Short answer: Get your story straight and don’t change your answer. But there’s more.
Well, this news cycle has been fun. Comey’s termination so far is an act in three parts, but as with the news these days, this play is still being written.
Act I. The First Act was the termination letter from the President with the reason for the decision that Comey was “not able to effectively lead the bureau,” a belief the President came to based upon the recommendation of the Department of Justice. Deputy AG Rod Rosenstein prepared a memo explaining that Comey’s publicizing the Clinton email investigations during the 2016 election fell below the Bureau’s standards, and the white house elaborated that Comey had lost the confidence of the Bureau (that was false, by the way). Considering Director Comey’s ten-year term that was to expire in 2023(?), even though the Director serves at the pleasure of the President, he really did need a reason to fire him. With the investigation of the Trump campaign’s potential collusion with the Russians meddling into the 2016 election intensifying, that seems prudent. In employment law terms, this was a “for cause termination.”
Act II. The Second Act was acting Director McCabe’s testimony on the Hill contradicting the white house and reasserting in the strongest possible terms both his and the Bureau’s respect and confidence in Comey.
Act III. The Third Act was the President’s interview with Lester Holt, during which he completely contradicts the First and Second Acts and says that he had already made the decision to terminate the “showboat” and “grandstander” Comey. Trump relied on no one or their recommendations. And he had the Russian investigation on his mind.
Okay, this is a textbook example how not to terminate someone, especially when you may need to defend the decision later in a lawsuit. Here’s why and it’s not very complicated. When an employee you have had to terminate later challenges that decision, say by claiming that it was based on race, or gender (or to obstruct a federal investigation into the meddling of the bedrock of our democracy) what you are permitted to defend yourself with in court is pretty straightforward: what did you tell the employee at the time of termination? Well, you can justify that reason with evidence, but you can’t get cute and get away with it.
Clients often ask me whether it is safer not to tell the employee any reason, because South Carolina is an “at-will employment” state, or an “employment at-will” state. Well, no good deed goes unpunished. Don’t be tempted to spare the employee’s feelings and don’t be anything other than honest. If you aren’t very clear about the actual reason supporting the termination when it happens, you run the risk of having a court instruct the jury at trial that they can infer you terminated the employee for an unlawful reason. I’m simplifying things here quite a bit, but that’s the gist of it.
Comey is never going to challenge his termination the way a highly-paid executive or someone with an executive employment contract would. But imagine if he did. His announcement in the summer that he was reopening the investigation into the Clinton emails was lauded by the Trump campaign as courageous to crowds chanting “lock her up.” And his testimony before Congress was hardly grandstanding; he was called there as an exercise of the separation of powers and he was obligated to appear. Finally, the Lester Holt interview made liars out of the Vice President, the Deputy Press Secretary, the Deputy AG, and Kellye-Anne Conway. See the problem? Our jury could be permitted to infer that Director Comey was unfairly terminated. “Bad. Very Bad.”
The Basics: Most terminations are not going to be like Comey’s, who received a letter when he was away from his office and saw the news coverage of his dismissal on a television screen while he was giving a speech at a recruitment function for the Bureau. In general, terminations should follow a protocol:
- All supervisors and managers must be on the “same page” and in full agreement about the reasons that support the termination and the conduct and performance metrics that back-up the reason. Waiting until a dispute arises is already too late.
- These are difficult meetings that can become emotionally charged. Have a witness attend the meeting. Consider a script, and even if you don’t read verbatim from it, spend time with it so you know what you will say.
- Remember, the meeting with the employee to inform him or her of the termination decision is not a debate, so unless it appears the employee is prepared to explain anything that isn’t already well understood, I don’t recommend inviting feedback.
- The employee does not have to agree with the decision, he or she simply must understand its reason. Putting the decision in writing with a signature line is often a good idea, but employees often refuse to sign fearing it constitutes an agreement. This document is still evidence of what was conveyed to the employee if a dispute arises about what the reason was.
- If benefits continuation issues will be dealt with in later correspondence, say so.
- Don’t forget to have already coordinated with Information Technology and Security for management of password access to systems and facilities and to arrange for the collection of personal items and departing the property.
- If the employee is subject to any noncompete agreements, consider correspondence enclosing those agreements and reminding the employee of those obligations.
Remember, getting the basics right when terminating an employee goes a long way to ensuring that any dispute that arises is in a solid, defendable position. Ignoring them is just too costly.