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The Practical Employer

The 5th Nominee for the Worst Employer of 2018 is … the Political Pension Preventer

If you fire a long-tenured employee (hint: former FBI Deputy Director Andrew McCabe) on the eve of his pension vesting, you might be the worst employer of 2018.

ERISA section 510 provides:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan … or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.

The Supreme Court has long interpreted this section as “protect[ing] plan participants from termination motivated by an employer’s desire to prevent a pension from vesting.” As the 6th Circuit noted, “[T]he prohibitions were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.”

Late Friday, March 16, Attorney General Jeff Sessions fired former FBI Deputy Director Andrew McCabe. McCabe was (almost) a 21-year veteran of the bureau and was to have retired just two days later. The firing, however, prevented McCabe both from voluntarily leaving the FBI and collecting his federal pension.
The administration claims that it fired McCabe because of his role in directing other FBI officials to speak to press about his involvement in a public corruption investigation into the Clinton Foundation.

After an extensive and fair investigation and according to Department of Justice procedure, the Department’s Office of the Inspector General (OIG) provided its report on allegations of misconduct by Andrew McCabe to the FBI’s Office of Professional Responsibility (OPR).… The FBI’s OPR then reviewed the report and underlying documents and issued a disciplinary proposal recommending the dismissal of Mr. McCabe. Both the OIG and FBI OPR reports concluded that Mr. McCabe had made an unauthorized disclosure to the news media and lacked candor − including under oath − on multiple occasions

McCabe, however, disputes this narrative, claiming that the timing of the report and the termination decision were retaliatorily designed to deny him his pension:

Here is the reality: I am being singled out and treated this way because of the role I played, the actions I took, and the events I witnessed in the aftermath of the firing of James Comey.… The OIG’s focus on me and this report became a part of an unprecedented effort by the Administration, driven by the President himself, to remove me from my position, destroy my reputation, and possibly strip me of a pension that I worked 21 years to earn. The accelerated release of the report, and the punitive actions taken in response, make sense only when viewed through this lens.

No matter your politics, the timing of this termination stinks. If you fire a long-tenured employee on the eve of his pension vesting, you might be the worst employer of 2018.

Previous nominees:

The 1st Nominee for the Worst Employer of 2018 Is … the Holy Harasser

The 2nd Nominee for the Worst Employer of 2018 Is … the Arresting School Board

The 3rd Nominee for the Worst Employer of 2018 Is … the Camera Creep

The 4th Nominee for the Worst Employer of 2018 is … the (in)Humane Society Harasser

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.