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Author: Matthew Harrison

The Internet is Forever

Practical Guidelines For Employers

Involving Employees and Prospective Employees

Over the course of the last year, especially during the most recent election cycle, the airwaves have been inundated with news of individuals caught in one scandal after another involving their use of the Internet and various social media platforms.   In certain circumstances these “scandals” have led to the individuals being terminated by their respective employer.   In more extreme cases, it has led to criminal investigations.

A question I often hear from my clients is how far can they go in utilizing the Internet and social media platforms to investigate either the current or prospective employees of their business.   These clients want to utilize these investigations to address a problem before it becomes a social media firestorm that would negatively impact their business.  Business owners also want to prevent a problem in the first place by avoiding hiring a potentially troublesome employee.  

General Guidelines

In my presentations to business people on the subject, I always open the discussion with the statement “the Internet is forever.”   Any statement, posting, or email, even if deleted shortly after its occurrence, remains in existence.   There are search and cache programs designed for the very purpose of retrieving deleted items, and individuals who have seen controversial posts often will take a screenshot of the post as proof of its existence.   A business owner must assume that any posting, statement, or other use of the Internet will always exist and can be potentially accessed by others.   As such, they must act and react accordingly.

The next subject I discuss is even though the Internet and social media platforms are very public situations, an employer still needs to make certain it complies with federal and state rules and regulations concerning discrimination.   One example is Title VII of the Civil Rights Act and protected classifications outlined therein (e.g. race, gender, age, sexual orientation, religion, etc…).  Another example is disability discrimination as outlined by the Americans With Disabilities Act.   Both of these federal statutes, and similar state statutes that address these areas, would prohibit an employer perusing information that he or she would not be entitled to if requesting the information from the employee.  

Prospective Employees

Although employers should avoid use of the Internet and social media to discover protected information as outlined above, an employer is not prohibited from conducting research about prospective employees in other areas.

Researching through social media if an employee appears to be reliable, honest, speaks negatively about others, his/her emotional maturity level, criminal behavior, and similar issues are acceptable areas to research.   For example, prospective employees who post statements online such as “I lied to my supervisor about a project deadline, but he is too dumb to notice.  Ha Ha,” “I hate working with these clients,” or “I want to punch my co-worker in the face” are all legitimate social media red flags that the employer can use in the determination of whether to hire someone or not.  

When a prospective employee social media search is conducted, it should be under guidelines established by the company, which will directly outline the parameters.  It should either be conducted by one individual (such as the HR Director) or by a small group of individuals who are directly responsible for the hiring of the position in the company.   It should not be a time of an employee free-for-all to see who can find the most information the quickest.   In addition, an employer must avoid obtaining this information utilizing deception.   For example, creating a fictitious character and then having the prospective employee “friend” the character in order to gain access to information is problematic and should be avoided.

Current Employees

Often employers are caught in the crossfire when an Internet “scandal” occurs involving an employee.   The best defense in this situation is a good offense.

First, employee handbooks and employment agreements should include sections and provisions concerning an employee’s conduct.   Emphasizing that as an employee they are representing the company and that certain negative actions and behaviors will have a detrimental effect.   As such, negative actions and behaviors both inside and outside the workplace may directly impact their employment and be a cause for termination.   Putting an employee on notice from the start is both an effective deterrent and affords protection for the employer if something does occur.

Second, if a negative event has occurred, the company should have written procedures in place for a quick investigation and determination of what is to happen next.   In addition, these procedures should designate certain company personnel to quickly investigate and address the issues as quickly as possible.   The Internet works at the speed of light with a ripple effect that can turn into a tsunami if a company does not address a situation quickly and effectively.

In addition to the circumstances discussed above, sometimes employers learn of the actions of employees through social media that may not involve a “scandal.”  Nevertheless, these actions impact the company and can create personnel issues.   This below example, that I have heard of more than once, outlines this situation:

An employee contacts his/her employer (usually outside of business hours) notifying that a family member is facing a medical or other crisis.   As such, he/she must take several days off to travel across the country to take care of the crisis.   The employer accommodates the request and makes arrangements for others to complete the work previously assigned to the absent employee.   Shortly thereafter, the employer discovers (usually by information from other employees) through social media sites that that employee is not taking care of a family crisis.   Instead, he/she lied about the crisis and is in Mexico with their significant other on vacation.

Under this example, the employer is within its rights to trigger their investigation process and to determine whether termination is necessary.   The primary consideration is to follow the policies and procedures that are in place.

Conclusion 

In the fast-paced social media climate that is now in existence, a business needs to be aware of its impact on employees.   A business with established principles and guidelines in place for these occurrences (and to prevent troublesome employees  from being hired in the first place) will both allow for these matters to be properly investigated and also avoid running afoul of statutory mandates.

