Posted on July 29th, 2009 by Tim Eavenson | No Comments »
Filed under: ., HR Issues, The Financial Crisis | 
From time to time, I will be posing two questions to varied members of the labor & employment law conversation. If you have suggestions for people who should answer A Couple of Questions, send me an email and let me know who they are.
The first installment of “A Couple of Questions…” goes to Brian D. McCarthy, Chief Employment Counsel at the risk management powerhouse Arthur J. Gallagher & Co. Before joining AJG, McCarthy spent 10 years on the other side of the table, as a business-side employment attorney at the Labor & Employment firm Franczek Sullivan (now Franczek Radelet).
No suprise, then, that Brian gets the series going right with insightful answers about the relationship between inside and outside counsel:
CE: Okay. A couple of questions. Here we go.
1. What is the most important factor in maintaining a good relationship with a corporate client?
BDM: That’s an easy one. Make me think of you as an essential part of our business.
You can do that by demonstrating a desire to understand our business model and our specific objectives. Don’t be a contractor; be a teammate. Respect our goals and make them your own, without simply rolling over (this is not Burger King; the client is not always right). Maximize my confidence that you will handle my business the same way I would handle it – better, even – because that is why we send work out in the first place. These are the things that will truly build up your relational capital with corporate counsel.
All that other stuff that shows up in your high-end, four color glossy firm brochure? That’s important, too – don’t get me wrong. I demand a high level of legal expertise; an ability to meaningfully and practically communicate that expertise; a command of pertinent decisions, regulations and trends; transparent value in staffing and billing; and willingness to understand our business model and specific objectives. But these qualities are the sine qua non, the absolute preconditions, of getting hired and staying hired by my corporate legal department. They are only facets of the bigger picture we see in our favorite outside counsel, the “go-to” lawyers with whom we actually look forward to working.
Here’s a simplified test: your corporate counsel client assigns you a piece of work in the late afternoon. How does the matter weigh on your client that evening? Over the weekend? On Monday morning? Is your in-house client calm, cool, collected and at peace with the world? If not (or if you can’t answer that question), there is definitely room to improve the relationship. Obviously, this simplification won’t apply to a bet-the-company case or your first assignment from a new client, but it’s a good general barometer.
And the best news? I’m a lot more likely to forgive and forget those inevitable missteps if they are made by one of my go-to lawyers.
2. Has the recession changed your perspective on outside counsel?
BDM: No question it has.
Corporate counsel who were previously focused on value and costs are becoming positively obsessed. Many are simply drawing the line and saying: “I won’t pay for this anymore.” Computerized research? Forget about simply passing on that overhead anymore. Charges for faxes – are you kidding? Gone are the days of dozens upon dozens of billable hours (let’s face it, mostly inexperienced associate hours) that are unconnected to realized value.
I’ll happily pay high rates for high quality and relevant experience. Quality legal representation can be costly. But I will be scrutinizing the value provided more closely than ever before. I’ll be looking to non-law firm consultants, contract attorneys and assistants and other nontraditional legal professionals who can do most of the work of associates in any number of disciplines – at a mere fraction of the cost.
We could all take a lesson from the makers of “Borat,” who got big press, and saved a bundle, with their Indian off-shoring of legal work like research, litigation support, discovery, contract drafting and patent writing. I’m not suggesting that most of my work could be sent to India, but I like that thinking.
Let me add that go-to lawyers, like the ones I talked about above, are the first to point out value that might be had from alternative staffing, billing and sourcing arrangements. They concern themselves with hunting out and adding value to our relationship. The result? I now expect those suggestions from my business partners. I would encourage other corporate counsel who aren’t getting them to pointedly ask outside counsel, why not?
Posted on May 12th, 2009 by Tim Eavenson | 2 Comments »
Filed under: ., HR Issues |
I recently stumbled across an article on the usually-great Business Management Daily with the following title:
Offering a job? Do it the legal way
First off, I know what some of you are thinking, and don’t get ahead of me.
According to the article, “your hiring managers could be inadvertently locking your organization into an employment contract with the new hire. It’s a common mistake, and only a few words can send you down the wrong path.” I know, it’s scary. Even more frightening: “Employers that use written job-offer letters run the highest risk of creating implied promises.”
