What does your legal practice focus on and what cases are most interesting?
Constangy, Brooks, Smith & Prophete, LLP is a labor and employment law defense firm based in Atlanta, Georgia, with 29 offices in 15 states. I am a senior partner in our Winston-Salem, North Carolina, office, and my legal practice involves virtually every aspect of employment law. Specific areas of emphasis include discrimination, harassment, retaliation and wrongful discharge; trade secrets and unfair competition; drafting employment, confidentiality and noncompetition agreements; wage & hour; and ERISA litigation – with mediation or arbitration in each of those areas now constituting most of my practice. I also regularly work with companies in addressing difficult employment situations, and frequently conduct training on appropriate management practices to hopefully avoid legal problems before they occur. I am also an adjunct professor at the Wake Forest University School of Law, teaching courses in advanced trial practice and trade secrets/unfair competition law.
Of all the cases I have handled through the years, the most interesting have been those that combine unusual facts with well-settled law, or any facts with new, seldom seen or expansive interpretations of the law. Concerning the former, one of the best examples was when a standard layoff due to a corporate merger and consolidation was challenged by a group of older workers claiming their discharge was due to their age. What should have been a relatively straight-forward termination decision was complicated by a selection process that created age-related inferences that were never intended, then combined with a discharge procedure that was unfortunately perfectly scripted to one day inflame a jury. As for the latter, those cases have ranged from the current broad interpretations of sex and gender-specific discrimination or harassment claims under Title VII of the Civil Rights Act, to seldom seen public policy theories for state law wrongful discharge lawsuits.
Perhaps a consistent theme for all is that what most intrigues an employment lawyer is probably the last thing a corporate client wants. And the best recommendation I can give clients to avoid that intrigue is essentially the following: Try to create a workplace environment in which employees don’t want to sue you – and if they do, it will provide your best chance of winning. This is primarily done by getting your house in order, which is mostly a function of the following: One, have and implement fair and legal policies and procedures that are appropriate for your workplace; Two, be fair in your employment practices, even and perhaps especially when you need to be firm; and Three, remember that how you do things can be more important than what you do.
How is strategic communication incorporated when it comes to protecting your clients' corporate reputation before, during, and following legal challenges?
A company’s corporate reputation begins and ends with how it treats its most important asset – its employees. These men and women are the active agents for the company’s products or services, its quality control experts, and its ambassadors for goodwill in the community. Open communication with employees can be vital when it comes to both avoiding legal challenges and lawsuits, and protecting the company’s reputation during those difficult times. But that’s within boundaries, of course, as open communication rarely means the simple volunteering of any and all information. Rather, and depending on legal requirements and other factors invariably at issue in lawsuits or other legal challenges, companies may also have specific obligations to shareholders, government agencies, courts or the legal process itself to also be appropriately selective in their communications. While at all times ensuring that the information conveyed is truthful and accurate. This, I think, is what is meant by strategic communication – and it is a process that certainly should be incorporated in any situation where communications involve a lawsuit or other legal challenge.
That being said, a challenge for many companies is that management often needs help in determining what appropriate communications might be for a given situation. That is where solid advice and counsel from experienced attorneys and crisis communication consultants can play a crucial role. I have seen this first hand upon working closely with C4CS®
. By working together with key managers at a company, this team can identify the issues, develop challenges and objectives with a plan to meet both, and then implement that plan in a manner that helps position the company in the best way possible. All of which can have a significant impact on a company’s reputation, both outside and within the company.
How do you view the roles of traditional and social media strategy in developing and delivering effective messages for your clients?
As a general rule, corporate clients dealing with labor and employment law issues prefer staying out of the public eye. This includes both traditional media outlets such as newspapers, television and radio, and more modern communication channels such as the internet and social media including Facebook, Twitter, and YouTube, as well as the endless stream of digital news feeds and blogs. However, when faced with cases or other crisis situations that may attract the news media and the public’s attention at large, it is especially critical for companies to develop an appropriate communication strategy and targeted stakeholder messages they want to convey. And like it or not, both traditional and social media are key to that approach. This is true regardless of whether the message is a defensive response or an affirmative, proactive effort to establish the right message before it becomes clouded by incomplete or inaccurate information. In both situations, traditional and social media strategies can and should be used as powerful avenues for developing and delivering appropriate corporate communications.