© 2017 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

A Small-Town Mechanic’s Wisdom

 

I was raised in a small city with a population of less than 15,000.   For most of my childhood, it was literally a “one stoplight town” that had eventually graduated to three by the time I left for college.   Growing up in a small town certainly has advantages and disadvantages.   One advantage is that a small town is often populated by unique individuals that you would never meet in the busyness of a large city.   These individuals, through tough times and personal experiences, have developed a common-sense perspective often missing today.

One group of individuals I remember who possessed this common-sense perspective were the owners and mechanics at a local gas station.   It was a Cononco station in an older building consisting of two sets of gas pumps (one full service and one self-serve) and two mechanic’s bays to maintain and repair automobiles.   It was my grandfather and father’s service station of choice because they trusted the mechanics and owners.  I remember as a child sitting in the chairs in the waiting area, which was also the office, cash register, old soda vending machine, and shelves to display oil cans and promotional materials.   While waiting for the oil change or other repair work on our vehicles to be completed, I noticed that it was often a stopping place for old-timers in the town who would purchase gas, a soda from the vending machine, and stay and talk for a while.

The desk in the office/waiting room included the service paperwork and cash register as well as pictures, stickers, and plaques.   Most of these consisted of humorous sayings about fishing, hunting, and cars.   One that I remember to this day was a plaque that simply stated:

Pay me a little right now

Or pay me a lot more later

This not-so-subtle statement was to highlight the importance of preventative maintenance from a car mechanic’s perspective.   They knew that keeping the car up to date on minor service and repairs (e.g., oil changes, tire rotations, filter replacements, etc. . . ) prevented the major car repairs from occurring.    In essence, paying the few dollars on occasion prevented the larger, unexpected, and unmanageable bill from ever occurring.   Through years of experience and multiple examples, the mechanics understood this fundamental truth.

I have often observed business owners not recognizing this fundamental truth.   Businesses and their respective leaders often either ignore and consistently choose not to perform this “preventive maintenance” on their business.   They justify their decision because it is a low priority or to save a little bit on the bottom line.   Rarely, if ever, does this approach benefit the business in the long-run.   Instead this approach eventually leads to events that jeopardize the long-term health and survivability of the company.

I often see this behavior when business leaders choose not to perform basic legal preventative maintenance.   Preventative legal maintenance for businesses includes areas such as, updating pre-existing contracts, modernizing employee policies and manuals, keeping abreast of new laws and regulations, the initial negotiation/development of new agreements, and the review and drafting of new contracts between parties.   In these circumstances, these business leaders/owners place legal maintenance at a low priority.  They assume that the status quo will continue to work, what they have now is sufficient, they can independently draft or negotiate the agreements on their own, and/or the legal work would be expensive.   Unfortunately, it is usually only a matter of time until this lack of proactive maintenance leads to a major legal dispute, complaint, or litigation that has the potential to lead to the ruin of the company.  Once a dispute has reached this stage, the legal costs of correcting the issue or defending the corporation in the dispute is now exponentially more expensive than the preventative legal maintenance costs would have been.

In that way both an attorney and mechanic’s approach is the same.   We do not want to see a business breakdown occur that could cost substantial fees, costs, and expenses to correct.   As an attorney representing clients, I will always prefer and recommend that regular legal maintenance occur.  The costs are substantially less than the alternative and it better protects the client when an unforeseen event occurs.

© 2017 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

 

THE IMPORTANCE OF A COMMON NARRATIVE

 

As a business attorney, I am typically involved in legal issues involving corporations and those who create and own them.    During my several years in practice, I have observed both successes and failures.   A question I have often though is “what is the formula that makes a group/business succeed where others have failed?”   Is there a secret ingredient that runs through individuals, groups, or businesses (large or small) that binds people to work together to achieve a successful end?

What makes some individuals, families, or groups of people effective, resilient, and happy?   Why are certain people or businesses able to overcome obstacles, challenges, and succeed when others have easily failed?  What are the proven counters to the forces that want to tear apart and how does one prevent entropy/apathy that often occurs? 

Researchers and business experts have been studying this question for over 25 years.   They have arrived at a few specific conclusions.  The research has universally arrived at the determination that the single most important element for a family, group, or business to counter the effects of the natural world may be the simplest action of all—the development of a narrative.

What is a narrative?   In basic terms, a narrative is a common history that a family/group shares.   The narrative describes who they are, where they came from, and what is important to them.   The narrative demonstrates what they are made of and highlights that one can navigate extremely difficult obstacles and survive (even succeed) because others before them have faced almost impossible obstacles and still could overcome.    Those with a common narrative are better able see beyond themselves and (because of their ability to do so) develop a core strength.

