Department of Justice, Labor / Employment, On The Job, Politics

President Trump Likely Terminates Employees In Violation Of The Law -- And Jeff Sessions Might Be Next

It seems President Trump isn't familiar with 'wrongful termination in violation of public policy.'

By  
on

When James Comey went to testify before Congress, I knew we had something special here in Donald Trump’s administration. While it isn’t totally unheard of to fire an FBI director, particularly when there is a change of the guard, the chaos that surrounded his termination meant that things were going to get interesting fast. I mean, Russia was involved. And so we have seen a parade of people come and go, some only in press releases, with this current administration. I don’t think anyone told them to be slow to hire, in addition to being quick to fire. And no one told Trump about wrongful termination in violation of public policy.

Hostile Work Environment? Ageism?

Perhaps the saddest situation unfolding right now is the one with Jefferson Beauregard Sessions III. Donald Trump has an ongoing campaign against Jeff Sessions. To some, it’s a hostile work environment. Allegedly Donald Trump (or one of his surrogates, who knows anymore) said Sessions is “too old” for the job.

I’m a black woman, the child of a mother who grew up in Georgia and a father who grew up in Virginia. Both of them have scars from school desegregation. I’ve witnessed KKK rallies. Experienced the aftermath of a cross burning. I have not an ounce of pity for Jeff Sessions. The reason this is so sad is because Sessions won’t quit.

The general refrain that seems to be coming from all quarters for Trump is a hostile work environment. It’s a common one for an employment lawyer.  At least once a month, I get a call from someone who left their job due to what they perceived to be a hostile work environment. Those words have a very specific meaning, and a very high bar in relation to discrimination. I don’t think that Trump’s administration or White House is an actionable hostile work environment. (Well, maybe on gender.)

But I feel for the millions of workers like Sessions. Only these workers who do a good job, get good experience, don’t have letters written about their evilness from the wives of civil rights martyrs with national holidays, and then listen to their employer make jokes at their expense about their age. I feel particularly bad for employees who experience this by people who are also covered by the Age Discrimination in Employment Act, because I know that it’s really really hard to win a claim like that. Just like Sessions is experiencing now with Donald Trump. The best bigots are ones who can claim it was a self-deprecating joke.

I don’t think it could happen to a nicer man. But it’s too common a refrain for in demand jobs, which tend to be hotbeds of discrimination. Just look at the tech sector.  Facebook’s median age is 26. Google’s is 30. The national average age is 38. Given that these places like people to spend working years in college and graduate school, this is an even more interesting statistic.

Sponsored

While the “too old” comment is problematic regarding Sessions, it may be the mildest of jabs lobbed at Sessions by Trump. In the grand scheme of things, Trump is actually harassing Sessions because he won’t make the Russia mess go away, and his refusal to do so — the fact that Sessions illustrates this minimum amount of ethics — is the real problem. This isn’t a hostile work environment so much as a termination in violation of public policy in the works.

Termination In Violation of Public Policy?

In almost every state, employees are “at will.” This means you or I can pick up shop and go when we want, and our employer can cut ties at any moment. You can be fired for a good reason, a bad reason, or no reason at all, so long as it isn’t an illegal reason. An exception to the at-will doctrine is wrongful termination in violation of public policy. This occurs when an employer asks an employee (1) to violate a law or clearly adopted public policy, or (2) to refrain from a legal duty/right, and then (3) terminates the employee when they refuse. While I thought this doctrine lined up nicely with the Comey termination, it lines up perfectly with Sessions.

I’ve never seen this doctrine be successful, though I had quite a few cases in my career that raised it. The biggest reason is that it isn’t an easy theory to prove, because employees who seek to use it often give their employer legitimate reasons to fire them. I had an employee early in my career who was a porn aficionado and didn’t believe in coming to work on time. His claim went nowhere. I had an employee who got into a physical altercation at work try to bring this type of claim. No, his termination was because he got into a physical altercation at work. But Sessions has done nothing to get himself fired. He is a true fan of the Trump agenda, maybe more than Trump is. Sessions has his head down doing the bigoted work of this White House, even writing amicus briefs for no good reason. Trump has no qualms with Sessions’s actual job performance.

A case I remember fondly from early in my career that could literally be Sessions is Dunn v. Enterprise Rent-A-Car Company. The facts of the case aren’t that exciting, but they can (basically) be re-mixed for President Trump and Attorney General Jeff Sessions. The company controller (which is kinda like the Attorney General) is told by the company president to make the company look good for an IPO. The controller’s been doing such a good job, they want to take the company public. But the controller refused to be flexible with the accounting and loosey-goosey on the forms he would need to submit to the SEC, and he was fired. Kinda like refusing not to comply with ethics rules. The Court of Appeals in Missouri raised this claim from the dead, because you can’t fire someone for refusing to violate the law, even if “the law” isn’t a literal statute, but a requirement that is in the best interest of the public. Kinda like ethics.

Sponsored

Most of us will (thankfully) never be in this type of situation. But if you do feel pressure to violate the law at work, you should likely find new work. And the sooner the better. You do not work for an ethical company if you get this type of request, and lots of innocent people go down on the ship with corrupt companies. If I was Sessions, I would quit (well, I never would have taken the job because nothing about Trump says “I comply with the law and understand ethics,” and I’m an attorney and like to feel good about what I do for a living, but I digress…)

If your employer asks you to lie on that report: quit. If your employer thinks ethical rules aren’t important: quit. If your employer thinks regulations are suggestions: quit. If your employer thinks ignorance of the law is a defense, and asks you to play ignorant: quit. And if, when you tell your employer no, you will not lie to the SEC, you are shown the door, find a good employment attorney. Because these cases are particularly exciting and memorable, and are the few times in employment law that the employee gets to be a hero.

beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

Topics

, , , , , , , , , , , , , , , ,