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“The Tipping Point” by Malcolm Gladwell is rapidly becoming required reading for corporate America. Its “big idea”? You can do everything right, get an A+, score off the charts, and it all means zip unless you find the one thing that tips you across the goal line. It’s the pivot point, the fulcrum, the proximate cause (see, law school does pay off), without which your hard work ends up a useless pile of good intentions. Employment issues with which in-housers are daily involved — investigations, policy writing, trial strategy — all have pivot points. Like Waldo, they are sometimes obscured but never completely hidden. Let’s say there is an investigation of supervisor misconduct. The evidence nails him. Still, no investigation is complete until the accused gets his say. Can the place of an interview be a pivot point? It sure can, as we discovered to our chagrin. A manager was suspected of falsifying employee time cards, decreasing their hours so as to increase his productivity. His machinations were discovered while he was off on workers’ compensation leave. Not wanting to bother him while convalescing at home (good instinct) or require him to travel to the office from his remote home (good intentions but …), the company honchos decided to interview him in an in-between locale; a busy restaurant, packed with lunch-time customers. His explanations were hollow, and he was fired. Instead of slinking off into the night, he sued, claiming retaliation for filing a workers’ compensation claim. Did he skate? Two mock juries let him, seeing a crowded restaurant as an inappropriate interview locale. A typical reaction: “I bet they didn’t even buy him lunch.” So, where is the tipping point? Always interview in a business-like location. Never discuss an employee’s performance in public. When business-like locales are unavailable, then rent a hotel conference room or an airport meeting facility. Trust us, it’s worth the tab. Tipping points pop up frequently, and often unexpectedly, during in-house investigations. Here’s a not uncommon drill: Employee claims Joe was creating a hostile working environment; human resources, with in-house guidance, conducts a thorough, fair, complete investigation, and it all boils down to a swearing match with no tie-breaker evidence. Then what? HR reviews the inconclusive investigation with the complaining employee, quickly assuring her that “We reviewed our policies with Joe, made him sign off again on our anti-harassment policy, and please come to us with any other concerns.” Joe does it again; he’s fired; she sues. The company laments: “What more could we do?” Well, try this tipping point: Instead of saying “Call us,” try saying, “We’ll be checking on you and asking how it’s going.” Then do it. The first won’t win a case for you; the second will. The buck also stops at an in-houser’s office when it comes to developing, writing and implementing employment policies. So much work goes into them — drafting, negotiating with HR, getting executive buy in. But without a tipping point, it is so much wasted energy, sort of like using your shoulder to roll a stone up a mountain side, ending up just inches from the summit, and then being unable to roll it over and down the other side. Let’s look at a few tipping points. First, it’s OK to spend inordinate amounts of time writing policies, expending money putting them in a user-friendly booklet and using effort into disseminating them to the work force. So far, so good. But here’s the tipping point: Employees need to be periodically reminded of certain key policies (such as harassment, conflict of interest and ethical obligations), and therefore should be required to review and sign off on them annually. It’s just like a couple renewing their marriage vows. FIRST THINGS FIRST With respect to new employees, here’s a tipping point developed by the Disney Co. for employees going through orientation. Instead of first reviewing key policies, Disney begins employee orientation by giving the newbies a tour of where they will punch in, explaining the payroll system and showing them where to park their cars. Disney understands human nature; namely, that if it tries to go through its policies first, the new employees will not be paying attention because they are going to be daydreaming about matters of more immediate concern to them. Finally, a couple of legal tipping points on policies. Having employees agree to arbitrate employment claims is fine, but think about putting in a provision that a court can review an arbitrator’s legal conclusions, with the tipping point being a specific recitation of the court’s standard of review. Or, in a covenant not to compete agreement, don’t just state that the employee will receive confidential information during the course of employment, instead specify the confidential information is being exchanged contemporaneously with the signing of the covenant. Without these provisions, these agreements never will pack the punch of which they’re capable. Investigations and policy-writing are somewhat pleasant job duties, especially when compared to the more difficult ones you’re often drawn into, such as whether to fire an employee. It isn’t easy. The decision involves lots of questions: Was the employee given a fair chance on the job? Are her skills a match for her duties? Should we try her in a different position? A couple of years ago we were advising a company in this situation. One of its executives stumbled across a tipping point, namely, “Are we doing the ethical and moral thing by keeping Jane Doe on when we know in our hearts of hearts that her skills don’t match the job’s requirements and that each day that she spends here is one less day she can be spending at a place where she will be more productive?” Bingo. With tipping points, you often stumble across them, sort of like Columbus, who was looking for one thing and found another. Next time, when stuck on a tough termination decision, try framing the issue with this tipping point. Sometimes terminations lead to suits, which have all sorts of tipping points. We recently moved firms. Cleaning out our former offices, we came across the transcript of an age discrimination trial from the early 1980s. Confident we had discovered a treasured relic, we read the opening statement. It was just like flipping through your high school yearbook. In a word: painful. It was a reduction-in-force case, and we belabored our clients’ decreasing profits, bemoaned its economic situation vis-�-vis worldwide competition and belittled the plaintiff’s motivation as pure greed. In short, we were telling the jury our “truth,” not their “truth.” While everything we said was factually correct, and all our witnesses carefully prepared to testify, and all the motions in limine and jury instructions lined up like sparrows on a telephone pole, we missed the important tipping point. And here it is in one word: empathy. The ability to look at the world through another’s eyes and with their perspective. When you understand someone else’s truth, not just your own, you become a more persuasive advocate and a more formidable foe. A tipping point strategy would have been to tell the jury that it was tough to let people go, but the company did it fairly and with the desire to keep the best person for the job. The jury’s truth, not ours. Mark Sobus, a jury consultant for DecisionQuest in Texas, boils down the tipping point search for empathy to three questions: What is the one thing the opposition just doesn’t want us to talk about? How does your opposition’s case threaten something jurors really care about? And why should jurors feel good about voting for your client? A small shift in perspective, a seismic shift in strategy. In “The Art of War,” Sun-Tzu succinctly put this strategy: “Know the enemy and know oneself; one who does not know the enemy but knows only himself will sometimes win, sometimes lose.” Understanding tipping points lets you have more of the first, and less of the second. In law, as in life, it’s the small things that count. We can do everything right, but it won’t matter without the tipping points — the right venue for an interview, an empathetic closing line to a harassed employee, a yearly reminder to employees about their obligations or a view of a situation through mothers eyes. Ask yourself: “Have I found the tipping point?” It just might be a small thing that saves you. Michael P. Maslanka is a partner at Andrews & Kurth in Dallas, is board-certified in labor and employment law by the Texas Board of Legal Specialization and has more than 20 years’ experience. Theresa M. Gegen is a senior attorney at the firm and also is board-certified in labor and employment law. They are editors of the Texas Employment Law Letter, which can be accessed at http://www.hrhero.com/.

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