On Tuesday, President Trump fired FBI Director James Comey.
Within minutes of Director Comey’s firing for mishandling the investigation into Hillary Clinton’s use of a personal email server, pundits speculated whether the President was really retaliating for the FBI’s investigation into Russian meddling in the 2016 election.
As the news unfolded, I was struck by the similarity to situations that play out in HR offices every day.
A supervisor walks into HR.
Supervisor: “I want to fire Jim.”
HR: “Okay. Why?”
Supervisor: “Well, last year he really screwed up an important email project.”
HR: “Last year?”
Supervisor: “Well, yeah. And he’s not a team player and I generally just don’t want him on my team. I just want to get rid of him. We’re in an at-will state, aren’t we?”
HR: Sigh. “Yes, but let’s set that aside for a minute. What did you do about his screw up last year?”
Supervisor: “Well, I wasn’t his supervisor then. I became his boss about four months ago.”
HR: “But you didn’t want to fire him when you became his supervisor?”
Supervisor: “No… and not that it matters but I may have praised him for his handling of that project on several occasions.”
HR (wearily): “Of course you did. What documentation do you have about his performance last year?”
Supervisor (excitedly): “Oooh, look! I have a memo that outlines what he did wrong!”
HR (hopefully): “Good. And it was written contemporaneous to the project failure?”
Supervisor (bewildered): “Uh, no. It was written yesterday… at my request… by one of my other employees.”
HR (sighs): “Right. Okay, so since you’ve been his supervisor, what has his performance been like?”
Supervisor: “Awful. Horrible. He has absolutely no clue what he’s doing.”
HR: “Do you have emails to him about his need for improvement? Or any notes about conversations with him about that?”
Supervisor: “Not really. But I can create some if you really need it.”
HR: “Okay, well, I need to let you know that Jim sent me an email yesterday, wishing to file a complaint about your treatment of him and asking for an investigation.”
Supervisor: “Yeah, I knew about that but it has absolutely nothing to do with why I want to fire him.”
HR: “Of course not.”
Regardless of the legitimacy of the reasons for Director Comey’s firing, the “optics” are bad for the President.
Similarly, employers’ motivations for disciplinary actions can be questioned when there is a lack of documentation and a delay in taking disciplinary action.
This leaves the employer open to allegations that the disciplinary action was for some other reason – often illegal retaliation for the employee taking some action protected by law such as complaining about discrimination or unsafe working conditions, requesting some sort of accommodation, or asserting other rights.
In fact, retaliation claims make up almost half of all EEOC charge filings.
And even when the underlying complaints for discrimination or other violations are unsubstantiated, employers are often found responsible for taking retaliatory action against the employee.
Here are a few basic HR practices that will help avoid such claims altogether:
1. Train supervisors to:
- Provide consistent and accurate performance feedback.
- Address and document performance issues as they arise.
- Document follow-up conversations about performance improvement or the lack thereof, including potential consequences of failure to improve.
2. Make sure your company’s discipline policies are fair, simple, and consistently followed by all.
3. Don’t let high performers get away with bad behavior.
4. Quickly and fairly investigate employee complaints.
There is obviously a lot more to avoiding litigation but following these basic guidelines will help create a culture of accountability and trust, where everyone knows what is expected of them and how they are performing relative to those expectations.