Gruntled Employees

More Orwellian rules on writing

Last week, I wrote about George Orwell as an unlikely writing teacher for lawyers, managers, and HR pros. In addition to his six rules for simple writing, his 1946 essay "Politics and the English Language" offers six questions all scrupulous writers should ask themselves:

1. What am I trying to say?
2. What words will express it?
3. What image or idiom will make it clearer?
4. Is this image fresh enough to have an effect?
5. Could I put it more shortly?
6. Have I said anything that is avoidably ugly?

Of course, you don't have to ask these questions, says Orwell:

But you are not obliged to go to all this trouble. You can shirk it by simply throwing your mind open and letting the ready-made phrases come crowding in. They will construct your sentences for you — even think your thoughts for you, to a certain extent — and at need they will perform the important service of partially concealing your meaning even from yourself.

Big Brother might not be watching you, but your readers — your clients, your employees, your shareholders — are paying attention to your words. So should you.

The myth of courtroom experience

Robert Ambrogi has a nice post at Legal Blog Watch that poses the question, "Is Courtroom Competence Going Kaput?" Robert cites a recent Boston Bar Association study that concludes that the decline in civil-court jury trials is leading to a dwindling supply of experienced trial lawyers. (By "trial lawyers," I mean lawyers who try cases — not the euphemism for the tort-plaintiff bar.)

The study, encumbered with a wordy (and underhyphenated) title "Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon," focuses on the Bay State but applies nationwide. It expresses concern that more lawyers "lack the confidence and acumen needed to execute the sometimes unpredictable and tumultuous nature of conducting a trial." And it suggests a number of changes to help newer lawyers get more trial experience.

But friend and colleague Lee Gesmer, of Boston's Gesmer Updegrove LLP (celebrating its twentieth anniversary this month — no mean feat), notes in his Mass Law Blog that diminishing jury trials isn't a bad thing for our clients. Lee attributes the drop in jury trials partly to an increase in clients' sophistication. Our clients are now more likely to have in-house counsel watching out for their interests. Clients are becoming more concerned about rising litigation costs (and jury trials are almost always more expensive than other outcomes). And courts are often too slow; businesspeople want to move on, whle litigation is all about reliving the past.

Lee's summing up deserves another look:

I tell clients from the first day a dispute arises that, no matter how angry or enthusiastic for a trial they may be, their case is likely (statistically speaking) to settle, and that they should constantly keep settlement options actively in mind. I tell them that the only reason a civil case should go to trial is if one side badly misjudges the facts or law underlying the case. If the case is close, it should settle (why take the risk of an all or nothing gamble?). If it is one-sided, it should settle, since it should be clear that one side is likely to lose.

Conversely, I once heard a senior partner of a large national firm tell a seminar audience of lawyers that if you ever had the chance to do a jury trial, you should seize the opportunity because they can be a lot of fun. I agree: they can be a lot of fun. But for the lawyer, not for the client. I'm sure that partner's clients wouldn't have appreciated those remarks. Instead, more clients should hear words like Lee's.

Orwellian lawyers

The adjective "Orwellian" usually refers to an abuse of the English language for political or bureaucratic reasons. George Orwell's Nineteen Eighty-Four is remembered in part for its description of Newspeak, a bastardization of English designed to oppress its speakers and limit their ability to think independently and critically.

Kind of like legalese.

As Rutgers professor William Lutz — himself described as the "George Orwell of the Plain Language Movement" — writes, "Language is power, period. The lesson of Nineteen Eighty-Four is that those who rule the language, rule.... The language of the lawyers, of the politicians, of the intelligentsia, is supposed to make [others] feel inferior."

But calling that kind of language "Orwellian" is ironic. Orwell hated that kind of language abuse. In his 1946 essay "Politics and the English Language," he listed six rules for writing good, plain English. The respected London newsmagazine The Economist starts out its own Style Guide with the six rules. Lawyers, managers, and HR professionals would profit from adopting them:

1. Never use a metaphor, simile or other figure of speech which you are used to seeing in print.


2. Never use a long word where a short one will do.


3. If it is possible to cut out a word, always cut it out.


4. Never use the passive where you can use the active.


5. Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.


