Latest / The Action Catalyst / The Law at Work, with Alan Crone (Legal, Employment, Management, Business)

Transcript

The Law at Work, with Alan Crone (Legal, Employment, Management, Business) · The Action Catalyst

0:00
Stephanie Maas: So you're in Memphis.
0:01
Alan Crone: Correct.
0:02
Stephanie Maas: I don't know if you are familiar with this
0:04
place, but there's a house there that's kind of well known. It
0:07
was a singer back in the 60s, I think...
0:10
Alan Crone: Oh yeah. Aretha Franklin's birthplace.
0:14
Stephanie Maas: There you go, yeah, that's the one. Yeah, neat
0:16
town you got there.
0:17
Alan Crone: Thank you. Next time you come, let me know. I'm a
0:20
little plugged into this town. I'd be glad to make sure you
0:23
have a good time.
0:24
Stephanie Maas: I will definitely do that. So your
0:26
background in employment law is super fascinating. What got you
0:31
on that path? And then talk to me about how, through the years,
0:36
this has worked your way into inspiration for the book.
0:40
Alan Crone: Be glad to. Well, you know, I wish I could say
0:43
that I had this burning desire to practice employment law even
0:48
before I went to law school. That's not true, you know, I
0:51
went to law school, got out my first job. I was exposed to
0:56
employment law, went to work at another firm, and then that's
0:59
really all I did and really enjoyed it. Your employment
1:03
relationship is probably one of the top two most important
1:08
relationships you have in your life. You've got your
1:11
significant other, your spouse, and then the way you make your
1:14
living. And in America, what you do is a big part of who you are.
1:19
Very early on, I realized that how incredibly important it is
1:23
to folks lives, that they have a fair work place and they have a
1:29
clear path to be able to provide for their families and provide
1:32
for their own personal self actualization. So it wasn't hard
1:37
to kind of fall in love with employment law from that
1:39
standpoint, at that time, early in my career, I was a politician
1:44
with a law license. I'm now a recovering politician in not in
1:49
the mid 90s, I went to work for the governor in Tennessee and
1:53
was the chief counsel for the Department of Employment
1:55
Security, and among other things that we did workforce training
1:59
and unemployment compensation. I did some work for the governor's
2:03
office in employment law, and so when I left government service,
2:07
employment law was kind of hard, baked into my professional DNA,
2:10
and over the years, I've become more and more of an employment
2:14
law specialist. The book the law at work, people ask me, How long
2:18
did it take you to write the book, if I'm truthful, 30 years
2:21
and I wanted to write the book to give non lawyers a playbook
2:27
on how to deal with some of these employment law issues out
2:30
there. Because, you know, there's a lot of misinformation.
2:32
People think they know what the law is, but, you know, they
2:35
really don't. A lot of people just don't think about it until
2:38
it's on top of them. Whether you're a decision maker at a
2:40
company or a employee or executive trying to figure out
2:44
what your rights are. Hopefully it's a good first place to go to
2:48
begin to formulate a plan on on what you should do next.
2:51
Stephanie Maas: Very neat. I'd be curious with that 30 years
2:55
plus of experience, how have you seen the environment between
2:59
employee and employer change?
3:02
Alan Crone: Well, I think, I don't know exactly when it
3:04
happened, but I think that there's much more of a even
3:09
playing field between labor and management now than there used
3:14
to be, although that's not saying a whole lot. But you
3:17
know, with the gig economy and the great resignation and all of
3:21
those things really has changed the way people approach making a
3:26
living. I'm not even going to say work, because I think people
3:29
now make a living and pursue careers, as opposed to, you
3:33
know, just going to a job. Management can no longer stand
3:37
at the top of the mountain and just dictate the terms and
3:40
conditions of employment, you're seeing a lot more strikes now. I
3:44
don't think that that's a coincidence. Everyone from the
3:47
writers and actors to the UAW and airline employees are
3:54
realizing that they've got a lot more bargaining position than
3:57
they used to have, and they're flexing those muscles because
4:01
people who are willing to be an employee is a shrinking amount
4:05
of people. I think it means that companies have to become much
4:09
more mission driven. They have to hire people that align with
4:14
that mission. That is really what's going to get you a good
4:17
worker is someone who isn't coming to work just for the
4:21
paycheck, but is coming to help you achieve a mission that they
4:24
believe in.
4:26
Stephanie Maas: I'm going to go on the flip side of this coin.
