Leigh Ann Buziak, partner in the Labor & Employment practice at Blank Rome speaks with host Richard Levick, chairman of LEVICK on best practices exiting employees so that it is as much of a win-win as can exists in these challenging situations.
Speaker 1: Welcome to the Corporate Counsel Business Journal's daily podcast, In House Warrior, with host Richard Levick, chairman of LEVICK, a global crisis and litigation communications firm.
Richard Levick: Good day and welcome to In House Warrior, the daily podcast of Corporate Counsel Business Journal. I'm Richard Levick, and with me today is Leigh Ann Buziak, who's a partner at the Labor and Employment practice at Blank Rome. Leigh Ann, welcome to the show. It's great to have you here. Why don't you talk a little bit about your practice. We've had some other labor and employment lawyers on at different points during the COVID-19 pandemic, but I know you're seeing some clear patterns now in terms of here we are nine, 10 months into this. We still have a number of months to go. Why don't you talk a little bit about the practice and some of the changes that you're seeing?
Leigh Ann Buziak: My practice is a little bit different maybe than your standard labor and employment practice, in that what I focus on is employees joining and departing from companies. We really focus on the hiring and firing, and what happens when you hire a new employee that is coming into a company that has confidential information, or maybe they have customer relationships, they have a restrictive covenant. How do companies handle that hiring? Then also on the flip side, when those employees eventually, unfortunately, depart from the company, how are companies handling those departures in terms of their trade secrets, their confidential information, and importantly, in a lot of industries, the customer relationships and the goodwill that you've built up through that employee?
The very interesting trend that we're seeing is, I guess due to the uncertainty in the labor market, the uncertainty of where people are working and all of that uncertainty, we're seeing just an unbelievable uptick in hiring at certain levels, which is interesting because there's a lot of layoffs and furloughs and unemployment, but at the same time, a ton of hiring. Then on the other side, we're seeing a lot of departing employees who are leaving, and taking information and taking customers, so that's what we're dealing with and that's what I'm dealing with every day.
Levick: I think down markets are always an opportunity for those who are debt-free or largely debt-free to be able to be very strategic about their hiring. It's not unnatural. We saw this in virtually every down market over the years. Are you seeing some generational differences in terms of how, when people are being exited out of the firm, their view on what's happening in this and maybe some of the retaliation activities that they're considering?
Buziak: Well, it's all about good communication throughout employment, when the person comes in the door and also when the person leaves. There is, and I hate to call it a generational difference, but there is a bit of a generational difference in terms of whether people think that they're in their careers for a long haul or in jobs for the long haul, and that concept of loyalty to the business and loyalty to the company. It's shifting a bit, I think.
People and especially a younger generation has seen the gig economy and has seen those types of things. When you leave or when you come on board, if you don't have those clear communications, and you don't have the comfort of joining a culture that's really robust and thus important to the company, I think you are seeing a lot of miscommunication. Unfortunately, once they get into the lawyer's door, that miscommunication has broken down to such a point that we really do try to open up the lines of communication, and then, of course, go to litigation if you absolutely have to. But that's really our job and what a lot of I'm doing these days is trying to clarify those communications, making sure that there has not been a miscommunication, because that inevitably is leading to more problems down the road.
Levick: What are some of the recommendations you want to leave with our general counsel audiences listening in, in terms of best practices for when you have to move people out of the organization?
Buziak: Again, clearly defining your expectations, clearly explaining the policies and procedures, having a good exit or we'll call them good leavers. You want to make sure that you remind people of their restrictions. You want to have a really good, robust exit checklist. One of the really big trends that we're seeing is that with the advances in technology and with working from home, we're keeping things. We're keeping confidential information in all kinds of different places now, the cloud, on devices, mobile device management, and the ever popular thumb drive external media. If your company is using those things, you need to have a checklist to make sure that any person that is leaving that may have access to those sorts of things, you're checking the box, and you're going through and making sure that they're not bringing anything with them.
Levick: What about advice for the employee? I know this is not where you're spending your time, but you're leaving and you're very emotional. You feel like it's personal, whereas the business feels like this is, to quote The Godfather, "It's business." People tend to make some bad decisions when they're emotional and when they feel it's personal.
