How not to gripe about the boss
OPINION: Former FBI director James Comey has published a book, A Higher Loyalty: Truth, Lies and Leadership, in which he takes several swings at his former boss, US President Donald Trump.
During national interviews, Comey has said Russia could have compromising information on Trump and there is ‘‘some evidence of obstruction of justice’’ in the president’s actions.
This book provides Comey’s version of the events of his firing by Trump. It also covers the probe into Russian election-meddling, Hillary Clinton’s email practices, and Trump instructing Comey to end an FBI investigation into former US national security adviser Michael Flynn.
For good measure, Comey also said Trump is morally unfit to be president. He treats women like pieces of meat, lies constantly about matters big and small and insists Americans believe it.
As you would expect, Trump hit back, saying Comey would be remembered as the worst ever FBI director, and should be jailed.
These events raise questions about employment law and whether there are obligations on workers and employers after the employment relationship ends.
Once employment ends, the normal obligations of fidelity and behaving in a way that promotes trust and confidence no longer apply. But does this mean that employers and workers can say what they like about each other?
Traditionally the law imposes a duty on workers to maintain confidentiality. However, the information must be truly confidential, and communicated in a way that creates an obligation to maintain confidence.
Where that information is used without authorisation and causes harm to the former employer, legal action can be taken. But this is clearly quite a limited safeguard.
This confidentiality obligation can be seen in a case involving Medic Corporation and Mr Barrett. Barrett was employed by Medic Corp but was made redundant. He and another former worker went into business in competition with Medic Corp and sought to replace it as the New Zealand distributor for one of its key suppliers. The pair planned to take advantage of the fragile relationship between Medic Corp and the supplier, which they became aware of while employed.
Knowledge of an employer’s relationships with its suppliers, particularly when fragile, should not be used to the employer’s detriment. The court prevented Barrett and his business partner from entering into business with Medic Corp’s suppliers.
But what about bad-mouthing your former employer as Comey did? Readers may believe a person should be free to express their views in such a situation and know that the New Zealand Bill of Rights Act protects freedom of expression. The Bill of Rights only binds governmental organisations, yet it may still fortify readers to know they can express themselves without government interference.
However, the law of defamation may have a chilling effect on statements like Comey’s. There is a defence for truth or an honest opinion, but you enter an area riddled with landmines if you defame a former employer.
An employer who wants to avoid being publicly criticised by former employees should ensure their employment agreements include a confidentiality clause that remains in force after employment ends. It is worth looking at confidentiality clauses for high-ranking executives.
Trump seems to fire more vitriol than all of the dismissed officials combined. Does the law say anything about subduing a former employer’s tongue?
The leading case is an English one involving Graham Spring. Spring was employed in 1989 by Guardian Assurance as a sales manager in the small town of Cirencester. He was dismissed without explanation that year by a newly appointed chief executive.
He applied for a job with a competitor, Scottish Amicable Life Assurance Society. Unfortunately, when a reference was sought, Guardian described Spring as ‘‘a man of little or no integrity [who] could not be regarded as honest’’ and that he ‘‘consistently kept the best leads to himself with little regard for the sales team that he was supposedly to manage’’.
Guardian added a sting by saying Spring left the company ‘‘owing some £12,000 which to date has not been repaid’’.
Unsurprisingly, Spring was not offered employment with Scottish Amicable Life Assurance. Indeed, he had no luck finding alternative work. Of course Spring was unhappy with Guardian’s role in the destruction of his career.
His case was eventually heard by the House of Lords, which found in Spring’s favour. They stated employers have a duty towards former workers to give an honest reference where one is sought. Spring’s case highlights that anyone who provides a reference must do so honestly, or not give a reference at all.
For the most part, we seem to live in a country where people give respectful and truthful references. At the very least we should all be glad that in New Zealand scathing tweets from our nation’s leaders have not become the norm.
❚ Peter Cullen is a partner at Cullen – the Employment Law Firm. peter@cullenlaw.co.nz