Gruntled Employees

More on H-P's bad behavior

Peter Lattman's always-interesting Wall Street Journal Law Blog has excellent feet-on-the ground coverage of the H-P pretexting imbroglio. Click on the H-P category link for the whole tale. Love the pickup on H-P's sponsoring an award for "privacy innovation." Not the kind of innovation you were expecting, I guess.

Unrelatedly, today's my birthday. This year I got a nice sweater. Next year I get Age Discrimination in Employment Act rights. I think I prefer the sweater.

Pretexting: a lawyer word for lying

H-P General Counsel Ann Baskins resigned yesterday in the midst of the so-called "pretexting" scandal. She signed a severance deal that lets her keep about $3.7 million in vested stock options, accelerates the vesting of another $1 million in options, and indemnifies her for her legal expenses. She then declined to testify at the Congressional hearings investigating the scandal. Some of Baskins's handwritten notes produced at the hearings suggest that she was aware of the pretexting method of obtaining personal phone records.

"Pretexting" is a method of tricking a person into revealing something by using real information to create the appearance of legitimacy. It is a form of social engineering. It is, plain and simple, lying — better planned and cleverer than garden-variety lying. No thoughtful lawyer or executive could believe for a second that it was acceptable behavior. The ongoing investigations may eventually determine what Baskins and other H-P execs knew about the pretexting. In the meantime, the rest of us can take an important lesson from this:

Employees often hurt their companies, and it is understandable and appropriate to be angry and want to do something about it. (In the H-P scandal, confidential information was leaked to the media.) But you can't let your desire for justice (or payback) cloud your judgment. The end here did not justify the means. Do your investigation, fire who you need to — but do it the right way.

And by the way: "pretext" is really a noun, not a verb. Companies and lawyers have to stop turning things into verbs. There's already a perfectly good verb for this conduct: "lying."

For more good coverage on this story, check out Rob Hyndman's technology-law blog and Dan Hull's What About Clients?

Ten mistakes employers make when using noncompetes

1. Making every employee — from the CEO to the mailroom guy — sign a noncompete.
2. Giving an existing employee a new noncompete without giving him or her something else in exchange for it.
3. Using a noncompete to protect anything other than trade secrets, confidential business information, and customer goodwill.
4. Misunderstanding what the heck "goodwill" is. (Hint: it's not your brand image; it's the customer relationships your employee is paid to maintain.)
5. Trying to use a noncompete in California.
6. Using noncompete enforcement as a strategy to scare employees out of leaving your company.
7. Failing to update a noncompete when the employee's job substantially changes.
8. Hoping that a court will scale back (but otherwise enforce) your overbroad noncompete.
9. Waiting too long to go to court to enforce a breached noncompete.
10. Trying to use a noncompete to protect against ordinary competition (as opposed to unfair competition).

What kind of a word is "Gruntled"?

OK. It isn't a word. But it should be. If disgruntled employees are more likely to sue their employers, you need to know how to keep them ... gruntled. Right?

For that matter, why aren't people ever described as being "heveled" or "kempt"? Why don't we ever hear of "advertent" mistakes (like the one the Chicago Black Sox made)? Shouldn't the opposite of "beautiful" be "beautiless"?

English has more words than any other language, but it seems to be missing a few. What are some nonwords you wish you had?

By the way: Merriam-Webster does call it a word, describing it as a back-formation from "disgruntle." But the much-derided dictionary seems willing to call anything a word. (For example, M-W says "supercede" is a word (it's not; it's a misspelling) and that "enormity" can mean "enormousness" (it can't).

Radio Shack Deletes 400 Workers, Common Sense

On August 29, RadioShack Corp. fired about 400 employees by email. The good news is that it saved the price of a ream of paper, and maybe some postage. Apparently, no one thought about the bad news — the terrible press it received for its Internet Age management gaffe. The story has been all over the media, and the blogs have had a field day with it. (Nick Roy's HR Horizons wonders if people will shop at RadioShack after this; Lori Dorn's HR Lori weighs in; Matthew Stibbe's Bad Language blog slams the wording.)

According to news reports, the email waiting for the unlucky employees that Tuesday morning read: "The work force reduction notification is currently in progress. Unfortunately your position is one that has been eliminated." (Maybe we'll talk about this ridiculous use of corporatespeak in a future post.)

In its defense, the company noted that it had warned employees that the "work force reduction notifications" would be delivered electronically, and that employees were invited to ask questions on a company intranet.

Maybe it was more efficient to fire 400 people this way. But this is an example of losing sight of the obvious consequences of callous behavior in favor of increased efficiency. Yes, it's a lot of work to do a RIF (reduction in force). Yes, RadioShack is paying severance to these employees based. Fine. But it's a big deal to lose your job. And when employees feel they were treated without respect or dignity, they are much more likely to sue. And that will cost a whole lot more than a ream of paper.

The company has defended the RIF as being necessary to "improve its long-term competitive position in the marketplace." But improving its "competitive position in the marketplace" requires attracting the best talent. Who's going to want to work at RadioShack after seeing how they handled this RIF?

About Jay Shepherd

Jay is the CEO of Shepherd, a Boston employment-law firm devoted to helping employers succeed.

Jay has been protecting employers in and out of court for 16 years, and he’s defeated some of the largest law firms in the country. He’s nationally known for his expertise in noncompete lawsuits and related business-employment litigation. Jay has defended employers large and small in discrimination cases in state and federal courts. He has taught seminars to hundreds of lawyers and thousands of employees and managers on employment-law topics from sexual harassment to wage litigation. Jay’s married to an employment lawyer at another Boston firm and has two daughters who are not employment lawyers. Jay’s written a 700-page draft of a legal thriller, which someday he may have time to finish editing.

To learn more about his firm, Shepherd, go to shepherdlawgroup.com.