6. Break any of these rules sooner than say anything outright barbarous.

10 ways to protect your company's trade secrets

Your people are your most important asset. But your trade secrets are up near the top of the list, too.

Just what are trade secrets? They are the information that would damage your company if your competitors got a hold of it. What can steps can you take to protect them?

Here are 10 actions you can take to reduce the risk of trade-secret theft:

1. Keep secrets off your website.
   Common sense suggests that if something is on your corporate website, it can’t possibly be a trade secret. Yet we’ve seen companies try to argue that it is. For example, a company might claim that customer lists are confidential, despite their website trumpeting the names of their customers. If it’s really a secret, keep it that way.


2. Use password protection on your trade secrets.
   If secrets are going to be kept on your company’s computers, make sure your password protections are up to date. Have a strict password policy, and make sure everyone follows it. Once employees start sharing passwords, your secrets are at risk. And make sure employees don't write them down. (See this post about employees who do.)


3. Use a shredding service.
   Many secrets find their way onto paper and end up in employees’ wastebaskets or, even worse, recycling bins. Giving employees personal shredders is an improvement, if everyone uses them. A better solution is to engage a professional shredding service, along with a strict policy for using it.


4. Have a powerful email/internet/computer policy.
   Most trade secrets spend much of their lives in electronic forms, and smart-but-unethical employees can use today’s technologies to help these secrets find their way to your competitors. Have a strict digital policy that carefully spells out that the computers are company property, and that employees have no right or expectation of privacy in what appears on their screens and hard drives.


5. Keep secrets under lock and key.
   It’s basic common sense, but it’s amazing how many employers fail to lock up their trade secrets. If secrets are kept in file cabinets, make sure the drawers are locked when not being used. Install locks on office doors and desk drawers to protect trade secrets kept in employees’ offices. And keep track of who has the keys.


6. Have — and use — a company ID system.
   Larger companies have so many employees that it can be hard to keep track of who’s who. To prevent strangers from snooping around your offices, implement a company identification system. And make sure employees wear or carry their ID badges. A system that isn’t used consistently offers little protection.


7. Have a need-to-know policy.
   Don’t get in the habit of cc-ing everybody in the company. Limit information to people who have an actual need to know it. If trade secrets are distributed throughout the company without regard to who needs the information, then a court might conclude that they’re not really trade secrets.


8. Conduct exit interviews.
   When an employee leaves your company, this might be the last time to impress upon them the need to keep confidential business information confidential. Have a checklist of points to make during the interview, and get the employee's signature on an acknowledgment that it's not OK to distribute secret information. This makes it harder to feign ignorance after being caught distributing your secrets.


9. Review trade-secret concerns whenever a key employee is leaving.
   Whenever you find out that a key employee is leaving, you should examine the trade-secrets she was privy to and assess the risks of her disclosing them. Especially if she’s going to work for a competitor. Remind her of any noncompete or nondisclosure she’s bound by. And preserve the contents of her computer hard drive and email, just in case. (Don't just reassign her computer to her replacement!)


10. Have a trade-secret audit done.
    Your employment counsel should be able to provide you with a comprehensive review of your trade-secret inventory, procedures, and policies for a reasonable fixed fee. The end product of this audit should be an executive-level report that tracks your company’s trade secrets, including who knows what and what protections are being undertaken to safeguard them. If you don’t know whether your trade secrets are being protected, they probably aren’t. A trade-secret audit should pay for itself many times over in reducing both trade-secret theft and unsuccessful enforcement litigation.

Useful is to useless as beautiful is to ... ?

Keeping in mind that this blog is named for a word that isn't but should be, there's a group of words having to do with quantities of qualities that are missing their natural opposites. For example:

• someone can be beautiful, but not beautiless
• mindful is not the opposite of mindless
• being a lawyer can be gainful employment; can't it also be gainless?
• my painting is worthless; why isn't Picasso's worthful?
• she has boundless enthusiasm; why isn't mine boundful?
• sometimes I'm clueless about something; I'm never clueful
• I'm also sometimes hapless, but I've never been hapful
• this blog can be playful, but it is rarely playless
• you can try to be masterful; if you fail, are you masterless?
• witless but not witful
• childless but not childful
• fitful but not fitless

Who decides this stuff anyway? Send me comments with other needful words and their apparently needless counterparts.

