Smart-mouthed workers may have the wits you need to give your organization a creative edge, yet have personalities that are utterly destructive to the work environment. How can employers handle this "special" kind of employee--the kind who meets or exceeds performance and attendance standards but whose personality is positively toxic? You know the profile--someone smart and able, but who regularly engages in whining, belly-aching, gossip-mongering, back-stabbing, or other aggressive or passive-aggressive pain-in-the-neck behavior.

What does an employer do when an employee behaves in ways that lower morale, productivity and loyalty, yet carefully avoids going too far, such as engaging in overt threats or acts of violence; sexual, racial or other unlawful harassment; or open and direct insubordination? Litigation risks often exist in confronting these troublemakers.

Such risks typically arise when:

* The jerk is in a legally protected class (such as race, sex, national origin, age) and claims discrimination.

* The jerk attributes improper behavior to a medical condition and asserts disability legal protection.

* He or she is covered by a collective bargaining agreement (CBA).

* The jerk wraps himself in the mantle of whistle-blower and alleges unlawful retaliation.

First of all, breathe. Then, roll up your sleeves and prepare for something that may be brand new to a troublemaker used to steamrolling over others--a perfectly civil fight. How you react should send the message loud and clear to the work jerk that behaviors, not just work output, count.

Quick fixes are seldom easy, and mistakes can be costly. Jerry Huffman, a New Orleans-based employment lawyer and a fellow member of the Management & Labor Employment Roundtable (MLER), once defended an employer in an age discrimination lawsuit in the Pacific Northwest. For years, the plaintiff had performed well statistically while she maintained a pattern of resisting authority, using foul language--even in front of customers--and directing insults at co-workers, especially younger ones.

The plaintiff eventually got a new, younger supervisor, who decided she was not going to put up with this behavior and quickly whipped together a progressive disciplinary paper trail that led to the older worker's termination within two months. The new supervisor jumped on incidents that, considering the employee's behavior over the years, were fairly tame, such as use of the word "damn." Ignoring Jack Benny's observation that "timing is everything," management picked the employee's birthday as her discharge date--without ever consulting the HR department. After the case was over, one juror remarked that although he and other jurors disliked the plaintiff, the jury could not stomach what it regarded as the employer's overly hasty, slipshod and insensitive manner of terminating the plaintiff. The jury awarded her more than $100,000.

Work Jerks and Labor Law

While the case illustrates the dangers of disciplining a workplace jerk who can attack management's actions based on protected class differences, a different set of problems arises when disciplining employees covered by CBAs.

Ric Alli, my colleague at Bullard Smith Jernstedt Wilson in Portland, Ore., and a traditional labor attorney, has defended a number of jerk terminations in labor arbitrations. Most often, the disciplinary hook is a provision in the CBA that allows employers to terminate employees for insubordination. However, Alli cautions that employers should not think this gives them a lot of latitude. Management must make sure it has all of its ducks in a row before potentially subjecting a termination decision to an arbitrator's scrutiny.

In one case that Alli handled, a hospital hired a licensed registered nurse (RN) for a position as unit secretary, which involved various coordinating activities but did not include actual nursing or direct patient care. The RN evidently felt her talents were underutilized and became a meddling, disruptive sore point that affected her department's morale and effectiveness.

She expressed her displeasure and contempt for others in various ways, such as operating noisy equipment at times when it disrupted other nurses' work. During group reports, she had a habit of dumping paper clips and pens onto a table and rearranging them. She frequently interrupted others to interpose viewpoints that strayed far afield from her own job responsibilities. Although she never openly refused to comply with a direct order, she used instructions or directives as starting points to complain and assert that she knew better.

After several months of this behavior and after informal counseling failed to help, management gave her a written notice specifically identifying the inappropriate behaviors in which she had engaged and directing her to cease and desist from them in the future. Two months later, after she reverted to problematic behavior, she received a formal written warning, placing her on 90 days' probation.