Unfortunately, only the largest companies are usually equipped with managers skilled in social media, media relations, and crisis communication – and even then, they might not be prepared for a specific situation never before encountered, or the immediacy of information and misinformation gone viral with the publication of a tweet or a video uploaded to YouTube. Therefore, companies should constantly be on the alert for any aspect of their business that might attract the public’s eye, and in the world of labor and employment law the following areas tend to be the most common magnets for unwanted attention:
- Sexual, racial, national origin, and other forms of harassment, retaliation, discrimination or wrongful discharge allegations, charges, and lawsuits
- Workplace violence
- Layoffs, downsizing, and plant closings
- Major injuries from workplace or third-party accidents
- Fires, explosions, and other emergencies
- Immigration raids and illegal alien issues
- Whistleblower claims
- Labor union campaigns
Regardless of the ultimate message a company wants to convey, the steps in developing that message tend to include at least the following: One, identify the issues, audience and goal; Two, place that identification within the context of potential legal concerns; Three, determine whether any laws are being implicated and, if so, in what manner; Four, decide whether the claim is or should be disputed, and whether public perception is currently accurate, wrong or simply mistaken - and if so, is it due to a lack of information or the spread of incomplete or false information?; and Five, analyze whether there is any truth to the claim.
Simply stated, truth should always be the primary concern when delivering corporate messages. In other words, whatever is publicly said or written about a legal or other crisis must be actually and unconditionally true – no matter how much or little the information being communicated. If a company is unsure of the truth, then as a general rule its message should be limited to only what is known
to be true, even to the point of merely acknowledging the situation and how the company is now in the process of determining what happened. Companies should also remember that their primary stakeholders are their own employees, and therefore messages that become public should first be made internally absent highly unusual circumstances. Some of the most difficult situations for a company come when its own employees are surprised through traditional news sources or more current social media about specific issues that management should have initially and directly addressed with them.
All of that being said, a continuing challenge in today’s digital world of instantaneous communications and social media is that people and organizations that have not earned the right to have a dependable voice for stating the truth still raise their voices – sooner rather than later, and usually without sufficient information or thought. And unfortunately, others listen. It has also long been demonstrated that bad news spreads faster than good, and correcting misinformation is so much harder than taking the initiative to first spread accurate information. Recognizing that reality should perhaps be the most important incentive for companies in crisis mode to not only develop strategies for the more traditional outlets of newspapers, television, radio, and external or internal media releases and memoranda, all of which tend to allow more time to think and prepare, but also strategies that anticipate and monitor the onslaught of the Internet and social media. In our digital world of now rather than later, immediacy can and often does replace accuracy, and it can and often does contain messages that were never meant to be spread. So having a strategy that addresses those dynamics through traditional and more modern media avenues should be a primary goal for any company facing legal issues or other crises expected to attract the public’s eye.
How has the role of employee communication evolved and impacted corporate clients since you began your legal career?
As previously stated, appropriate employee communication is critical for any company. That has always been the case and its importance really has not changed through the years. What has changed, however, is the more recent attitude by many employees that appropriate communication means complete disclosure, that such communication is now expected, and how the internet and social media have now provided those same employees with an immediate public voice that previously never existed. This has also led to an inverse dynamic of having more information taking less time and effort to disseminate, which places added pressure on companies to do and say the right things in the right way and at the right time, especially regarding their own workforce. All of which may have different definitions than what their employees might expect.
What learnings could you share, in the age of social media, as to winning in the court of public opinion and safeguarding corporate reputation versus winning in the court of law?
Hopefully these concepts are not mutually exclusive – and it’s been my experience that they not only overlap but are almost always connected. Nevertheless, there have certainly been times when what is legal for a company to do is not what is best to do, at least not in the court of public opinion or to help safeguard the company’s reputation. And there have also been times when the reverse is true –
i.e., what is best for a company to do regarding public opinion or its reputation is not the most appropriate course due to particular legal reasons. And frankly, sometimes for other legal reasons those particularized causes cannot and should not be explained in a public forum regardless. All of which is a long way of saying that this determination invariably depends on specific circumstances too numerous to mention. However, if the principles discussed above are followed, especially those regarding truthful messages tempered by what may or may not be appropriate in a given circumstance at a specific point in time, then that’s really the best a company can do. And if that is what occurred, then truly no regrets – no matter what the ultimate outcome.