4:28
What have you seen stay the same? What issues are you still
4:33
dealing with today that you got introduced to 30 years ago?
4:37
Alan Crone: People. People are the constant when you're talking
4:41
about any organization, but particularly a business, the
4:45
people and how they relate to one another, is the constant.
4:49
You know, no matter how much you you train people, no matter how
4:53
much you have policies and procedures, the human condition
4:57
is always going to raise its head. But. Positively and
5:00
negative. I mean, you're always going to have people that don't
5:03
know how to act appropriately. You're always going to have
5:05
people that are greedy or that want power or want to
5:10
manipulate, and you've got to deal with that in your
5:12
organization. You're always going to have people that don't
5:15
know, whether it's intentionally or unintentionally, don't know
5:18
how to navigate the psychosexual relationships between co
5:23
workers, and you're going to have harassers and all of those
5:26
things, people is the constant. And I think that in the early
5:31
part of my career, management dealt with that by edict my way
5:35
or the highway, or you're going to do this or else, and that
5:38
sort of thing. And that still works to a certain you know, you
5:41
got to have standards. But I think that dealing with that
5:44
human element now is dealing with the psychology of
5:48
leadership and the psychology of followers. Dealing with that is
5:52
is so much more of a priority now. Whereas, you know, 1020,
5:57
years ago, managers thought they could just ignore, ignore that
6:01
and be off their authoritarian about it. So people would be the
6:04
first constant. And then I think the other, you know, constant is
6:09
a lack of communication and positive confrontation in the
6:13
American business place Management students, when they
6:15
come out, they don't understand. They they're not taught how to
6:19
properly confront and enforce standards, and I think that
6:23
causes a lot of people to be not very confident in their
6:27
management style. They don't know how to to get people on the
6:30
same page, so they just lay down the law. The other thing that
6:33
hasn't changed is how devastating turnover is to an
6:37
organization. If you're in an organization and you're
6:40
constantly turning over. That's probably more of an indication
6:45
about your management than it is about the people that you're
6:47
hiring. If someone comes to work for you, I would say, you know,
6:51
there's that moment that, that honeymoon moment when you when
6:53
you offer the job, and the person accepts everybody in that
6:56
transaction, has hope, and then when that relationship
7:00
deteriorates, and you have turnover, now you're back to
7:03
square one, huge, huge cost to to the organization, both
7:09
financially and psychically, right? I mean, nobody enjoys
7:13
getting fired. Nobody enjoys firing people. If you do, then
7:17
you're probably psychotic and should be doing something else.
7:20
And when that happens, that's a failure of the recruitment
7:23
process. It's a failure of management, it's a failure of
7:26
the employee. Now, more and more as we as we get into all kinds
7:30
of different, you know, management tracking and KPIs and
7:34
all of that, we're having to figure out how to avoid that
7:37
from happening, because we can see in real time how much that
7:40
turnover is costing us.
7:42
Stephanie Maas: That is definitely one of my favorite
7:43
topics. What else would you say are some of the common workplace
7:49
challenges, especially if you're a small business owner, or if
7:53
you're in a leadership role where you have responsibility
7:55
and authority? What are some of the other common challenges,
8:00
workplace issues that we're facing today?
8:03
Alan Crone: The number one is the inability to answer this
8:06
question? What do I have to do to be successful here? Again, I
8:09
don't think we communicate our expectations very well to
8:12
employees. Every case I've ever been involved in, even if
8:15
there's intentional discrimination, intentional
8:17
harassment, there's always this element of bad communication up
8:22
and down the chain again, it goes back to Mission. How does
8:25
this position fit into the mission of my company? What
8:28
qualifications do I really need this person to have? How do they
8:31
need to manifest those qualifications on a day to day
8:34
basis to be successful? I tell people all the time, ask that
8:38
question in an interview, and if you get a good answer, that's
8:41
where you need to work again. I think lack of good
8:44
confrontation, people don't want to correct other people. They
8:49
don't know how to go about it, and so if you haven't expressed
8:51
those those expectations correctly, that's one reason why
8:55
people are hesitant to confront because they kind of realize,
8:58
either consciously or subconsciously, they really have
9:00
never told this person that whatever the part of this job is
9:04
is important. I represented a man who was 65 year old, black
9:08
guy, we'll call him Jesse. Jesse had worked for this company for
9:14
30 years. It was not an upper level position. He was kind of a
9:18
supervisor, but very important for the company. He was supposed
9:22
to be at his at the job at eight o'clock, but for 30 years, he
9:25
got to his job between 815 and 830 mainly because of the public
9:30
transportation system in Memphis. Well, for years and
9:33
years and years, nobody said anything to Jesse. He had had a
9:37
African American supervisor. They all got along. Well, one
9:41
point he got a new supervisor who happened to be white. This
9:44
fellow noticed, well, Jesse's coming into work 15 to 30
9:48
minutes late every day. So basically, went up to Jessie's,
9:50
look, you're late. One more time. You're fired. Sure enough,
9:53
the next day, he was 15 minutes late and he was fired. And Jesse
9:57
came to my office and I said. Why did they tell you that you
10:01
were fired? And he said, Well, it's because I was late. I said,
10:03
What was the real What do you think was the real reason you
10:06
were fired? And he said, Well, the only thing I can think of it
10:08
is because I'm black. I've been late for 30 years, and nobody
10:11
ever said a thing. Now I get a white supervisor and I'm fired.