Apparently, all of this misery at the hands of your new hires can be avoided if you follow six simple steps, including “don’t imply job security“, “don’t cite annual salary figures” and “don’t describe job responsibilities.”
Yes. You read that right. When you hire someone, no matter what you do, do not describe their job responsibilities. Which will be easy, since you won’t be one of those dumb employers putting their whole business on the line by using written job offers. Oh, and you should definitely “clarify that continued employment depends on several things” like drug tests and nondisclosure agreements.
In reality, the list is 100% accurate, and each point speaks to an area where employers truly have gotten into trouble in the past. I mean, written policies really can become employment contracts when a case goes to court. And job descriptions can be a roadblock to a defense. So what’s the problem?
Let’s summarize: the gist of the article is that, if you want to do things “the legal way” when you offer your excited, ambitious new hires a job, don’t tell them their annual salary or provide them with a description of their responsibilities, and make sure they understand that they will need to take a drug test and sign a nondisclosure agreement if they want to work for you, but definitely don’t write out anything official.
And we wonder why our clients get confused.
Here’ s an observation: The only things that people talk about doing ”the legal way” are things that are 90% illegal. Come on, you’re offering someone a job, not burying bodies or growing pot.
For all its legal accuracy, this article embodies one of the biggest problems clients have with their HR lawyers: too much law, and not enough HR. Let’s say you go with this plan – what will happen? You may protect yourself from some litigation, but the price will be all of the fire inside your fresh new hire, which will get swallowed up in confusion and frustration.
And let’s think about this for a second – who sues employers? People who are frustrated. Or confused. Usually both. So don’t be so sure you’ll avoid that litigation, after all.
Does this mean you should just do whatever you want, write a dollar amount and a promise on a napkin that your new hire will have a bright future at your company and have her sign it? No. Definitely consult a lawyer, and follow their advice ardently.
But remember that conversations with attorneys aren’t one-way streets. There’s usually a few different ways to keep yourself safe, and if you’re worried that legal advice is going to deflate your workforce’s enthusiasm, your employment lawyer should know. And care.
Which brings me to the lawyers. I think it’s clear that sometimes answering a client’s employment law question takes more than just analyzing the law. Your client could follow these steps and be safe, but would they grow their business? Would they repel top talent in the process? I think every answer should start with an understanding of what the client’s goals are. Otherwise, your solution could cause more problems than it solves.
Employers: If you are one of the short list of companies out there actually making job offers (so McDonalds, the Government and…) please, please don’t delete all of your job descriptions or stop offering written hiring packages. Remember that the #1 way to avoid litigation is by nurturing satisfied employees. Their first days should be enveloping, not exclusionary. Even if the latter is “the legal way.”
Posted on April 8th, 2009 by Randy Enochs | No Comments »
Filed under: ., HR Issues, Labor Law |
The Wall Street Journal has a story today about the boom in workplace legal advice spawned by recently enacted and pending legislation in the labor and employment law arena. Of particular interest to employers is advice on legally preventing union organization due to the Employee Free Choice act looming in Congress currently.
The article points out that labor lawyers are using EFCA to their advantage:
Labor consultants and lawyers are looking to profit from interest in the Free Choice Act by briefing companies large and small on a range of matters such as complying with current and recently enacted legislation, and how to detect union organizing and prevent it without breaking the law. Another pressing issue is whether companies have opened themselves to union organizing drives because they have cut jobs, pay or benefits to weather the economic slump.
Now the question is: if the Free Choice Act falls apart like it seems it might, or gets negotiated into a watered-down shell of its former self, will the offshoot work dry up, too? Or worse – will clients, having just spent precious money on EFCA training (or as the AFL-CIO calls it, “fear mongering ” to sell “products”), feel squeezed and back off?
To be sure, EFCA will mean across-the-board changes for most companies’ labor policies, and it should be given the weight it deserves. But if the economy has taught us anything, it’s the need to balance consumers’ emotions with their actual needs.
99% of clients seeking L&E work out of fear probably do need help, many more than they realize. It’s our job as their lawyers to get it to them without exploiting their fears.