"Why would I write my password down? It's just my birthday."

Think your company's secrets are safe? Think again.

One third of all employees write down their computer passwords, Reuters (via USA Today) reported last week. This from a study performed by Nucleus Research and KnowledgeStorm. The study found no correlation between the complexity of the password system and the likelihood that employees would write down their "secret" codes — a third of all employees would always jot down their passwords no matter how simple they were. The study concluded that employers serious about security should consider abandoning passwords in favor of other methods, such as biometrics.

More on billable hours and work-life balance

No less than the eighth-highest-ranking lawyer in the country, Associate Justice Stephen Breyer, had this to say about the problem of billable hours in the foreword to the ABA's August 2002 Commission on Billable Hours Report:

The villain of the piece is what some call the “treadmill” — the continuous push to increase billable hours. As one lawyer has put it, the profession’s obsession with billable hours is like “drinking water from a fire hose,” and the result is that many lawyers are starting to drown. How can a practitioner undertake pro bono work, engage in law reform efforts, even attend bar association meetings, if that lawyer also must produce 2100 or more billable hours each year, say sixty-five or seventy hours in the office each week. The answer is that most cannot, and for this, both the profession and the community suffer....

Does [the billable hour] unnecessarily aggravate the pressures that threaten to confine the lawyer to the office, insulating him or her from the community? Moreover, does the billable hour contribute to or undermine a practitioner’s ultimate goal — to provide clients with the best legal services possible? And to the extent billable hours are counterproductive on either or both counts, how, when, and to what extent, might it be possible to change billing methods?...

[The Commission's task] concerns how to create a life within the firm that permits lawyers, particularly younger lawyers, to lead lives in which there is time for family, for career, and for the community. Doing so is difficult. Yet I believe it is a challenge that cannot be declined, lest we abandon the very values that led many of us to choose this honorable profession.

So at least one Supreme Court justice believes that work-life balance is an important problem, and that billable hours just may be one of its causes. (You can access the entire Commission report here.)

Lawyers and work-life balance

There is an important conversation — well, important to lawyers — going on in the blogosphere about work-life balance. Dan Hull's always-insightful What About Clients? kicked up some dust in a post about how small firms can win clients away from big firms:

get off your knees, quit bottom-feeding, chuck both your "niche" market thinking and your work-life balance nonsense (the first 8 to 10 years for associates, and lawyering done right after that, should be hard work for even the gifted), steal the good clients, provide outrageous service and get rich.

Professional coach Julie Fleming Brown's Life at the Bar picked up on the "nonsense" tag and has this post about how lawyers can adjust their own balance and still provide excellent client service:

But it’s possible (and necessary) to adjust the balance in whatever direction is most desirable for a particular lawyer and still to provide excellent service. Such an adjustment will lead to certain consequences, whether it’s rapid advancement in career, a deeply satisfying personal life, handsome or sub-optimal earnings, burnout or boredom, or most likely some shifting mix of these and other consequences.

Dan Hull responded with a forthright post about work-life balance being a "dumb-ass issue":

WLB is "your" problem--not mine. Each one of us creates our own quality of life as we learn to lawyer, keep lawyering and serve clients.... If you are a job-hunting student or young lawyer expecting my firm to support a regime of work-life harmony, please try another shop.

This conversation led me back to an excellent summertime post on Tom Collins's More Partner Income
that calls for some creativity in valuing the work of those attorneys (mostly mothers) who work fewer hours:

Let’s turn this conversation around. On the one hand, let’s deal with the child raising years of lawyer-mothers; and on the other hand, let’s start celebrating the benefits of lawyering, including the satisfaction of service to others ....

I think Tom's right. There is a creative way to solve this problem: ending billable hours.

