What Would Clooney Think?
What Would Clooney Think?

Your employee that you are firing should not hear about his firing from a television report first.

I suppose that would seem an obvious rule to follow. But apparently not.

Let me back up.

Earlier today, the President fired FBI Director James Comey — an act that really is more for politics blogs, than an employment law blog.

But as the details of the firing trickled out in the evening, one detail jumped out at me — James Comey found out he was fired through the television.

From The New York Times:

Mr. Comey was addressing a group of F.B.I. employees in Los Angeles when a television in the background flashed the news that he had been fired.

In response, Mr. Comey laughed, saying he thought it was a fairly funny prank.

Then his staff started scurrying around in the background and told Mr. Comey that he should step into a nearby office.

Now, I’m sure there are many who don’t feel sorry for Mr. Comey; but still, where’s the humanity in firing someone via television?

Of course, this kind of schtick isn’t reserved just for politics. I remember back in 2009, I gave the following tip as well: Do not do layoffs or firings via e-mail. Period. (And last year, I wrote about how to conduct firings without getting sued too.)

So, for employers that are having to conduct firings, let me offer five suggestions for the actual informing of employees that they are being fired.

  1. Do it in person if possible, and have a witness.  If it’s not possible (distance, other circumstances), a phone call is a backup option.
  2. Do it in private.  Pick a time perhaps near the end of the day (or beginning) and perhaps in a location in the office that is away from crowds.
  3. Be brief and direct.  And plan in advance, what you are going to say.  Don’t draw it out, and don’t use wishy-washy language.  Some employers start with the “I have some bad news for you today.”
  4. Don’t argue with the employee or get into lengthy discussions regarding the termination. Be clear that the decision is final.
  5. Be sensitive.  Yes, firing an employee is typically hard on the employer, but guess what? It’s harder on the employee. Always.  Acknowledge the employee may disagree with the decision but be consistent with your message.

There is obviously a lot more to a termination meeting than this. Successful meetings are the result of preparation and practice.

But just remember: Your employee should find out he is being fired first from you — not a third party.

My colleague, Jarad Lucan (who just won a New Leader of the Law award from the Connecticut Law Tribune!) returns today with a post about the protections employees who testify in court may have. 

Lucan_J_WebMost employers (at least those employers that read this blog on a regular basis) know that it is illegal to subject an employee to an adverse employment action, such as termination, because that employee raised a claim of discrimination or was absent from work due to a serious health condition.

But what if your employee is summoned to court to fulfill his or her civic responsibility as a juror or is subpoenaed to provide witness testimony during a criminal proceeding?  Is an employer similar restricted in the actions it takes against an employee for participating in such activities?

The answer is “Yes.”  There are numerous statutes applicable to Connecticut employers providing protections to employees who attend jury duty or appear in court.

  1. Connecticut General Statute §51-247a prohibits an employer from discharging, threatening to discharge, or otherwise coercing an employee for responding to a summons or serving on a jury.  In addition, any employee who serves eight hours of jury duty in any one day must be deemed to have worked a full day’s work and an employer cannot require an employee to work in excess of those eight hours.  Any employee who is discharged in violation of this statute may bring a civil action against his or her employer for up to ten weeks’ wages plus attorneys’ fees.
  2. Connecticut General Statute § 54-85b prohibits, among other things, an employer from discharging, threatening, penalizing, or coercing an employee who obeys a legal subpoena to appear before any court in the state as a witness in any criminal proceeding.

    Further, this statute was amended in 2010 to provide protection to victims of family violence who attend court proceedings and who participate in police investigations related to that crime.   These employees also may not be discriminated against for having a protective order issued on their behalf.

    An employee who is discharged, threatened, penalized or coerced in violation of this statute may bring a civil action for damages and for an order requiring the employee’s reinstatement or otherwise rescinding such action. If the employee prevails, the employee shall be allowed a reasonable attorney’s fee to be fixed by the court.

    Aside from any possible civil liability, employers that violate either statute may be guilty of criminal contempt, and upon conviction, may be required to pay a $500 fine and serve up to thirty days in prison, or both.

  3. Under federal law, 28 U.S.C. § 1875 prohibits employers from discharging or taking any other adverse employment action (threatening to discharge, intimidating, etc.) against a permanent employee because that employee provides jury services in federal court. Employers that violate this statute may be sued for back pay, reinstatement, and attorneys’ fees and may be fined up to $5,000.
  4. Lastly, employees who testify on behalf of another employee in a discrimination claim may also be protected under both federal and state anti-discrimination laws.  Dan reported on the U.S. Supreme Court’s case back in 2011 that discussed what this “zone of interest” may look like.

A new case out of the Second Circuit answers a question that has perplexed employers: How can an employer defend itself from an employment discrimination claim when the person who made the decision becomes “unavailable?” 

(“Unavailable” can take many meanings such as, the witness is out of the country, but in many cases it means the witness is now deceased.)

The answer, according to the court, is that the employer can use circumstantial evidence to establish its legitimate non-discriminatory reason for the decision — such as by using a folder of resumes that the decisionmaker reviewed in making the decision not to hire an applicant. 

Both the Daily Developments in EEO Law Blog and the Employer’s Law Blog, do a good job recapping the case so I won’t repeat it here.  The case, Bucalo v. Shelter Island Union Free Sch. Dist., can be downloaded here.

Suffice to say, however, that this case is going to be the exception to the normal rule that it’s best to have a decisionmaker testify to the events at issue. 

The Second Circuit recognized, however, that there are “rare cases” where “an employer will be unable, through no fault of its own to articulate clearly and specifically its legitimate reasons for an employment actions.”

What’s the takeaway for employers? Preservation of a key witnesses’ testimony will still be best. But when that is not an option due to, for example, an untimely death of a witness, you can still use this as “Plan B.”