Researchers have demonstrated in multiple evaluations and interviews that people and groups who have a strong narrative fare better when challenges come because they have an “polar star” to guide them and an “anchor” when confronted by a serious problem or event.   A “polar star” is found in examples of a family or group’s shared history where individuals can see the successes of their predecessors and model their own lives by them.   An anchor is the ability, when difficult challenges arrive, which allows the individual or group to point to challenges that others have faced in the past as examples of how “this too shall pass.”   Therefore, these individuals and corporations are more positive and develop a resiliency to face problems head on.

Some of the early research in this area involved children and was later expanded to larger groups.   The observations made of the children demonstrated that the stronger the child‘s narrative and family history, that he or she had a stronger sense of control over their individual lives.    They develop a “strong inter-generational self” because they realize that they belonged to something larger than themselves.  As a result, they had higher self-esteem and believed that themselves and their family would be able to overcome the problems they faced.   The children became more resilient because they were part of something bigger than themselves.

When September 11th happened, the researchers returned to the children they had observed previously who lived in the area of the tragedy, who had witnessed the events, and many had family members affected by those events.   After this very traumatic incident, the researchers directly observed the ability of the children to cope was a direct result of those who had a narrative and those who did not.

The fundamental conclusion is this:  If you want to have a successful family, group, business environment, or corporation, there must be a clear telling and retelling of a narrative of both positive elements and the ability to bounce back from difficult ones.

How can concept apply in business?   When a group of individuals comes together for a common goal and purpose (such as working for a company), they are usually more effective in good times, adapt when changes occur and are resilient when negative.    A common goal is often described by utilizing a common narrative that everyone can understand and, in most circumstances, relate to.

The history of Harley-Davidson motorcycles is an excellent example of a corporate narrative.   The beginning of Harley-Davidson is a story of middle-America with William Harley and William Davidson developing and manufacturing their first motorcycles in a 10 x 15 wooden backyard shed.   It demonstrates the independent and inventive nature of the company, which most of its riders share.  It also helped in the development of a brand based on customer loyalty. 

The narrative is seen throughout the corporation.   The history is prevalent in their retail stores with displays concerning its founding, pictures of the shed, and classic motorcycles throughout the stores.  The black color, the logo, and font utilized in its early days continue be reflected throughout their products.   The look and style of their motorcycles also point to their past.   They are not just building and selling motorcycles to travel from point A to point B.    Instead they are building a brand that can be recognized and lore that is passed to future generations.

Through its various ownership changes, corporate restructuring, recessions, the Great Depression, and when times seemed bleak for the company, it often fell back on its narrative to keep in business.  In basic terms, the success of the company is based on the success of its narrative.

 I would suggest you take some time and think about your narrative.   What makes you and your business unique?   What can you point to that can become a foundation for success.   Developing a narrative will provide a north star for guidance in times of growth and success and an anchor for stability in times of difficulty.

© 2016 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

Why Not? A Thanksgiving Business Story

 

From my experience representing companies and business owners, I often observe general themes that all successful businesses possess.    It does not matter the type of business, whether is started in a garage or with investors, or the actual business experience the owners hold.   Often a successful origin of a business begins with the question “why not?”   

Successful businesses are usually started as a solution to a specific problem.   Often when individuals see problems or issues that they determine  are insurmountable or unassailable, they give up, move on to something else, or decide to travel an apparently easier path.   Whether the problem is technical, scientific, or more general in nature, this mental barrier prevents progress.

The difference is that a successful businessperson sees a problem and reacts to it differently.   Instead of giving up, they ask “why not?”   “Why can’t the problem be solved?”   “There must be a way to overcome this problem.”   “What if we try this approach instead?”   “What if we think of the problem from a different perspective?”   Many successful businesses have been created out of attempts to answer these basic questions.

In fact, history is filled with examples of successful individuals and businesses with this “why not” outlook.    A quote by Thomas Edison highlights this attitude:

I have not failed 10,000 times.   I have not failed once.   I have succeeded in proving that those 10,000 ways will not work.   When I have eliminated the ways that will not work, I will find the way that will work.

A successful person does not see a barrier.   Instead, they see a problem that can be solved—the solution has just not yet been discovered.   Instead of an obstacle, they see an opportunity.

I am reminded of one example of this approach around Thanksgiving.   It involves a children’s book and an idea based on “why not?”    When I was young, my favorite Thanksgiving book was Cranberry Thanksgiving by Wende and Harry Devlin.   It is story about Thanksgiving dinner at grandma’s house, a handsome and charismatic stranger, and the uninvited and unsavory guest, Mr. Whiskers.   Grandma’s famous and secret cranberry bread recipe is in danger of being stolen, but is saved by an unlikely hero.    I still can picture the book being read to me in school as I made turkeys with the shape of my hand.   It always brings back fun childhood memories and was a favorite of my younger sisters and brother as well.

