A Conversation with and Lessons to be Learned from Bill O’Reilly A Conversation with and Lessons to be Learned from Bill O’Reilly

A Conversation with and Lessons to be Learned from Bill O’Reilly

[This is a conversation that absolutely did not occur and considerable license is being exercised. The point of this is to learn a few important lessons from Bill O’Reilly’s exit from Fox News.]
 
Date:  The day of O’Reilly’s termination
Place:  Rupert Murdoch’s office
Attendees:  Rupert Murdoch (Fox News CEO) and Bill O’Reilly
 
Murdoch: Bill, I’m sorry to tell you that we’ve reached the end of the line with you and have to let you go. Frankly, I’m shocked at your behavior and what we have heard. I’m issuing a memo to Fox News staff today to tell them about your departure and that “we want to underscore our consistent commitment to fostering a work environment built on the values of trust and respect.” 
 
O’Reilly: “Fostering a work environment….?!”  “Consistent commitment?!” Why does this remind me of Captain Renault shutting down Rick’s Café Américain in Casablanca, exclaiming that he was “shocked, shocked to find that gambling is going on here!?”
 
Lesson 1: Culture “Trumps” All. What was the culture at Fox News and did it contribute to the issues facing the company with O’Reilly? Corporate culture is complicated, but most experts say that it starts at the top. Fox News had already ousted CEO Roger Ailes on similar charges. My experience is that a company is best served when its executives actively participate in creating a culture that encourages diversity, inclusion, and fair treatment. When given the opportunity, executives should vocally and emphatically state their personal and the organization’s opposition to behavior that is counter-cultural. Putting aside the fact that this is simply the right thing to do, failing to do that allows a plaintiff in a discrimination or harassment case to argue that he or she worked for an organization that tolerated poor behavior and that it ignored violations of anti-harassment and Equal Employment Opportunity (EEO) policies. 
 
Murdoch: Bill, your show drew millions of viewers and generated hundreds of millions of dollars for us over these past few years. We are grateful for that. And to show you our gratitude, we gave you a new contract last year. You’re going to get a severance payment just as your contract provides. 
 
O’Reilly: I’m just happy my agent protected me last year. That’s a lump sum payment coming to me next week, right?
 
Lesson 2: Carefully Draft Employment Contracts. We have not seen O’Reilly’s employment agreement with Fox News, but news sources put his severance deal in the range of one year of his salary: $25 million. Many employers operate without employment agreements and retain the right to terminate employees on an at-will basis.  But, others enter into contracts with employees that provide them with certain protections and guarantees, including severance payments, in the event of a dismissal “without cause.” There is no more important provision in any employment agreement than the definition of “cause.” This definition should be reviewed and drafted carefully, and an employer should retain as much flexibility as possible. Granted, this may be an area of negotiation with a new employee, but a suggestion would be to include that “cause” for termination exists if the company determines, in its sole discretion, that the employee has violated the company’s anti-harassment or discrimination rules. And, regarding severance, keep in mind that the best practice is to require the employee to sign a release (drafted by the company) in exchange for severance. A lump sum payment may not be appropriate either; instead, consider the terms of the severance agreement and whether it would be more beneficial to pay the employee over a period of time in order to give him or her an incentive to adhere to all of the agreement’s terms and conditions.  
 
O’Reilly: Rupert, after I get my severance I’m going to take a nice vacation to Bali, and I don’t want to read that you are saying anything nasty about me. Don’t forget that my employment contract also has a strict non-disparagement provision, and if you breach that, you have to pay me double my severance amount.
 
Murdoch: Don’t worry, Bill. The lawyers have made sure I stay quiet on this. No way am I paying you double! By the way, I heard you got an advance on your next book and that you’re working on a film. When you sell the movie rights, I’d like to be played by John Goodman—I loved him in The Big Lebowski.  
 
Lesson 3: Non-Disparagement Provisions. A non-disparagement provision is a typical clause in severance agreements, and they are often found in employment agreements as well. I will leave for another day a discussion of holdings of the current National Labor Relations Board (NLRB) that question the legality of many non-disparagement policies because they interfere with an employee’s rights under the National Labor Relations Act.  Instead, let me offer a couple of suggestions. First, if a non-disparagement provision must be included in an employment contract or severance agreement, a company should be cautious about agreeing to a mutual non-disparagement provision. Such provisions are often written in a way that creates a commitment by a company to ensure that no negative statements are made by anyone about the former employee. No company can guarantee this—there are far too many people that it would have to control. A better approach is to state that the company “will not authorize” negative statements or limit the provision to members of the board or officers. Second, I believe employers should consider whether it might make sense to talk to their employees generally about the type of behavior that caused the termination of the employee in question. While employers are fearful of lawsuits for defamation, if an employer speaks the absolute truth about what a former employee did, the employer can take advantage of the affirmative defense of “truth” in responding to a claim of defamation. In addition, there is often great value in explaining to remaining employees that certain behaviors are intolerable and that they should understand that the same result (i.e., immediate termination) will occur if they engage in those behaviors. I am not suggesting that every termination should result in an all-employee meeting, but organizational leaders should not necessarily adopt a policy of silence. After all, conveying this information can be part of creating the culture of the company, and employees can benefit from strong and clear messaging from executives. 
 
The O’Reilly episode will soon pass and be out of the news cycle, but the lessons learned from it can continue to be valuable. No matter what we think about what led to his termination, we know that many employers face similar situations. The bottom line for employers is that there are proactive steps that they can and should take to minimize the legal risks and, more importantly, to create and sustain an organization that offers a safe and healthy workplace for all employees.
 
For assistance with employment and severance agreements, please call Michael Blickman or another member of our Labor, Employment and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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