Donald Trump fired James Comey, Jr. as the FBI Director with a letter and memorandum of the rational for the termination (if you haven’t seen them you can take a peek here.) While this act is taken at the highest levels of government related issues of enormous public interest, it is substantively little different than decisions to terminate employees that private employers make every day. What lessons can this event teach employers about terminations? How do employers terminate employees in such a way as to limit potential legal liability?
The general best practices include
- Have provable and documented evidence of the infraction(s) resulting in termination
- Complete adequate investigation of those infractions
- Follow the policies provided in the employer’s handbook
- Provide consistent feedback on issues of concern
- Act swiftly
The reason each of these best practices are important is because in most cases the best defense is simple – We had a legitimate business reason for terminating the employee. In response, the employee must then argue that the legitimate reason is pretextual (or made up) and the real reason is an illegal one. Each of these best practices are designed to protect the stated reason for termination from an attack that it is pretextual and therefore increase an employer’s risk of liability.
In the case of Comey, President Trump is at significant risk that his stated reason may lack credibility and provides a good example for employers on what not to do and why following your best practices is so critical.
Donald Trump Has Not Been Consistent
Throughout the campaign and after his election, Trump praised James Comey and the FBI.
Complicating matters for Trump is that the very conduct that he cited to support his termination of Comey (his public statements regarding his investigation of Secretary Clinton’s emails during an election cycle) was the very same conduct he praised numerous times before.
Employer Take Away: If you are going to discipline an employee, you need to ensure that you have been unwavering in your critique of the offending conduct. This is particularly true if you ultimately rely on it when making a decision to terminate.
The Termination Decision was Made Before the Investigation Was Completed
Even before Mr. Trump took office, the Justice Department’s inspector general announced it was conducting an investigation into the conduct of Mr. Comey and the way he handled the investigation of Secretary Clinton’s emails. This investigation of Mr. Comey’s conduct was largely praised by everyone in Washington.
Nonetheless, Trump made the decision to terminate Comey without the investigation’s findings to support his decision.
Employer’s Take Away: A proper investigation can often be the best line of defense and provide adequate cover and justification for a disciplinary decision.
Act Swiftly
If you are going to terminate an employee for conduct, you need to ensure you are doing it in a timely and reasonable fashion. In Mr. Comey’s case, the conduct at issue occurred last June and November. Relying on it six months later leaves open the question Why Now?
Waiting too long creates the implication that there was some other motivating factor. As a result, it creates an opening to argue that some other reason (something more recent) was the driving force behind the decision to terminate. In this case, Mr. Comey’s investigations into Mr. Trump’s ties to Russia.
Employer’s Take Away: Acting timely and appropriately supports the disciplinary decision. This best practice is aligned with an employer’s consistent application of it disciplinary procedures.
Do not Ask to Create the Documented Evidence
There are reports (who knows if they are accurate) that President Trump asked the Department of Justice to “justify” Mr. Comey’s termination. That puts into question the authenticity of the justification and proof supporting it.
Employer’s Take Away: Follow the disciplinary procedures you have in place and rely on the process. Trying to create evidence outside of your normal procedures creates unnecessary risk. Utilize the investigation process to create the supporting evidence do not manufacture it.
Keep Your Termination Letter Short and Sweet
President Trump’s termination letter includes a reference to the FBI’s ongoing investigation of the most recent election. It has no relationship to the stated reasons for the termination and only creates additional questions and concerns about the legitimacy of the reason for terminating Mr. Comey.
Employer’s Take Away: If you document the reasons for the terminating an employer it should be laser focused. It should be concise and to the point. Any inconsistency creates an opening for the employee to argue that the stated reason is pretextual for something illegal.
The employment attorneys at Maduff & Maduff have been specializing in employment law and civil rights cases for more than 20 years. If you are experiencing an employment or employee issue, contact us immediately to see how we can help to resolve your employment law needs today.