More to come ...

No lawyer tricks for defending against sexual harassment

Sexual harassment is the hardest employee claim to defend against. Why? Because it's the claim most likely to make its way to a jury.

When we're defending our employer clients, we try to get most types of employee claims narrowed or dismissed using an arsenal of legal tactics.

Lawyer tricks, in jaded terms.

For example, say I'm defending a disability-discrimination claim. Here are the different arguments I can make to try to get the claim dismissed:

1. the employee's not actually disabled
2. her condition isn't serious enough to meet the disability threshold
3. she's not "otherwise qualified" to perform her job
4. she refuses to accept the reasonable accommodations my client's provided
5. the accommodations needed to allow her to do the essential functions of her job are not reasonable
6. she's already claimed elsewhere that she's totally disabled, meaning she can't work, period

As you can see, there are a number of arguments I can use in a legal motion to try to get the claim dismissed. They're not easy arguments — disability cases are very tricky — but they are arguments.

Sexual harassment is different. I have fewer arguments I can make. Once the employee clears the hurdle of showing that the conduct actually was sexual harassment — meaning that it was unwelcome sexual conduct at work — she's off to the races. The only remaining issues are questions of facts — "he said, she said." And questions of facts are decided at trial. Once a sexual-harassment case gets to trial, the employee has a solid chance of winning, and a probable six-figure payout if she does.

The smart employer has a serious antiharassment policy and regularly trains its employees and managers so they know what harassment is and how to prevent it. That's much more effective than lawyer tricks.

Liar, liar, your résumé's on fire

The Boston Globe's terrific workplace reporter Diane E. Lewis noted in today's paper a recent survey called "Résumé Lies." CareerBuilder.com polled 2,200 employees and over 1,000 hiring managers on the subject of fibbing on your c.v. Fifty-seven percent of the hiring managers reported that they've caught lies on applicants' résumés. Of those lie detectors (my lame-but-unavoidable pun, not Diane's), 93% chose not to hire the liar (also my lame rhyme — sorry).

Ironically, only five percent of the workers polled admitted to writing résumé fiction. So either all this lying is being done by a select few ... or people who lie on their résumés tend to lie on surveys, too.

Fire them anyway

I recently posted on what I called the 30 riskiest firings. But I want to be clear: just because firing one of the listed employees is risky doesn't mean you shouldn't do it.

We have a rule at my firm: we never tell a client not to fire someone they want to fire.

Actually, in a dozen years of advising employers, I have never dealt with a manager or HR pro who wanted to fire an employee. It's not an easy thing to do, and it causes plenty of angst and sleepless nights. (Yes, I know: it causes more for the fired employee.) When my clients ask me about firing an employee, it's because they feel they need to fire that person. Once they've reached that decision point, the relationship with the employee is irreparably broken, and it's time for that employee to go.

My job isn't to talk them out of it. My job is to help them do it the right way, to minimize the chance of litigation (see the recent post on retained dignity), and to improve the chances of defeating a lawsuit if it comes to that.

The list of 30 riskiest firings is just a reminder about being careful. It's not an admonition against firing who you need to.

In his provocatively titled and insightful book, Fire Someone Today, Bob Pritchett writes:

When we don't fire someone we should, our inaction is malicious. We are hurting our organization and wasting the employee's time on a job with no future. Our motivations are most likely selfish; at the very best, we are just being stupid.

You can learn more about the book in the booklist to the right. Bob's blog is here.

Giving new meaning to "The Hall of Justice"

There's a new comic book on the stands, and its hero's powers rival those of Spider-Man, Wolverine, and even the Silver Surfer. The comic is "Attorney Man," and The Boston Globe's law-business reporter Sacha Pfeiffer has the story here.