10:14
The facts of that you can argue with, and ultimately, we settled
10:18
the case. But it was a good illustration of this, this
10:21
thing, I have a confrontation. I'm not saying that being on
10:25
time isn't important, but nobody ever communicated that with
10:27
Jesse. And rather than sit down and talk to him about it and
10:30
find out what was going on and maybe how they could, they could
10:34
change it, the guy just, just fired him. The supervisor
10:36
thought that he was enforcing a standard, but what ended up
10:40
happening is they lost an employee with 30 years of
10:43
institutional knowledge and a lawsuit and a big settlement.
10:47
Again, going back to expectations, let's say that
10:50
you're going to hire a an accountant, or let's say you're
10:53
going to hire a banker. You say, Okay, I need, I need a
10:55
commercial banker. You find someone who's been in the
10:57
commercial banking industry for 20 years. They got great reviews
11:01
and you put them in just because they've been a successful
11:03
commercial banker somewhere else doesn't necessarily mean they're
11:07
going to fit into your culture. Doesn't mean they're going to
11:09
have your values, doesn't mean that they have your priorities,
11:13
and doesn't mean that they're going to do the job exactly the
11:15
way you want it to be done. The hiring person hasn't has a
11:19
vision of what it is to be a commercial banker. The
11:22
commercial banker has 20 year, maybe experience of what he has
11:26
been as a commercial banker. And for whatever reason, those
11:29
don't, those don't align. Maybe the decision maker just says,
11:32
You've been a commercial banker for 20 years. Don't, you know?
11:35
As opposed to, here's what, what we really need.
11:40
Stephanie Maas: I hear you talk about communication, and one of
11:42
my favorite sayings is good communication is as much about
11:46
the communicating as it is the comprehension. You know, you've
11:48
talked about the quality of recruiting, you've talked about
11:53
retention. How does the laws, the employment laws that we have
11:59
and that we're working towards, how does that weave in to help
12:02
with communication and comprehension and retention and
12:06
recruitment? Pull those together for me.
12:08
Alan Crone: What a great question. What a great question.
12:11
Employment law compliance is not just good legally. It's good
12:16
business for precisely the reason that you're talking
12:18
talking about. And I think again, it requires some some
12:21
thought and attention. Well, first of all, the employment
12:24
laws are not written to make you a better business, to make you
12:27
more profitable or anything else. The employment laws are
12:29
written to give protect minimal amount of protection. And when I
12:33
say minimal, I mean minimal amount of protection to certain
12:37
workers in certain circumstances. But there's a way
12:40
to take those requirements and supercharge them for business.
