In May President Trump fired then FBI Director James Comey. The firing created a political firestorm. In June Mr. Comey testified before Congress regarding the FBI’s investigation of whether the President’s campaign colluded with Russia to rig or alter the results of the presidential election. Regardless of your politics the Comey firing provides several lessons for employers on “what not to do” when firing an employee.
I. IF YOU HAVE A REASON TO FIRE ACT ON IT SOONER RATHER THAN LATER.
Some reports are that the President had decided to fire Mr. Comey in January shortly after the President took office. If that is accurate the President should have fired Comey then. By waiting until May the termination looks highly questionable, and potentially illegal, because Comey got fired after telling the DOJ that he needed more money to expand the Russia investigation and after the U.S. Attorney issues a grand jury subpoena in its probe of Michael Flynn, President Trump’s former National Security Advisor. By waiting the President turned what would have been a clean termination into one that is extremely messy.
If you have a valid reason to terminate act on it then. By waiting, you allow the circumstances to change and a termination which might have been clean could become clouded by something like a workers’ compensation claim, an EEOC Charge, or an internal complaint of discrimination or harassment that occurs during the delay.
II. DON’T HAVE SHIFTING EXPLANATIONS FOR THE DECISION.
The administration has offered various reasons for Mr. Comey’s termination. These have ranged from a statement that the President merely relied on a recommendation from the Attorney General, that Mr. Comey was terminated because he handled the Hillary Clinton email situation poorly, that Mr. Comey was simply not doing a good job, that Mr. Comey lost respect from the FBI rank and file and that the FBI’s office was in turmoil.
When differing explanations are given for the reason it is easy for the employee to argue that the reasons are a pretext for discrimination, retaliation or some other illegal motive. That means the case is most likely headed to a jury. Then it is for the jury to decide the reason for the termination, and it may decide that the reason was illegal.
III. IF YOU ARE GOING TO WRITE IT, GET IT RIGHT.
In Tennessee and in most states you are not required to provide the employee with a termination letter. Tennessee law does require a separation notice for unemployment purposes, but those notices are bare bones and there is no penalty for not providing one.
President Trump’s termination letter to Mr. Comey stated that he relied on the recommendation of the Attorney General and the Deputy Attorney General to make his decision. But the President subsequently contradicted the statement in the letter in a subsequent television interview. This contradiction makes the letter look false and offers further support for an argument of pretext.
A termination letter can go a long way to supporting your defense against any claims by the employee. But if you choose to prepare such a letter, do it right.
Below I have listed other issues to consider before making a termination decision.
Does the employee fall within a protected class (age, race, sex, religion, national origin, color, creed, disability/handicap, pregnancy)?
Are there any other red flags (whistleblower, workers’ compensation claim, jury duty, witness/some form of testimony, illness/sickness, medical/FMLA leave)?
Has a thorough and complete investigation been conducted?
Has the employee been disciplined for the conduct previously?
Are the reasons for the termination well documented?
Is the reason for the termination consistent with company policy, as stated in a handbook, employee manual or in practice?
Have other employees been treated differently for the same or similar conduct?
Are the reasons for the termination supported by the facts? In other words, if we have to justify it in court, can we do so?
What is the employee’s length of service with the company?
What is the employee’s overall performance record with the company?
Is the decision maker objective?
Is termination the appropriate action or would some lesser form of discipline suffice?
Are there other extenuating circumstances (it’s the Christmas season; it’s the employee’s birthday; the employee was recently given a commendation or bonus for good performance)?
This list of issues is a guideline and is not exhaustive. Remember, when in doubt, call your attorney before making the decision