As Pfeiffer reports, fictitious lawyer Tim Silver has just made senior partner at Cha Chingi Changa LLP after billing more than 2,500 hours a year for the past nine years. (This left little time for the niceties in life, like the births of his children.) But he realizes that he doesn't have the client skills or marketing ability to continue to grow his practice. After a visit to Dr. Development, who gives him a magic elixir, Silver transforms into the superhero Attorney Man. Pfeiffer writes:

Unlike stereotypical lawyers who are introverted, risk-adverse, and better at talking than listening, Attorney Man is creative, forward-thinking, and knowledgeable about his clients' needs and industries. Newly aware that ``thinking like a lawyer" is holding him back, he takes to heart what clients often dislike about their lawyers: arrogance, poor communication, missed deadlines, unexplained bills, uninformed associates.

Many clients would love to have a superhero like that for their counsel.

Boston-area law-firm consultant Karen Katz and Somerville artist Raul Gonzalez developed the comic as a training tool for lawyers. You can order copies here.

How to Save HR — Step 2 — Outsource the "personnel stuff"

The next step in saving HR is to get rid of the nickel-and-dime stuff. (The first step — establishing a Talent Department run by the Chief Talent Officer — is here. The introduction to the problem is here.)

There's a reason why many companies and their employees lack sufficient respect for their HR professionals. They spend too much of their time dealing with what I call "personnel stuff": I-9 forms, dress-code exceptions, sick-day tracking, floating-holiday calculation, progressive-discipline rules, snow-day cancellations, dental-plan waiting periods. This administrivia is the tail wagging the dog of HR. Even the most forward-thinking, strategy-minded HR chief has no time left to do the important work — developing and implementing the company's talent strategy — after dealing with all the personnel stuff.

Get rid of it.

Outsource it. Send it to India. Offload it to companies who provide these services as an "outside personnel department." Clear your desk of the nickel-and-dime stuff. Then you can focus on developing, managing, and retaining the best talent your company can get.

Wal-Mart: Rolling back prices ... and employee pay

Wal-Mart's in the news again as a model employer. A Pennsylvania jury assessed a $78.5 million damage award against the world's largest retailer for violating state wage laws. The court concluded that Wal-Mart had required employees to work off the clock and through breaks. Plaintiffs' lawyer Michael Donovan, who represented about 187,000 current and former employees in the class action, told reporters that the award could rise to $162 million including bad-faith damages and attorneys' fees. The AP story (via the San Francisco Chronicle) is here.

In his WSJ Law Blog, Peter Lattman has this quote from the company, showing how it wasn't really their fault:

"Many employees testified that they skipped, or cut short, their breaks by their own choice,'’ said a Wal-Mart spokesman in an e-mailed statement. “Wal-Mart strongly discourages this practice and should not be penalized when an employee chooses to do this on his or her own.'’

Poor Wal-Mart. Having its employees take advantage of it by "choosing" to work for free. No fair.

It's too easy to pile on Wal-Mart over treating its workers poorly. What's more interesting to me as a management lawyer is the plaintiffs' attorneys' using electronic evidence to help prove their case. Apparently, the jury saw evidence that showed employees logged on to their registers when they were not on the clock.

Payment-of-wage cases are very hard for employers to win. You either paid the workers or you didn't. It's stupid to try to get away with not paying employees. It's even stupider to think that plaintiffs' lawyers aren't going to find out.

The 30 riskiest firings

Firing an employee is never without risk. But some firings are riskier than others. They're riskier because the employees have potential claims available to them that other employees don't have.

This is not to say that the employees on this list are more likely to sue than others. (Anyone claiming that women or blacks or gays or handicapped people are more likely to sue because they are women or blacks or gays or handicapped people is an idiot.) But if they choose to sue, they can create more problems than other fired employees can. That's why they're riskier.

The list, which I've developed over the past dozen years litigating employment cases for employers, is not a ranking; it's in no particular order.

