Jun 5, 2017

High-Profile Terminations: The Right Way And The Wrong Way To Do It

High-Profile Terminations: The Right Way And The Wrong Way To Do It


Here are four lessons for employers from the Jim Comey firing fiasco.

An employer can be absolutely certain someone’s been fired the “wrong” way if it involves someone from PR hiding in a bush. But in addition to this obvious red flag, there are many other ways to know a termination has gone wrong.

An employee can be terminated for no reason, a good reason, a bad reason, really any reason. A termination is only a bad idea from an employment lawyer’s perspective if the reason is against the law. Few terminations are more of a bad idea than a termination because of whistleblower concerns. President Donald Trump’s decision to terminate James Comey, the former head of the FBI, because, according to the White House’s press release, the FBI was not investigating the White House, seems like a terrible idea. And with this termination, President Trump gets to add his name to a list that includes Richard Nixon, and he is definitely vying for the role of the worst boss among modern presidents.

Political intrigue aside, Comey’s termination is a big story for an employment lawyer because it was so poorly done. This is how high-profile termination litigation is born: doing terminations in a way that is inappropriate, and disrespectful. I feel strongly that no matter how an employer feels about an employee, the employee is still deserving of being treated with respect and decency. Furthermore, the inability to do so says more about that employer and their culture than the employee, regardless of the reason for the termination.

Why A Bad Termination Is Bad For An Employer

I hope we can all agree that it is probably difficult to work for someone like Trump. He was the star of a show with a tag line of “you’re fired,” and it appears he carried this tagline into real life. He engages in blatant nepotism. He has all the hallmarks of a horrible boss. And more.

Trump likely doesn’t care about his reputation very much right now, but in general, high-profile bad terminations are terrible for a company’s PR. Take the backlash against AOL’s then-CEO, Tim Armstrong, when he fired a worker on a conference call attended by over a thousand people. Then ask yourself, when is the last time you used AOL? Terminations can become scandals overnight with enough publicity. And they can, for a troubled brand, be an event that cements their demise.

Oddly, I’ve seen bosses of questionable value be great at terminations. Because the skills you need to be a great boss and the skills you need to treat someone well at the time of termination don’t always overlap in the ways you would think. Ultimately, terminating someone the right way is about treating them and the company with respect. To do so, what you really need is to be a decent human being. You can be a terrible boss (due to incompetence) and a good person at the same time.

No, the issues with Comey’s termination are because Comey’s firing involved doing everything the wrong way. Trump took many different termination fails and rolled them all into one. Here’s what not to do, because it’s what Trump did:

1. Don’t fire an employee in a disrespectful way. Don’t fire people with witnesses. Don’t fire people and let them be the last one to know. Don’t fire people virtually. Don’t fire people after a disagreement. These should be common sense, but the story is that Comey found out he was fired by seeing it on TV. I’ve heard of email terminations before. I’ve heard of third-party terminations. I’ve heard of terminations referred to as “graduation.” I think all of these scenarios are a bad idea, and bad for company morale. Just be a decent human being, get the person face to face, and tell them what’s going on. Odds are, it won’t come as a complete shock, and you can take that time to help the person ease the transition from your organization to the next. In many industries, it’s a small world, and you may see this person again. Don’t make a lifelong enemy for no reason.

2. Don’t fire an employee who likely is a whistleblower. People don’t like whistleblowers because whistleblowers can make people go to jail. There are also huge incentives, cash incentives, to be whistleblowers, which make companies uncomfortable. If any of the things we have heard are true, Comey would be a whistleblower of the highest order. Right now, the biggest story is a Russia scandal, but the truth is it could be anything. I’m a huge believer of where there’s smoke, there’s fire. So I say investigate away! Obviously Trump doesn’t agree. But the average employer can’t afford to be so cavalier. If you know an employee may be part of an investigation involving the company, do not fire them. I repeat, do not fire them.

3. Don’t fire an employee for illegal reasons (like because they are a whistleblower). One indicator of some whistleblower-type issues at the crux of the decision to fire Comey is the repeated assertion by Trump that he was not under investigation by Comey. We are hearing about repeated calls made by the White House in relation to the Russia investigation, and many other issues that are a red flag. Nothing makes for a more expensive settlement than a timing issue with termination, and a decision that seems motivated by an employee complaint or involvement in an investigation. You shouldn’t fire someone right after they complain about you to you, or any third party. You shouldn’t terminate someone because you think they are part of an investigation into the company. That is a guaranteed way to wind up paying a six-figure settlement.

4. Don’t change your story after you fire a high-profile (or any) employee. When Trump fired Comey, he provided the media with copies of letters from other agencies as support for his decision to terminate Comey. But the next day, Trump began telling people that the real reason he made the decision was something else. Something worse. A famous adage is: dance with the one who brung you. Also, don’t switch horses midstream. An employer should NEVER change their story about a termination, particularly one where there is some real risk of a lawsuit.

An example of this that isn’t necessarily ripped from the headlines is Thurman v. Yellow Freight Systems. In this case, an African-American employee sued because the defendant refused to hire him as a full-time employee. He stated that he was not hired, but five white employees were hired. The company claimed only four had been hired, and all four had been better workers than the plaintiff (who was a “casual” employee). Well, it turned out the company had hired five employees, but one was terrible and had been fired immediately. They switched horses midstream. Plaintiff was given a six-figure judgment (and things got even worse on appeal). Fire an employee for a reason that makes business sense, and stick to that reason.

I doubt Comey will sue Trump, no matter what Trump says about him in the coming days and weeks. And it is likely Comey will make far more at his next gig, effectively negating any real damages. He is the former FBI director, had a lot of varied experience before taking the FBI job, and according to the current acting director, remains well-liked within the organization. He also knows how things work there, and he would be invaluable to have as an attorney should you find yourself in an investigation by the FBI. Comey will be fine.

But if you ever find yourself in a similar position, without options for a soft landing place, find a good experienced employment attorney to help you negotiate your options. And if you are an employer who does all these things, pull out your checkbook because this one is going to cost you.

Beth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

Original source: http://abovethelaw.com/2017/05/high-profile-terminations-the-right-way-and-the-wrong-way-to-do-it/

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