As the impact of FBI Director James Comey’s surprise dismissal continues to make headlines, the controversy now facing the White House is a good reminder for HR professionals (and executives who may be called to wear an “HR hat”) of the following two guiding posts when dealing with employees and employment decisions:
Tip # 1: Timing is Important – Often, It is Everything
Most U.S. employees are employed at will. Technically, this means that employers, like employees, can end the employment relationship at any time, for any reason (or no reason at all) and with or without notice. In reality, most individuals are not completely irrational and act for a reason. At the same time, employment discrimination laws and other laws, such as the federal Family and Medical Leave Act, include anti-retaliation protections for individuals who exercise their rights under the statutes.
With this in mind, the timing of Comey’s termination has contributed to the controversy. The initial explanation offered was that President Trump was acting on the recommendations of Deputy Attorney General Rod Rosenstein, who had submitted a report outlining mistakes that he believed Director Comey had made in handling the FBI’s investigation into Secretary Clinton’s emails. However, as the media quickly pointed out, during the election, then candidate Trump had actually praised Director Comey for his handling of the Clinton investigation.
As at least one White House advisor has stated, President Trump has the authority to fire – and could havefired – Director Comey at any time since taking office. The response from the President’s critics has been that even though President Trump could have fired Director Comey as early as January, he didn’t. Rather, the termination came months later, at a time during which the FBI is reportedly ramping up its investigation of the connections between Trump associates and Russia.
The rise of retaliation claims over the past 10 years makes it critical for employers to consider the timing of and circumstances surrounding a planned employment action before proceeding. Employers who want to discipline or terminate a poor performer often wait too long before acting (or have poor documentation of the performance issues). If such an employee then engages in protected activity, for example, the employee requests a reasonable accommodation or goes on a pregnancy leave, the employer may need to postpone taking the desired action, unless it has good documentation establishing that the decision had been made beforehand or the employer can otherwise show it would have made the same decision.
Tip # 2: A Shifting Explanation Can – and Often Will – Be Used Against You
The White House initially explained that President Trump’s decision to oust Director Comey was based on the memo from Deputy Attorney General Rod Rosenstein and the recommendation of Attorney General Jeff Sessions. A few days later, the President stated on national television that he was going to fire Director Comey anyway, regardless of those recommendations.
In the nonpolitical context, a shifting explanation for an employment decision may be sufficient evidence that the given reason is pretextual to defeat an employer’s motion for summary judgment in a discrimination case. For example, in Velez v. Thermo King de Puerto Rico, Inc., an age discrimination case, the First Circuit found sufficient evidence of pretext when, among other things, Thermo King terminated Velez without explanation, then provided one reason after Velez filed a complaint with the local anti-discrimination agency and later added another explanation after he filed a case in court. Likewise, in reversing the lower court’s grant of summary judgment on the discrimination claim, the Massachusetts Appeals Court in Bulwer v. Mount Auburn Hospital relied in part on the hospital’s apparent shifting explanations for terminating the first-year resident (the decision was later upheld by the Supreme Judicial Court).
I routinely advise clients who are planning an employment decision, to carefully think about the reason(s) for the decision, and once they have documented the reason and shared it with the employee, to stick with it. This will be the official position moving forward, if the employee files a claim alleging discrimination or retaliation. Hopefully the employer has good documentation consistent with its position.
I also advise clients against the urge to terminate employees with a platitude such as “your services are no longer required.” Since the individual’s services were required yesterday, what changed in one day? While termination meetings are difficult, I believe that providing little or no explanation at all is more likely to generate push back or raise questions about timing (see above) and that a brief, factual explanation grounded in truth is generally preferable.
The current controversy embroiling the White House is unlikely to go away soon. Unfortunately, it is one that unwary employers will likely face at some point. Employers would be well advised to make sure that their employment decisions are timely and backed by contemporaneous documentation, should they ever have to explain the rationale of that decision to a tribunal.
Employers should also meticulously plan employee terminations and consult with their HR representative and legal counsel, rather than rush forward without having considered all of the ramifications or a carefully crafted message. In the sage words of a respected attorney I once worked with, “Act in haste, repent at leisure.” This is especially true when dealing with thorny employment issues.