Some employment lawyers couldn’t help themselves last week after President Trump fired FBI director James Comey in a political incident that quickly spun out of control: They found lessons for their corporate clients from the high-profile inside-the-Beltway affair.
“I wanted to go on CNN or MSNBC,there was so much to say,” laughed Ellen R. Storch, a partner with Kaufman Dolowich Voluck LLP in Woodbury, N.Y.
The comparison to corporate HR is plausible, Storch notes, since any large company may have regional or divisional leaders whom the CEO might target for”showboating,” to use the president’s term about Comey.
But any CEO who fired a high-profile subordinate as Trump fired Comey would be exposing the company to legal risks, says Storch, whose practice includes both litigation and counseling employers on best practices.
“After doing this for 20 years, II firmly believe the optics” of a termination are critical,Storch says — is there a clearly legitimate business reason for termination? The tone and content of public messages about the firing also matters, Storch says.To start with, a high-profile employee likely has a big ego that must be managed, she says. If they are considering legal action over their termination, that employeewill be balancing pragmatic considerations — possible harm to their career for battling an employer in court — with anger stemming from damage to that big ego. So how an employer handles the termination can influence the employee’s willingness to sue, Storch says.
How a firing plays out also will affect employees who remain and how they feel about their employer, she notes. Much of this depends on what leaders say about the termination, Storch says. “You can manage a separation in a way so it sends a message.”
Ideally that message is “We care about you guys, but we need to go in a different direction.”So wWhat was wrong with how Comey’s firing was handled?
“Just about everything,”Storch says. A corporate employer who issued as many conflicting statements as did the White House in the hours after Comey was fired would have undercut its legal defenses, Storch says. In such a situation, “the employer has unnecessarily created a credibility issue for themselves,” she says.