Take care in firing employees who:

1. are female
2. are pregnant
3. were recently pregnant
4. are on family or medical leave
5. are just back from family or medical leave
6. recently asked for family or medical leave
7. are older than others (and at least 40)
8. are a different race from most
9. are a different national origin from most
10. are a different religion from most
11. are a different ethnicity from most
12. have a disability
13. have a mental disability
14. are thought to have a disability
15. associate with someone with a disability
16. are alcoholic
17. are gay or lesbian
18. are transsexual
19. have ever complained about discrimination
20. were sexual-harassment victims
21. are veterans
22. didn't get paid for all their time worked
23. didn't receive all their overtime pay
24. are about to receive a bonus, commission, or option grant
25. ever complained about an illegal practice
26. have criminal records
27. have drug problems
28. are involved with union organizing
29. are related to, friendly with, or live near a lawyer
30. are fired with less retained dignity than they could have

Options investigations: lawyers cutting cookies?

Peter Lattman again on the stock-option debacle: Many of the press releases reporting the results of law-firm investigations contain amazingly similar language. Peter quotes from several in his post.

Lawyers often reuse language that they find elsewhere rather than reinventing the wheel. And no one's suggesting that the law firms here did anything wrong. But one can't help wondering if lawyers are turning options investigations into a commodity practice. A law firm adds the most value when its advice to a client is unique to that client's situation and needs.

The price of backdating options

Peter Lattman's excellent and informative WSJ Law Blog has this item on the cost of internally reviewing past stock-option grants at Marvell Technology. According to a recent SEC filing, the chairman of the special committee charged with reviewing Marvell's options "receives $2,500 a day for his services as such," plus travel and related expenses.

Three thoughts on this:

1. This is just further support for why a company needs a Chief Talent Officer with a "seat at the table." The CTO, reporting to the CEO, would draw enough water to be able to say, "This is wrong. We shouldn't be doing this." Otherwise, these option decisions get made without the right people knowing about them.
2. How does a company like Marvell know it's getting value for its $2,500 per diem? This leads to the same problems that hourly billing causes: it rewards inefficiency and slower work, and it leads inevitably to a surprise bill at the end. A more-entrepreneurial firm might be able to win some option-review business by saying, "Here's what we're going to do for you, and here's what it's going to cost." The price is then based on the value to the client rather than the number of hours (or days) it takes to do the work.
3. Why is it "per diem"? Can't we just say "a day"? Do we think that if it's in Latin it in must be worth more? "Oh, I'd never pay $2,500 a day. But per diem? Sure!" Unless you're an Ancient Roman, Latin is almost never better.

BTW, Peter has gathered everything you could ever want to know about the stock-option saga here.

Hourly billing and the Devil's Advocate

My firm, Shepherd, is preparing to drop hourly billing in favor of Up-Front Pricing. And I mean completely drop, in that we're going to stop billing hourly, period. I feel like I've read everything in support of value pricing, with Ron Baker's works leading the charge. While still squarely in the minority, there are plenty of advocates for value pricing out there.

What I can't find are advocates of hourly billing. And I don't mean advocates who believe hourly billing is good for lawyers — that's why hourly billing began in the 1960s, after studies showed that law firms could make more money using it.

I mean advocates of hourly billing who believe it's good for clients. What proclient arguments do you have for sticking with a system that encourages lawyers to take more time to finish their work?

Happy is to sad as angry is to (blank)

This blog is named for the opposite of disgruntled, which should be gruntled — but really isn't. The dis- in disgruntled is not the same as the dis- in, say, disfavor. ("My boss disfavors me. That's why I'm so disgruntled.")

Instead, this dis- is used as an intensive. The gruntled comes from the Middle English gruntelen, meaning "to grumble." The intensive -dis means you're grumbling more when you're disgruntled. Ann from Esmerel.com has a nice explanation of all this here.

So while we're speaking of feelings and their opposites — like happy and sad — why the heck is there no opposite for angry? Recently we talked about how anger leads to the Dark Side — no, wait, that's something else — how anger leads to employee lawsuits (see the post on "Retained Dignity"). If we should be worrying about angry employees, what do we call them when they're not angry?

WordNet (via Answers.com) lists unangry as an antonym for angry, but that's sillier than disgruntled. It's completely made up. The word mavens at Oxford Dictionaries certainly don't buy it: otherwise, there'd be a solution for the old riddle of the three English words ending in "-gry" (along with hungry and, of course, angry). (There is no third word.)