Years passed and my eldest child was born.   For his first Thanksgiving, I began my search to purchase a copy of this book.   Unfortunately, I quickly discovered that the book was out of print, the Devlins had passed away, and Cranberry Thanksgiving had been out of the market for several years.   In my search for the book, I found used copies of Cranberry Thanksgiving being sold for up to $150-$200 apiece.   These copies were being snatched up by parents, similar to myself, who wanted to share their favorite childhood books with their own children.

Where I saw a barrier to purchasing a cherished childhood book and memory, Jill Morgan saw a business opportunity.   She had a similar experience to mine when she attempted to locate her favorite children’s book to read to her own children.   Instead of moving on, she asked “why can’t these good children’s books be published and find new homes?”   With that question fresh in her mind she founded Purple House Press whose mission it is to locate and publish children’s books that have been out of print and lost to time.   With this purpose in mind, Purple House Press tracked down copyright holders to classic no longer published children’s books, usually by communicating with authors who had long-retired or the spouses and children of the deceased authors and illustrators.   After obtaining the appropriate rights, Purple House Press would republish and sell these books at a fraction of the cost for which the used copies were being sold on auction sites.  

The authors and illustrators (and/or their families) were happy that their books could find a new audience.  Parents were also happy that they could share their favorite books and memories with their own children.   The Purple House Press approach has been a success and attracted positive publicity from major publications and news organizations as lost children’s books are being rediscovered by a new generation of young readers.  As a result, Purple House Press has sold well-over 500,000 books and publishes several rediscovered books a year.  Where others saw a barrier or no solution, someone else saw an opportunity.   Success then followed.

One of the books republished a few years ago by Purple House Press was Cranberry Thanksgiving.   I eagerly purchased multiple copies and presented them to my siblings.   Now this beloved childhood story is being read by the next generation of my family members each Thanksgiving.

cranberrybooks2

This Thanksgiving I propose that you take a problem or issue that has been a barrier to your business.   Then, say to yourself “why not” and view the problem from a different perspective.    You will be surprised with the results. 

© 2016 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

Breaking Up is Hard to Do . . . Business Partnership Issues

 

When I first meet with a group of prospective partners who have an idea and want to create a business, one of the questions I ask that often receives the most unique reaction is “what would you like to have in place if this partnership does not work out.”    Often times, the prospective partners, who are still in the afterglow of their new idea and the thought of a business venture, don’t want to discuss if it does not work between them.    They also do not want to discuss what to do if a personality issue or other conflict impacts the business and their chance to be successful.   However, in reality, it is essential that this discussion occur, and key decisions are made before the business is created.

Why is Preparing for Future Disputes Important?

During this initial discussion, I tell these prospective partners that there are three general categories of circumstance that will cause stress and conflict within a business partnership.   These are:

  • Failure of the business

When the business lags or begins to fail, partners start to look to each other to place the blame.   Rarely does a business partner state “this is all my fault.”  Finger pointing begins in earnest between the individuals.

  • Success of the business

Money and success often bring out the extremes in people’s personalities.  Conflicts escalate when the dollar amount is higher.   Rarely does a business partner state “I give all the credit to my other partner.”  Pride begins to impact the business.

  • The business remains the same

Business, like nature in general, abhors the status quo.   Stagnancy is the precursor to problems with the business.  If you are not moving forward, you are actually moving backward.

After I discuss these three scenarios, which can impact any business, they realize that it does not matter the circumstances or good feelings of the moment, it is best to address the question now and have the proper preparations in place.

Strong Corporate Documents and Legal Framework

One of the keys to avoiding partnership issues and future disputes is to both define the business relationship between the partners, and the procedure that is in place when an issue occurs.   This is accomplished by the operating documents created at the initial corporate organization of the business.   These documents may include, a partnership agreement, an operating agreement, and specific corporate bylaws or policies enacted during the first corporate meetings.  

These operating documents provide the proper framework for the business, outlining authority and who is responsible for certain items.   They also will provide the framework to address issues that arise for the business and how disputes will be addressed.   When a business partnership has defined their expectations and individual responsibilities early, the odds of misunderstandings decrease because everyone knows their responsibility, everyone knows the procedure if there is a question, and everyone knows what they are entitled to if the business dissolves.

Even if there are no issues or disputes between the business partners, a strong corporate and legal framework will assist when unexpected contingencies occur.   For example, these documents will address what procedures are to be taken when there is a medical situation, disability, or death of a partner.   They can also provide the framework when an unexpected economic, nature disaster or other development occurs, which often requires decisive action in order for a business to survive.

Conclusion

Although it may seem counterintuitive to prepare for a partnership disputes before a business has begun, it is actually essential that this type of preparation occurs.   If fact, completing strong corporate documents and a legal framework to address these contingencies, increases the likelihood that these negative effects can be avoided.

© 2016 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.