First Thing We Do: Let’s Kill All The Lawyers
I know what you are thinking. This seems like an odd title for an article by a lawyer in a law firm's newsletter. Not to mention the fact that it has nothing at all to do with employment law.
But give me a chance to explain. Depending on who you talk to, William Shakespeare's oft-quoted passage in "Henry VI, Part 2" is either an indictment of lawyers meddling in society, or the finest form of flattery indicating the important role lawyers play in ensuring the rule of law. I'll bet you know which I think it is.
But to the point.
I ran across an interesting article in the online version of the Los Angeles Times. In the edition of January 17, 2008, Staff Writer Molly Selvin posted an article entitled, "No legalese in this handbook."
See? We are going to talk about employee handbooks. Still, what does that have to do with Shakespeare? Patience, dear reader, patience.
Selvin describes the Tribune Company's, new employee handbook as "a document that's nothing like the mind-numbing, lawyered gobbledygook in most corporate manuals." Selvin goes on to quote a recruiter and consultant as saying of the handbook, "I don't think a lawyer got their hands on it, and that's fantastic."
Selvin says that the new Tribune handbook, which she calls the "handiwork of Randy Michaels, Tribune CEO for interactive broadcasting" (how's that for a fancy job title?) is a step toward getting the Tribune Co.’s corporate culture to reflect the attitudes of Tribune's new CEO, Sam Zell.
In an e-mail to employees, Zell described the handbook as "shorter and more direct than its turgid predecessor," reflecting trust "in your judgment and in each other." Selvin's article goes on to note that some employment lawyers, while applauding Zell's attempt, believe that he may have created a legal minefield.
So, now you are wondering what I think of the Tribune's new handbook. I’ll bet you think you know the answer. Maybe not.
I read the handbook (you can find it online) and first off, if Selvin or her quoted consultant thinks that a lawyer did not review the handbook, she is taking the handbook out of context, just like the lawyer-bashers who quote Shakespeare. The Tribune handbook is certainly innovative, but it was clearly reviewed by a lawyer or two. In fact, Zell himself, while not practicing law, has a law degree from the University of Michigan. In other words, context people look at the context. Sort of a long way to go just to quote Shakespeare, wasn't it? Stay with me.
There is no doubt that this handbook is different. It starts like this:
"Rule #1: Use your best judgment. Rule #2: See Rule 1. That's it. That is the one hard and fast rule. Unless a serious mistake was made when you were hired, you have pretty good judgment. You know what it takes to succeed. You know that honesty, reliability, commitment, teamwork, and personal responsibility are essential to superior performance."
Now if it stopped right there, I would grant you that the handbook would be innovative. It would be pretty stupid, too. And I might agree with the employment lawyers quoted in Selvin’s article who question the wisdom of an employee handbook that is, to say the least, irreverent.
But the handbook does not just stop there. I’m not here to question Zell's wisdom in drafting his employee handbook this way. After all, Zell is a pretty smart guy. According to Wikipedia, he is a "U.S. born billionaire and real estate entrepreneur." Now I know being a billionaire does not automatically make you smart, but then again I am not a billionaire.
That aside, I do know a thing or two about employee handbooks. And Zell just might be on to something here. First of all, the handbook has all of the basics. In addition to Rule #1 and Rule #2, it has an at-will statement, an EEO statement, a disability statement, a policy against harassment, a personal relationships policy, a drug policy, a conflicts-of-interest policy, a safety policy, an overtime policy, an FMLA policy, a medical leave policy, a military leave policy, a jury duty policy, a workers' comp leave policy, an e-mail, computer and confidentiality policy and a reservation of rights.
What else would you need? On top of that, Zell does all of this in just 11 pages. That's right, just 11 pages. And these are not 11 pages packed with text so small as to render it unreadable. The whole thing has, according to Selvin (because I didn't count them myself), only 3,663 words. This article has 1,560 words (give or take, if you choose to count). I certainly would not have been as flip as the Tribune is with its harassment policy and they may even have gotten some of it wrong, but that’s easy to fix.
On the other hand, I think the personal relationship policy is great. It says:
"Under Rule #1, you may want to think twice before you enter into an intimate relationship with a co-worker. When you start, it might seem like a good idea. It's when you stop, or the wrong people find out (and they will) that you could discover that perhaps it wasn't." Frankly, I think that is a great way to say what most of us (should) already know.
So, should we all run out and rewrite our handbooks to try to make them like the Tribune's? No. But we should take a look at what we have. The best lesson we can learn from the Tribune is that a handbook is no good if all it does is sit on the shelf.
When you sat down to write yours, did you really want one that no one would read and that was simply an exercise in covering the corporate backside? I don't think so.
A handbook at its worst is just that: A book that is never used except when the company gets sued. Yes, you need that at-will language and that harassment policy and the FMLA policy. But it does not have to read like the tax code and it surely does not have to be as long as War and Peace.
At its best your employee handbook can and should be a document that your employees and supervisors actually read and use. That is a reflection of your corporate culture and that helps people understand what you, as a company, are trying to accomplish. It seems to me that is what the Tribune's does or at least tries to do; only time will tell if it works.
I think the other thing that Zell does here, which the article does not point out, is recognize that the workforce is changing. The Baby Boomers are leaving and they are being replaced by a generation that grew up with a computer. Blogs are the rule of the day and they have drastically changed the way people communicate. In short, the old rule-driven handbook simply may not be appropriate for today's workforce.
I have written some very "lawyerly" handbooks in my time. Long and boring. I've also written some short and to-the-point ones. And now that I think of it, they were probably the better effort.
I'm not sure the companies with the short ones get sued any more often than the companies with the more cumbersome ones. What’s really interesting is I don't ever remember sitting down with a client and asking what they were trying to accomplish with their handbook. If I did, I wonder how many of you would say, "I thought we needed one so here I am?"
You are right. You do need an employee handbook. But what are you really trying to accomplish with it? If the answer is coverage of the corporate backside, we can do that.
But what if it's more? Can we write one that reflects your company's values without putting you to sleep? It doesn’t have to be funny like the Tribune's, but could it be fun if that is what your corporate culture is? Does what you have now reflect that culture or what you want it to be? Or maybe you just want your handbook to be a little shorter and more user-friendly? And then again, maybe you are in an industry that is more rules-driven and needs a handbook that reflects that image. Nothing wrong with that either.
Here's what lawyers do (despite what Shakespeare had to say): We can give you a handbook that fits what you want and need and still give you the legal protection that you need in today's legal climate.
So here is my sales pitch. Want a handbook that people can use and that is of use to you? Before you go out and do grievous bodily harm to your lawyer, give us a call. We can help. Really.