What's the big deal? you ask. Well, I submit that opposites are important. For proof, there's the classic bit on The Simpsons where Dr. Nick literally pours gasoline on a fire, while reassuring bystanders, "Don't worry. It says Inflammable." After the explosion, Dr. Nick says, "Inflammable means flammable? What a country!"

What a country, indeed.

New HR metric: "retained dignity"

I was all set to write a post about dignity and fired employees, and then Nick Roy's HR Horizons beat me to it with a terrific post called "Firing Employees with Dignity." (Just to be clear: we're talking about firing employees in a way that preserves their dignity — not firing dignified employees.) In it, Nick talks about softening the emotional blow of firing people. He gives good advice, including "NEVER fire someone by email" — advice RadioShack could have used.

Here's what I can add: As a management-side employment litigator for the past dozen years, I've seen firsthand the effect of firing people without protecting their dignity. It is, in my experience, the number-one leading indicator of employee lawsuits. It is one thing to lose your job; it's another to lose face. Employees who feel like they lost more than their job — who feel like they were screwed over — are much, much more likely to sue.

In fact, you can mathematize it:

RD = 1 - (NA + FS)

where RD is the fired employee's retained dignity, NA is the employee's natural anger over being fired, and FS is amount by which the employee feels screwed. (All values are on a scale from .00 to 1.00.) You can then plug the retained dignity into a rough formula for the likelihood of an employee lawsuit:

P_lawsuit = (1 - RD) + [STR(case) * $]

where the probability of the fired employee suing is based on the retained dignity, the strength of the case, and the amount of money to be won.

Some forward-thinking companies are beginning to use HR metrics to quantify the return on investment for various human-capital operations and initiatives. (For more on this interesting topic, click on the books The HR Scorecard and The ROI of Human Capital in the booklist to the right.) Companies should consider adding retained dignity to these metrics.

There have always been ethical reasons for firing employees in a way that preserves their dignity. Now there are financial reasons, too. Higher retained-dignity scores mean lower employee-lawsuit costs.

Keep it short, stupid

Lawyers love big words. So do people who fancy themselves lawyers (pseudolawyers — you know who you are). But better writing uses shorter words. Churchill — who knew a thing or two about words — famously said, "Broadly speaking, the short words are the best, and the old words when short are best of all." It's not a coincidence that the most common words in English usage are also among the shortest. And the oldest.

The folks at the Oxford Dictionaries have created the Oxford English Corpus to keep track of words in actual usage. The number of words tracked in the corpus is now over one billion (not one billion different words; just one billion words tracked). Using the corpus, the lexicographers can tell how common different words are. The ten most popular are: the (50 million hits), be, to, of, and, a, in, that, have, I. These ten words make up a quarter of all the words used in the corpus.

Of the top 100 words, only three have two syllables: about (45), person (61), and because (94). And most of the top 100 words are from Old English.

Lawyers, on the other hand, tend to use too many multisyllabic Latin-derived words. Terminate instead of fire. Conclusion instead of end. Demonstrate insead of show. But if you want readers to better understand you, use shorter, clearer, more common words.

Risking your job

Seth Godin's excellent blog had a great piece on mass layoffs called "50:1" — the number 50 being the Bureau of Labor Statistics' threshold for a "mass layoff." Seth's point is that you're more likely to have your job evaporate than you are to get fired for "attempting to do something great."

Too many people fear getting fired for taking a risk. Sometimes that risk means bucking the system. Sometimes that risk means trying something new and unproven. And sometimes that risk means doing what is right instead of doing what you've been told.

How many people involved in the H-P pretexting scandal knew it was wrong but did it anyway out of fear of being fired for refusing? Frankly, I don't know which would be worse: not refusing out of fear, or not knowing it was wrong in the first place.

Truly excellent companies foster a culture that encourages people to take risks in doing a great thing — or doing the right thing.

How to save HR — Step 1 — Moving HR to "C" level

We set up the problem a few days ago: that HR is in danger of falling into irrelevance. (See How to save HR — Introduction.) The first step for saving HR is to raise its altitude — to "C" level.

