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The trend is unmistakable: The general counsel’s office is morphing into the human resources department. And, no, that’s not as bad as it sounds. Sure, HR can be an Excedrin headache for GCs. But closer involvement pays off. It allows in-house lawyers to assert more influence in policy setting and to perform preventive maintenance that may head off costly litigation. We know that in these tough economic times, your legal department is already overwhelmed, but trust us, these few steps will help your department down the road. Take a few pages from HR’s playbook: Make sure that your corporate ethics policies and other statements released to the public are clear and comprehensible. Just the opposite happens more than you’d think. Consider the following policy issued by the Ford Motor Company some years back and quoted in Net Words: Creating High-Impact Online Copy by Nick Usborne (McGraw-Hill, 2000): . . . We endeavor to become a leading contributor to a more sustainable world. Corporate citizenship is an integral part of every decision and action we take. Corporate citizenship focuses on who we are as a company, what we offer in the marketplace, and how we conduct our business. We aspire to be one of the most respected, admired, and trusted companies in the world. Say what? Usborne suggests revising this particular policy to make it speak in a more human voice: . . . We try hard to follow business practices that are sustainable in the long term. As a company, we are aware of the impact we have on the planet around us. This awareness shapes who we are as a company and how we conduct our business. We are working hard to earn your trust. Usborne says company policies should be written using “simpler language, simpler concepts, simpler promises.” That clear language will help employees understand the company’s direction and values. In years past, GCs got involved in employee matters only when workers sued over discrimination. Consider that era over. More and more GCs, following Mark Twain’s advice that “it is easier to stay out than to get out,” are involving themselves in hiring. That way, they can help bounce a potential problem employee before he or she comes on board. One GC we know insists that applicants describe past supervisors they’ve had who were particularly good or bad, and explain why. The small segment of interviewees who gloss over the good supervisors, and instead obsess extensively about the bad ones, are flagged. Take a greater role as GC in crafting HR policies that encourage the use of alternative dispute resolution (ADR) procedures in the workplace. ADR provides employees with a way to resolve their disputes without full-blown litigation at the courthouse. What’s more, corporate counsel are realizing that if binding arbitration is part of the ADR agenda, they can have their cake and eat it too. In addition, many companies employ a de novo provision. This essentially constitutes a second bite at the apple: If a company loses at arbitration, it can ask a court to review the arbitration award on a blank-slate basis. That way, the company can appeal an adverse arbitration award in court, just as it could a jury verdict. Obviously this strategy helps manage legal costs. Go a step further toward protecting your company at the hiring level: Get rid of juries altogether. GCs who are especially adventurous should consider the jury waivers option. Here’s the drill: If companies can require employees to agree to ADR as a condition of employment, why not ask them to agree to jury waivers as well? Sure, those waivers are going to be controversial. But, as George Bernard Shaw once said, every truth started out as a heresy. Consider employee training to be your province as well as that of human resources. In Kolstad v. American Dental Association, in 1999, the U.S. Supreme Court said that a Washington, D.C., employer would not get hit with punitive damages — even if a jury found that the company had discriminated — provided that the company had tried its best to prevent discrimination in the workplace. One of the easiest ways to guard against “an empty head but a pure heart” is to ensure that the training offered looks at exactly what “discrimination” is and how to prevent it. We can’t emphasize this too much. Ruling on an age discrimination suit, the U.S. Court of Appeals for the Seventh Circuit recently called the failure to train an “extraordinary mistake” for a company to make. The court ruled that a jury could find that that type of mistake amounted to reckless indifference to the law. Apply your pruning shears to traditional employee policies. The number one thing on our hit list? “Employee of the month” awards. If anything is more useless and more trouble, we would like to know. The modern workplace stresses teamwork, not individual performance. Secondly, these awards are trouble because discrimination plaintiffs invariably point to them as evidence of a discriminatory pretext. Also, think about decoupling performance reviews from annual raises. Otherwise, the employee may simply tune you out until you get to the part about a raise or bonus, if any. The smarter course? Link an employee’s review date to something else — anything else. Have your company’s employees “renew their vows.” Determine the key policies in your organization: your ethics policy, your sexual harassment policy. Then have employees recommit once a year to reviewing these standards and acknowledging that they understand and accept them. Rewrite your policies. GCs should review their companies’ employment application and harassment policies (especially if operations are in multiple states). Insert a statement saying that your company neither discriminates nor permits harassment , to the extent specified by state or local law. Also ensure that your policies don’t prohibit just sexual harassment, but harassment based on all protected classifications. Those may include disability, gender (which is distinct from sexual harassment), race, and sexual orientation. Redesign both your performance criteria and HR’s. Grade yourselves on how well you each responded to the last lawsuit. Did you stop it, and did you do so in a cost-effective manner? Think of yourself and HR as a revenue center, not a cost drag. No need to be timid here. Abolish performance appraisals if that works for you. Or, keep your “handbook” simple, following this old model from Nordstrom, Inc.: “As an employee . . . all we ask is that you use the best possible judgment at all times.” Have a real influence on what matters most. Isn’t that why you became a GC in the first place? Michael P. Maslanka chairs the labor and employment section at Godwin Gruber in Dallas; he also writes the Texas Employment Law Letter. Burton D. Brillhart is a partner with the firm.

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