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The trend is unmistakable: The general counsel’s office is morphing into the general counsel/human resources office. Why? Increasing emphasis on employees as key assets; ever-increasing entanglement between the law and the workforce; and a human resources department stretched thin by increased responsibility but decreased personnel. General counsel are forced to look at human resources issues strategically from a 30,000-foot perspective, as well as specifically, at a fight-in-the-trenches level. Let’s talk strategy first. Perhaps 2003 will see no greater emphasis than in corporate ethics. Doing right, stopping wrong. That’s always important, but it’s even more so with a corporate scandal producing bad P.R. at best and Club Fed at worst. Start by looking at your corporate ethics policy, many of which are convoluted and indecipherable. Here’s one from the Ford Motor Co., talked about in “Net Words,” a book by Nick Usborne. (We’re not picking on Ford, but it is a good example.) At Ford Motor Co., 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 market place, and how we conduct our business. We aspire to be one of the most respected, admired, and trusted companies in the world. In his book, Usborne suggests revising a policy such as Ford’s to speak in a more human voice, like this: At Ford Motor Co., 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. As Usborne points out in his book, go for “simpler language. Simpler concepts. Simpler promises.” Employees will be at a loss on what to do, or where their company is going, if all they get has the substance of souffl�. What are the other big-picture items from a GC/HR perspective? Here’s one: getting a handle on litigation costs and possible runaway jury awards. Employee litigation is now, as a client of ours succinctly put it, a little like legalized extortion. Employee lawyers sue, go to mediation and then try to settle for the cost of defense. Perhaps our client has a harsh perspective, but then again, we don’t write the checks to pay attorney fees, settlements or judgments. Some employers opt for alternate dispute resolution programs, including binding arbitration, to manage costs and expenses. Key points to remember: Make sure you require the employee to pay no more than the filing fee required in court; if not, the American Arbitration Association won’t take the case and a court might strike the program. Also, think about incorporating a de novo provision in any ADR program, so a court can review an award on a clean legal slate. The 5th U.S. Circuit Court of Appeals gave them a thumbs-up, the 9th Circuit a thumbs-down, and the next stop is the U.S. Supreme Court. Still, it’s a potent weapon to use when you have it. Or imagine this: jury waivers. You read correctly. As a condition of employment, or continued employment, employees waive their rights to jury trials. They still get trials before judges and full discovery, but that’s it. This idea is based on principled reasoning: If submitting claims to arbitration can be a condition of employment, then why not a waiver of a jury? INTEGRATED TEAM Cruising along at 30,000 feet, we also believe HR executives are measured by the wrong metrics. Key criteria should be answers to these two questions: What did they do to stop a suit from being filed? Before one is ever filed, what did they do to see that the company’s exposure is minimized? And the question for the general counsel’s office at review time should be, “Is the general counsel’s office educating human resources on the how-tos of these two issues?” Company execs often unfairly accuse general counsel and human resources of being cost centers, not revenue centers, and therefore a hindrance in the pursuit of the Holy Grail of earnings per share every quarter. It doesn’t need to be that way, and a shift in sensibilities starts with changing how companies keep score. Now, let’s descend to trench level but stick with performance reviews for a minute. First, let’s talk about the No. 1 thing on our hit parade: employee of the month. If anything else is more useless and more trouble at the same time, we’d like to know. It’s useless because the workplace prizes teamwork, not individual performance, and it’s trouble because discrimination plaintiffs invariably point to these awards as evidence of a pretext in their suits. Abolish them. While we’re on that topic, think about decoupling performance reviews from annual raises. Otherwise, when the two are twisted together like a pretzel and announced at the same time, an employee doesn’t listen to the review; he just tunes you out until he hears about a raise or bonus, if any. Think about linking the review date to something — anything — else. Try this. We call it renewing your marriage vows. Look at the policies that are most important to you — perhaps a more user-friendly ethics policy, the sexual harassment policy or whatever is important. Have employees recommit once a year to review the policies and acknowledge they understand them. Make sure all the questions they have about them have been answered. Going on to a more micro-level, here’s the single biggest mistake we see in harassment policies: They forbid harassment based on unwelcome, offensive sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature. So far, so good. But as noted in Smith v. First Union National Bank, one company found out to its chagrin that this policy was not a defense when an employee sued for a variety of offensive remarks, including allegations that her supervisor told her that males are natural leaders, women are too emotional to handle managerial roles and that the only way a woman could get ahead at the company was to “spread her legs.” Because the employee did not complain or utilize the sexual harassment policy to register a concern, the company said that it should get off scot-free. Not so. While the comments may have been sexually provocative, it was based on gender and not covered under the sexual harassment policy, according to the 4th Circuit in Smith(2000). Add gender to your sexual harassment policies; you’ll be glad you did. Legal and human resources. Human resources and legal. We’re going to see such combos more often. General counsel should get ahead of the curve and start thinking of ways to integrate the two functions to build an increasingly responsive team. Michael P. Maslanka is chairman of the labor and employment section at Godwin Gruber in Dallas and writes the Texas Employment Law Letter, which can be accessed at HRhero.com. His e-mail address is [email protected]. Burton D. Brillhart is a participating associate with the firm.

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