As the David Letterman saga plays out, employers across America should take some time to think about the dynamics of relationships between the top boss, say a CEO, and his or her subordinates, and how these dynamics play out in the workplace.
While a celebrity scandal won’t come across most attorneys’ desks, most management lawyers will handle sexual harassment suits. (There have been no harassment allegations made against Letterman, host of CBS’ “Late Show With David Letterman.”) Some of those suits will involve full-blown crises. For example, what is the proper response from a lawyer when the BlackBerry buzzes and an e-mail from the vice president of human resources says that an employee is accusing the boss of sexual harassment? What is the framework that should be laid out before the call? What does the lawyer need to know, from a legal and PR standpoint?
First, every boss must know this, whether CEO, partner or restaurant manager: Employees closely observe the boss’ conduct. Not by a little, but by a lot. They sense, correctly or not, that their livelihood depends on the boss. And they look for whether any other employee is getting a break or benefit they are not getting. A more sensitive barometer has yet to be invented.
This is the reason that, in my view, the top boss must not get involved with a subordinate — ever. If so, discipline disintegrates, bickering breaks out, respect is lost. And it can be worse. Some employers have a strict no fraternization policy. If a supervisor dates a subordinate, the supervisor gets fired — period. Know what? If the top boss engages in this behavior, putting himself or herself above the company’s polices, then the policies mean zero to the employees, and the boss will be deposed in every suit filed by a supervisor fired under the rule. Caution: If the top boss’ administrative assistant leaves employment and they announce marriage plans the following month, no one will be fooled. Maybe in La-La Land and the movies, but not where I live.
So, the lawyer reads the HR VP’s e-mail. Here is what I hope is already in place at the company. The boss has agreed, in writing, that in the event of an accusation of misconduct, he or she consents to an investigation by a third party and that his or her cooperation is a condition of employment. If there is an employment contract, stick it in as a clause. Do not put the burden on the VP of HR. Is there a board of directors? If yes, the attorney should provide any third-party investigation firm’s report to the board. Plan ahead to gain maximum attorney-client privilege protection. And do not confuse the CEO with the company or the company with the CEO. The lawyer represents the company. In this age of CEO worship, lawyers sometimes confuse the two. Don’t.
There may be times where several employees complain about inappropriate conduct. How about settling up with most and having them agree not to talk to the U.S. Equal Employment Opportunity Commission? Head a suit off at the pass? No way, according to the 1st U.S. Circuit Court of Appeals in EEOC v. Astra USA Inc. (1996). According to the opinion, the EEOC was investigating a complaint of a pervasive company atmosphere of harassment. The 1st Circuit affirmed an injunction, holding that “non-assistance” covenants are void as against public policy. According to the EEOC, requesting such a gag clause can be, in and of itself, a violation of the law.
What about public relations? Read “What Were They Thinking? Crisis Communication — The Good, the Bad and the Totally Clueless” by Steve Adubato. He looks at two ways to handle sexual harassment claims. One is full steam ahead, viewing the facts in one’s own favor and refusing to retreat. Another is to fly low, stay cool and settle early. From a PR perspective, the latter strategy can result in the incident fading from memory, while a take-no-prisoners approach can result in a black eye that lingers. But, speaking generally, Adubato cautions that if allegations are totally without merit, a fight should be waged. I agree: There are worse things than being sued, and one is folding like a cheap tent in the wind in the face of baseless allegations.
Some final thoughts. One from St. Paul: “To whom much is given, much is expected.” The top brass need to keep this in mind when tempted, as we all are.
On his Oct. 5 show Letterman said, “Inadvertently, I just wasn’t thinking. And, moreover, the staff here has been wonderfully supportive of me. . . .” If that is so, his statement reinforces a powerful truth: We are nothing without our networks, a support system. The lesson for CEOs is be good to others on the way up the corporate ladder — always.
When former President Bill Clinton reflected on his affair with Monica Lewinsky, he said he did it for the worst reason possible — because he could.
So from time to time, no matter what the context, a boss should ask himself or herself, “Why am I doing this?” Questions are great. They clarify. They focus. They help people see the truth behind their actions. If you are the boss, ask it.
Michael P. Maslanka is the managing partner of Ford & Harrison’s Dallas office. He is board certified in labor and employment law by the Texas Board of Legal Specialization, and he writes the Texas Employment Law Letter. His “Work Matters” columns, blog and podcasts can be found at www.texaslawyer.com. He is on Twitter at www.twitter.com/worklawyer. His e-mail address is firstname.lastname@example.org.