Most companies have a handful of executives who report directly to the CEO: the Chief Operating Officer, the Chief Financial Officer, the Chief Information Officer, the Chief Marketing Officer, and the Chief Legal Officer (usually called the General Counsel). But rare is the company that has its head of human resources sitting in the"C suite."

This makes no sense. Every company depends upon having the best people — the best talent — it possibly can to succeed. Without top talent, who actually does the operations, finances, technology, marketing, or legal stuff? Why do most companies relegate the recruiting and managing of talent to an administrative position that usually reports to the CFO? Even the term "human resources" — itself a euphemism for the drab "personnel" — demeans the role and its importance. HR professionals often decry not having "a seat at the table," and for good reason. Most companies fail to recognize the strategic role that HR should play.

Top business guru Tom Peters beats the drum for elevating HR to its rightful place in his excellent book Re-imagine! Business Excellence in a Disruptive Age. (Click on its cover in the righthand column to learn more or buy it.) On page 256 of the hardcover edition, Tom advocates for changing the name of HR to "Talent Department." (Or even the slightly more exuberant "Seriously Cool People who Recruit & Develop Seriously Cool People.") He writes:

I have long believed that human resources people should sit at the Head Table. I'm a fan of HR. It is ... after all... an Age of Talent.

Problem: All too often "HR folks" are viewed (all too) correctly as "mechanics." Not as ... Master Architects ... who aim too ... Quarterback the Great War for Talent.

(Tom loves ellipses and capital letters nearly as much as he loves exclamation points.) Tom blames all this on a "failure of imagination." And he's right. You could do worse than to read Tom's chapter on Talent and implement half of his ideas for building HR into a strategic arm of the company, with a Chief Talent Officer reporting directly to the CEO. (Also, you should subscribe to his blog.)

Most companies say that their employees are their most important assets. If that's true, they should put the person in charge of developing them at the right altitude: at C level.

IM: "Instant Messaging" or "Incriminate Me (and my company)"?

In 12 years of litigating employment cases for companies, I've learned two axioms of written words:

1. If it's not written down, it didn't happen.
This is why we always tell managers and HR pros to document, document, document everything. (We always say it three times, like it's an incantation or something.) Judges, juries, and agencies tend to believe a witness who says, "I know I talked to her on that date, because I wrote it down here," and then hands over the supporting note. It's not that someone couldn't have written the self-supporting document after the fact; it's just that most people wouldn't do that.

But the second axiom of written words is almost the converse of the first:

2. If it is written down, the person you least want to read it probably will.
(This is related to the First Rule of Litigation, which says that the other side will always learn what you don't want them to learn.)

For years now, companies have been telling people not to send emails that might incriminate themselves or their employers. Even today, people are lulled by the casual nature of email, and they type things they would never set down in a letter or memorandum. Who's going to read it? they ask. The answer is: The person you least want to read it.

Employees who have awoken to the need for prudent emailing still act recklessly when it comes to instant messaging. They take comfort in the knowledge — no, really, just the belief — that most companies don't have the know-how or technology or desire to save IM messages. But just how correct is that belief? The Wall Street Journal's Amol Sharma and Jessica Vascellaro have an excellent article on how IMs are not as private as their senders believe.

The messages could be saved by the recipient. They could be mis-sent, or read by someone else. They could remain on the ISP's servers, the company's network, or the employee's hard drive — all subject to subpoena and discovery. With the Mark Foley scandal tearing up Washington and the H-P pretexting imbroglio roiling Silicon Valley, an employee would have to be stupid to put something incriminating in an IM and think that no one but the recipient will ever see it.

All employers need to have policies in place that tell employees:

• the company owns the computers

• there is no expectation of privacy for anything written on company computers

• they mustn't send any email or IM that they wouldn't want to appear on the front page of The New York Times.

Not having a policy like this is just IM — imprudent management.

Let me introduce you to "you"

True story: I went to the brand-new Starbucks next door to my office yesterday — its first day open for business. (Mind you, it's about 300 yards from my usual Starbucks, and less than 100 yards from the on