughly a 10th of what he thinks is due him.

"They got me on the conference call and basically said, 'We're letting you go,'" he said. "'Here's what we are supposed to owe you and here's what we are going to pay you.' "

Lewmar USA chief operating officer Gregory Smith replied to a reporter's phone call with an e-mail, writing "… the company has done nothing wrong with reference to Mr. Givens' employment."

Barack, who is representing Givens, said he's trying to get Lewmar to consider a settlement, but the company has been unresponsive.

He figures he and his client may be heading to court.

Will Van Sant can be reached at vansant@sptimes.com or 727-445-4166.

Good things may come from job loss

A job loss can be as stressful as the death of a loved one or divorce, and labor lawyers who represent workers often find themselves in the role of counselor, serving as sounding boards and career coaches.

Orlando attorney Jill Schwartz, legal education chair of the Florida Bar Association's labor and employment law section, said if there is a positive side to what her clients are experiencing, it's that job loss can be liberating.

Some have committed to exercise programs like never before, some have begun coaching their kids' athletic teams, others have been able to finally spend time with ill parents or pursue a personal passion like writing.

"We rarely get a time out in life," Schwartz said. "I know this is a forced time out, but I am seeing people do good things with it."

Some former employees turn to lawyers to pursue claims of illegal firing 05/17/09 [Last modified: Thursday, May 21, 2009 3:16pm]
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