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A general counsel’s most important role is helping the client discover the Big Picture. You’ve got the time, temperament and training to do it, especially where it matters most: deciding whether to fire an employee. Here are five keys for empowering the client with a 360-degree perspective. Key No. 1: Don’t go on automatic pilot.Flipping the automatic pilot switch on means letting something else do the thinking. Like a microwaved dinner, it’s convenient, but not satisfying. Let’s look at a true story. An employee works as an attendant in a home for the mentally disabled. She slaps a patient across the face. Automatic pilot blares that she must be fired, so she is. Drilling down to the facts, though, shows that the patient engaged in increasingly sexualized behavior toward the employee, repeatedly touched her inappropriately and her request for self-defense training was denied. When he pinched her, she finally cracked, slapped him, self-reported and got fired. Fast-forward two years: A federal judge finds the slap is “oppositional activity” to sexual harassment and awards the employee $87,000. Here’s the point: Maybe she should have been fired, maybe not, but automatic pilot decisions never get past the “what” to the “why.” Context is king. Key No. 2: Beware the biases.This sounds ominous; it should. We are all biased. But what makes it so scary is that our brains are hardwired that way. Biases obscure the Big Picture. Let’s look at the big three biases — what they are, why they’re dangerous and how we can re-program ourselves. We can’t change ourselves, but we can help ourselves. • Confirmation bias. We’re all guilty of this one, and you often see it in employment-related decisions. A manager reaches a conclusion (usually very quickly) to fire and then accepts all information coming in that confirms her initial viewpoint, or rejects or twists to her purpose all information that comes in later that is inconsistent with it. Or worse, the manager views what is actually ambiguous information as support for what she wanted to do all along. How do you avoid that? Here are a couple of things to do. First, ask a disconfirming question. Something along these lines: “Short of terminating Joe, what could we do to change his behavior or motivate him or (fill in the blank as to the goal)?” The question’s purpose is to make the manager question her initial belief. Second, build counter arguments as a matter of routine. Ask these questions of the manager: What’s the strongest or best reason to do something else? The second strongest or best reason? The third? • The availability bias. Here’s a question before you look at this: Which causes more deaths in the United States, colon cancer or motor vehicle accidents? According to a book called “High Stakes Decision,” if you’re like 86 percent of the public, you said motor vehicle accidents. The reality is quite different: more deaths result from colon cancer. The reason is straightforward: Motor vehicle accidents are vivid and stick in your mind. Simply put, we remember more recent or sensational information better than older or less sensational information. How do you avoid doing that? Know that the cause of an outcome may not be the most available factor that comes to mind. Avoid reliance on memory, and get the right facts not only in our heads, but also on paper. We see this occur in termination decisions, and the first information that a manager hears is what gets the greatest weight. • The fundamental attribution bias. This one’s a killer and consistently crimps a broad perspective. The underlying hardwiring in fundamental attribution bias is that our minds do not accept that the world is random. As popular novelist Tom Clancy says, “The difference between fiction and reality is that fiction must make sense.” But our minds want reality to make sense, so we don’t want to believe that things just happen. Our minds drive us to believe that someone must be at fault. How do we avoid this pitfall that obscures the big picture? Embrace the reality of a constellation of events. Something may not be someone’s fault. Things simply happen in life, and someone doesn’t need to lose a job because it does. Just as importantly, look for all contributing causes when something goes wrong. It’s just too easy to want to place blame on one person’s shoulders. Before blaming one person, make sure the client asks these questions: “Are others also culpable?”; “Was the employee properly trained for the job?”; “Should a supervisor be held accountable as well?”; “Did the company have any checks and balances in place to prevent what occurred?” If you don’t ask these questions pre-firing, you can bet the jury will ask them post-firing. OPEN THEIR EYES Key No. 3: Give managers a better story to believe.Open their eyes. In showing clients the Big Picture, facts are less important than stories they can believe in. Listen to what Annette Simmons writes in “The Story Factor”; “Giving people more facts adds to the wrong pile. They don’t need more facts. They need help finding their wisdom. Contrary to popular belief, bad decisions are rarely made because people don’t have all the facts. Bad decisions are made because people ignore the facts, do not understand the facts, or do not give the facts enough importance [here's a writer who knows her biases] … more facts will not help them regain perspective. A story will. A story will help them figure out what all these facts mean.” So remember this: You cannot change the facts, but you can change the story. Here’s how we learned this lesson from an associate general counsel. A few years ago, we were consulting with a company considering the termination of a high-ranking executive. The losing end of a