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For a law student, the law is all certitude and declarative sentences: One side is right; the other is wrong. Being a lawyer, though, generates ambiguities and questions: Is it possible our side did something wrong? This question leads to yet another for general counsel: If so, what is the company’s response? After all, it is the general counsel who receives the letter from an employee’s lawyer claiming discrimination, who answers the door when human resources knocks and says an employment decision may be biased, who winces when he hears a company executive angrily remark that the Family and Medical Leave Act hurts production and that employees who take leave should be fired. So here is a five-step program on how to fix things when a general counsel is looking up at the moral high ground and not down from it. Step No. 1: Don’t circle the wagons. It’s wired into us: Attack me; I attack you. A good response on the plains of the Serengeti several thousand years ago, but a useless and often counterproductive response in the corporate confines of a steel and glass box. So, turn the switch to the off position and listen to the concern at hand — without preconceptions, without argument, without defensiveness. To paraphrase Judge Learned Hand, the spirit of lawyering is that which is not too sure that it is right. Here is a tip to make sure that you, as the GC, listen to the concern at hand, especially when you are not sure who or what is right: Conduct an audit of the challenged decision. As labor and employment attorneys, we’ve done that before with our corporate clients, and it works. Get a third party involved who is not invested in the decision — perhaps a company human resources employee, perhaps an outside investigative firm. Then require the third party to audit the decision: to ask questions about its factual basis, to determine the purported animus of the decision maker, to examine the employee’s work history. An audit is not a re-creation of the decision-making process, but rather a sampling of its correctness and accuracy. If a mistake was made, fix it; if not, the general counsel’s office did the right thing by the employee, the company and, if it comes down to it, the jury. Step No. 2: Doing the right thing. Unlike our favorite ketchup, the right thing comes in more than 57 varieties. The right thing is found along a continuum, calibrated to the need at hand. Let’s say there is a question about the validity of a termination decision. A powerful tool to remedy that bad decision is to make an unconditional offer of reinstatement to the employee. Come back to work (same terms and conditions of employment), continue any legal proceedings you’ve initiated and return at a specific date and time. This practice eliminates back-pay damages and puts the employee on the defensive. A pitfall to avoid: Don’t just have a manager sign the reinstatement letter, but have him draft it. The employee’s lawyer can make an unconditional offer letter sound like the Kennedy assassination conspiracy if the general counsel writes the letter and the manager simply signs it. The more effective and persuasive approach is to have the manager draft it, the lawyer review and edit it, and the manager sign it. Otherwise, the letter comes off looking like a lawyer trick. Remember this: How you decide to say something is just as important as what is said and matters just as much — and, in some cases, more. PROTECT THE CLIENT Step No. 3: Don’t fold like a cheap tent in the wind. Not circling the wagons, though, does not mean the company should fold like a cheap tent in the wind whenever an employee shouts, “Boo!” Look at the case of Tracey Lust who worked as a saleswoman in Madison, Wis., for Sealy Corp., the mattress giant. According to Lust v. Sealy, a 2004 decision out of the Seventh Circuit U.S. Court of Appeals, Lust wanted a promotion to key account sales manager. There was a key account sales manager opening in Chicago, and a male received it, not her. She brought an Equal Employment Opportunity Commission charge — a charge supported by the allegation that her supervisor made comments about blondes (Lust has blond hair) not being bright, and mothers (Lust is a mother) not wanting to relocate for their careers, according to the opinion. But Sealy’s response went beyond what it needed to do, offering her a choice of either Madison or Chicago, according to the opinion. Naturally, she picked her hometown, Madison. Perhaps smelling blood because of the company’s weak-kneed response, she pushed ahead with a suit, and a jury awarded her $1 million in compensatory and punitive damages, which the appeals court later reduced to $100,000. After all, the court reasoned, Sealy sought to quickly remedy its allegedly discriminatory decision and so should not be punished. While Sealy was smart to manage its risk and saved some money from doing so, it did not need to go as far as it did. The company should have said, “You want Chicago, you got Chicago.” That response might have ended the matter right then and there. It’s OK to play poker, even if an employer thinks the other side has all the cards. Step No. 4: Beware of the guilt-ridden manager. As labor and employment lawyers, if we’ve seen it once, we’ve seen it a hundred times: guilt-ridden managers agonizing over getting the company into a suit and seeking redemption in all the wrong places. General counsel need to give these managers the following advice: Zip it. Sure, yakking away may make the manager feel better for a moment, but it’s just a moment. Let’s return to Lust. One of the managers, after being informed that Lust was complaining of sex discrimination, wrote three self-serving memos to the file about why Lust was passed over, according to the opinion. From our viewpoint, the jury might have been angry that the manager churned out these three memos — contemporaneously with the threat of litigation. It was all just too convenient. A company takes its case as it finds it, and appearing to create evidence, although well intentioned, makes it worse, not better. Speaking of looking bad: According to the opinion, after Lust filed the suit, another manager said during a break from depositions that “we probably all would not be here today” had the manager just asked Lust whether she was willing to relocate to Chicago. And guess what? Lust testified about the manager’s remark at trial, arguing that it showed consciousness of guilt. We also see this tendency in sexual harassment cases, the ones in which the manager and an employee were dating, they broke up and the employee then claims sexual harassment. Some managers view giving a deposition as an opportunity to reach out to a former significant — now insignificant — other. Be wary and give these instructions to such a manager: Be professional, be polite and be quiet. Step No. 5: Crucial confrontations. Working with executives who may not have an enlightened view of employment law or working with employees is a challenge for general counsel. Remember this: You can’t change people; you can only help them. And if the situation is bad enough, the only tactic that may work is a crucial confrontation. For those looking for some guidance about the right way to confront someone, there is a great new book, “Crucial Confrontations” by Kerry Patterson, Joseph Grenny, Juan McMillan and Al Switzler. The book’s big idea is this: Create a zone of safety so the message is heard. The authors suggest that the speaker imagine what the recipient might erroneously conclude the conversation is about; immediately explain that this is what the speaker doesn’t mean; declare, as a contrasting point, what the speaker does mean; and develop a mutual purpose. Confused? Here’s an example of what they’re talking about: “Joe, I don’t want you to think that we believe you have trouble relating to female employees. But some of the comments you make create an atmosphere that adversely affects all of us, and employee morale. It’s just, I want to make sure that you are careful about the words you use, your language.” Put that way, the speaker neutralizes what the recipient thinks might be coming down the pike, creates a safe zone and establishes a mutual purpose. With a sensitive topic, especially with a high-ranking executive, ask permission to address an entire area, not just one person or element. Doing so is a powerful sign of respect, enhancing the safety zone. Some believe finding the right way to confront someone is simple, usually rewarded and seldom needs to be done. That’s not necessarily true, so don’t count on it. But knowing that neither side has a lock on the truth, and that lawyers are not always on the side of the angels, empowers the general counsel with the flexibility to protect the client — the company for which the GC works. Michael P. Maslanka is managing partner of the Dallas office of Ford & Harrison. His e-mail address is [email protected] Theresa M. Gegen is an associate there. Maslanka and Gegen are board certified in labor and employment law by the Texas Board of Legal Specialization. They write the Texas Employment Law Letter and Texas Workers’ Comp Reporter. This article was originally published in Texas Lawyer, a Recorder affiliate based in Dallas.

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