Buziak: Of course, I'd love them to retain counsel. That would be the best thing to say, and we do actually counsel top executives on these kinds of things. The best thing that an employee can do is really assess the situation, calm down and realize that careers are long and industries are small, actually. There may be very big industries, but jobs and resumes and things have a way of finding you. The best thing you can do is just step back from the situation, take the high road and just say, "You know what? This didn't work out the way I wanted it to, but I'm going to do the right thing, and I'm not going to take the customers and I'm not going to take the information. I'm really going to try to leave on the right note." It's not easy, I understand, especially in these times, and some decisions that are being made are very difficult.
Levick: Something not akin to legal advice, but emotional advice, when we're in an emotional situation, and we think either a retribution or I'm going to get even, that we're acting emotionally, but then as you know better than anyone, the legal situation will go on for months or often years while your emotions have declined, you've moved on. What you find is that you're being pulled back into the past, including economically, and that's not a really good place to be.
Buziak: I find that the emotions right at the time of departure, and the time of resignation and for at least four to six, eight weeks afterwards, are the most intensely emotional and business-critical, really, moments. That timeframe, if you can sort of get, and that's what I really try to do, is get my clients through that time, because it's really stressful, and there's a lot going on. But you're right, tensions cool a few months later, "Oh, was that an important customer? I didn't even remember." It's not quite that. I'm being a little flip, but it definitely is that very intense time of, when am I going to resign, making that decision, and the same goes for the new employer, too. I mean, when the new employer is hiring new people, they're walking through that process with their new employee, too. Yeah, that timeframe, the decision to leave, and then six to eight weeks after you leave is our spots.
Levick: I'm not so sure you overstated it. I'm in Washington D.C. where, of course, we have this industry called politics, which is built entirely on forgetfulness and in two-year cycles, but the human memory is short. What about some of the best case examples where, I know you have to veil any examples, but where you've seen really extraordinary results based on complex situations, or the reverse where the fact pattern wasn't that bad, but the end result ended up not being as good as it could have been because people didn't take advice or didn't anticipate early on?
Buziak: The number one thing we see is that companies make decisions and aren't aware that, "Oh, maybe that top executive really did have access to some things that are going to be helpful to us in the new business," and they hire them and just don't think about it, just don't think about that issue. That can cause problems, but what we really aim to do and, I think, one of the things that I really like to do is reaching business solutions short of litigation, because the courts can only provide you with X amount of relief. But when you're negotiating, we have had a lot of success in negotiating really, really good business solutions where everybody actually gets something that they want, and we avoid litigation altogether, which is my favorite place to be.
We've been able to solve through some pretty big problems with just, maybe it's a business that the person doesn't even want to be in and they want to sell the business. Then we find that, actually, there's a pretty willing business partner on the other side, and we can broker something that is much more palatable to both sides that solves, not just the hiring and the non-compete and the information issue, but it may solve the bigger business problem, which is really what we like to do.
Levick: Leigh Ann, I'm not a huge fan of checklists, but I find that they're very good for creating sort of a baseline from which reason and counsel can build from there. Do you have those kinds of tools that you provide your clients?
Buziak: Oh yes. We have checklists for all kinds of hiring tool kits, if you will. Me and the group that I practice with have been through this countless times. I will not say I've seen it all, because I can tell you, this afternoon, I will see something new. But there's a pattern to this. There's a pattern to how people leave, and there's a pattern to how people come into a new company. We have seen a bunch of that.
Levick: Leigh Ann, as we draw to a close of the program, what are some of the key takeaways you want to leave with general counsel, some do's and don'ts?
Buziak: I want to make sure that everybody knows that whenever you have a new employee coming into the company, you want to make sure that you're assessing confidential information, what they had access to, what they might still have, and really, really getting away from that, really making sure that they don't have anything and making sure that if they did, if they were at sort of a really high level, that we're making sure when they join the company, that they are, at least if they're not in that role, that there is some sort of instruction or measure that the company is taking to make sure that there's no issue with information or customers.
Then the other thing I'd like to say is just, even if someone has a non-compete or if it seems like an issue is intractable, there is always a way to work it out. There's always some other way to make things happen. We want to make sure that the business goals are being met first. Then finally, just know that with technology and with electronic information, there is always a trail. There's always a trail, no matter how far you go off, if you take information and you put it somewhere else, or you email it, or you download it, or you put it in the cloud, or you put it in your iCloud account, there is a way to find it. Those digital tracks stay, and companies ought to be aware that evidence exists and that it needs to be taken care of before a hire or before anything kind of happens.
Published January 5, 2021.