wrongful-termination suit would yield huge exposure. So we, the associate general counsel and the decision-maker (who worked in another facility about three hours away) had a telephone conference call. The decision-maker wanted to fire the executive ASAP. Forgetting that it’s better to remind than to lecture, we started lecturing the decision-maker on why he should come to headquarters for a face-to-face meeting, that he needed to look at potential exposure to the company and that we didn’t have all the facts. The associate GC held up her hand, cut us off and calmly said: “Joe, remember that piece of machinery you bought last year for $500,000? You looked it over, talked with the key people face-to face and made a considered decision. Well, we’re talking about a $500,000 decision by terminating Jack, and as our CEO likes to say, ‘Measure twice, cut once.’” (There was a long pause.) “So, when do you want to come in so we can talk about this face-to-face?” She intuitively understood this truth: Facts don’t have the power to change someone’s story; his or her story always will be more powerful than your facts. The assistant GC gave him a different story, and it worked. Key No. 4: Ready, fire, aim.After the decision is made to terminate an employee, a CEO that we work for likes to call and ask: “So, was this a ‘ready, fire, aim’ decision or a ‘ready, aim, fire’ one? And, by the way, you know the answer I want to hear!” That just about sums up the way that executives look at these matters. So here are three pointers to remember so that the decision is a “ready, aim, fire” one. • Is the manager saying, “Gotcha!”? Difficult employees are everywhere, and perhaps they should be terminated. But all too often, we see problem employees who are terminated for minor or trivial reasons. When a manager starts saying things such as, “Now I have a reason to get rid of the employee,” you need to put the brakes on what the manager is doing. All too often we find that an employer in that situation is not terminating an employee for a good reason, but rather has a problem employee on its hands — one whom the manager probably has not adequately counseled. The manager conveniently sees a minor infraction as a way to make an end-run around the hard work of laying the proper groundwork for termination, and you know what? Employees terminated under these circumstances often bring successful suits for retaliation. • Rushing to judgment is another danger sign. There are things managers truly know and things they only think they know because of the biases. If you think that the manager doesn’t truly know the facts of a case because he or she hasn’t figured out the whole story, then here’s a simple test for you to use: Ask the manager the following question: “What facts do you have to support your belief that the employee [fill in the blank with the purported conduct]?” If the manager can’t answer the question, he or she’s not seeing the Big Picture. • Developing tunnel vision is another sure danger sign that it’s a ready, fire, aim decision. Remember reading “Les Mis�rables” in high school? Remember the detective who obsessively went after Jean Valjean for stealing a loaf of bread? Or update it and look at Fox Mulder (played by actor David Duchovny) on the television show “The X Files.” No matter what Dana Scully (played by actress Gillian Anderson) tells him, he either rejects it out of hand or argues with her about it. He and the detective suffer from the same problem: tunnel vision. While it’s entertaining to read about or see on television, tunnel vision can be devastating and is all too easy to fall into. The danger signs are focusing on the employee under investigation without looking at any contextual facts; laying all the blame for a problem on a particular employee; and deciding, before hearing all the facts, that the employee is guilty as charged. Next time a manager wants to fire someone, do a gut check and ask the question the CEO will ask you. Like most execs, he’s got the Big Picture and will expect you to. Key No. 5: Don’t nuke Monaco.Clients will ask you what to do in certain situations. In helping them see the Big Picture, aid them by asking them the following questions or go through the following exercises: • Is termination a proportionate response to the offense an employee will be terminated for? • Are we overreacting? • If we terminate, what message is sent to employees? What message do we want to be sent? What kind of behaviors do we want to encourage or discourage? • Engage in a technique known as prospective hindsight. Pretend that it’s two years from now, that we’re being sued for discrimination, and that we have to explain to a jury the process by which we decided to fire the employee and why we decided to fire the employee. (This question really clears the mind.) • Ask this: “If there were no laws dealing with employment discrimination, what decision would you make regarding the employee?” Also, termination decisions can, unlike an ICBM missile, be recalled. If the client acted without seeing the Big Picture, you always can offer to reinstate the employee, and if a discrimination charge or suit is pending, make it unconditional. It takes backbone to do that, but if you’re wrong, you should do it. Remember, sometimes wisdom never comes, so it should not be rejected merely because it comes late. Want true influence? Have your clients see the entire spectrum of facts, options and constituencies. If executives want an answer, they can do a search on Yahoo!; when they want judgment, you want them to come to you. Help them see the Big Picture, and they will. 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. Burton D. Brillhart is a partner in the firm.

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