12:44
One of the things that overall, that Title Seven of the Civil
12:47
Rights Act of 1964 brings is this idea that you have to treat
12:52
everyone the same, that you can't have discrimination, that
12:55
you can't have harassment. You know not harassing your
12:58
employees is good business again, if you take that, and you
13:02
take it to heart, and you say, Okay, how can we take this legal
13:05
requirement and supercharge it and into making our business
13:09
better? And so one way you can do that is to, you know, take
13:13
that, those trainings that that right now are kind of pro forma,
13:17
you know, watching a video of some guy come over and say
13:20
something inappropriate to some woman. And okay, what should
13:23
they do now? That sort of thing to go on beyond and talk about
13:27
awareness of body language and sexual cues and all of these
13:31
things, what is appropriate and what isn't appropriate in the
13:34
workforce, and turn that into a communication opportunity
13:38
progressive discipline, essentially this notion of
13:41
they're getting written up, and then you have a warning, and
13:44
then you know that, that you get an opportunity to change your or
13:47
correct your behavior before you know something bad happens to
13:51
you, what the law calls an adverse employment action,
13:54
right? You should have that be not progressive discipline, but
13:58
progressive training. So you know the law doesn't say that
14:01
you have to have progressive discipline. You know that you
14:03
have to have three strikes and you're out that sort of that's
14:05
just something that's kind of evolved. If it's clear on the
14:09
face of your communication, your lexicon, what you do from the
14:13
moment that you begin to discipline or coach or train or
14:17
whatever you want to call it, that the real goal is not to set
14:22
you up to be fired, but is to give you every opportunity to
14:26
succeed. At the end, you can either show demonstratively that
14:31
either you just didn't have the capacity to do what was right,
14:35
or you didn't have the willingness, then that becomes a
14:39
pretty clear signal to everybody, the employee
14:43
management, and, you know, a judge or jury later on, if it
14:47
comes to that, that the company did everything it could to
14:50
salvage the relationship, make the person successful, and they
14:52
just weren't able to do it. You know, I tell people, Look, I can
14:55
tell you how to never get sued for an employment violence.
14:59
Conversation very easy. Never fire anybody. It starts with
15:03
designing the position, understanding, you know, that
15:07
unicorn that you need in that position, recruiting to that and
15:10
then train, train, train. It takes some time. It takes weeks
15:14
and weeks and weeks of training, of mentoring to get that person
15:19
up to where you want them to be, but it's worth it?
15:21
Stephanie Maas: You know, I think there's an opportunity for
15:24
a mental shift as well. Is, hey, what if you never get to fire
15:28
anyone ever? How would that change your behavior in terms of
15:32
how you dealt with folks? But if we could take a step back and
15:36
say, Hey, let's take a different vision. It sounds like we could
15:39
solve a lot of these problems, but that's really hard to do. So
15:43
what do you recommend to business owners, leaders, etc,
15:47
when they're in this pressure cooker, how do you get them to
15:50
start thinking differently? It is exhausting. It takes a lot
15:54
more energy. How do you get them to start thinking differently?
15:58
Alan Crone: I think the first thing is, if I'm a mid level
16:01
manager and I've got six to 10 people in my organization and I
16:05
don't know how to manage them, I get into a growth mindset and
16:10
take some classes, get some training, even if have to pay
16:13
for it myself. I see managers that have absolutely no idea how
16:17
to lead someone and coach someone to success, other than
16:22
just saying, here's the KPI. If you don't meet it, you're gone.
16:26
I think that's a deficit in their training and their
16:29
understanding of what of what their other options are, all
16:31
right. Well, that's a certain way of managing, but that's
16:34
probably not going to get you. That's not sustainable. That's
16:37
one thing that can be done is really try to get some training
16:40
and understanding how to do that. The other is, and I'm a
16:43
broken record on this mission, you get somebody to buy into
16:47
what it means, and what that means, not just to the business,
16:51
but, you know, you just created 10 jobs, which is 10 families,
16:55
maybe three kids that weren't going to go to college now or
16:58
going to college. That is the kind of motivation that gets
17:00
people up in the morning. Those are the people that you want
17:03
working for you. It's not just me making a quota, but it's me
17:07
making somebody's life better. They've got a higher motive than
17:11
just working for the company. So, you know, those are just two
17:15
ways I think that that we can solve that problem. It's going
17:18
to take a mind shift. You know, it may take a little bit of
17:22
stepping back and saying, Look, you know, one, one issue that I
17:26
deal with in my law firm all the time, and I think people across
17:30
the board don't, there's not many metrics for it, and that is
17:33
capacity. Because at some point, you know, if you've got a team
17:37
and that team is trying to do the work of three teams, again,
17:40
that's not sustainable, but most people have no idea what their
17:44
capacity really, really is. And you find out when someone's
17:48
capacity when they come to you and say, I gotta quit. I just
17:51
can't I don't care what the money is. I can't do this
17:53
anymore, particularly for small business people, is okay in the
17:56
short term, but it is not sustainable long term.
17:59
Stephanie Maas: Yeah, people are just burning out. They're
18:01
stepping out instead of working through that. So we have talked
18:04
kind of high level on some things. I want to get into a
18:07
little bit more boots on the ground. Let's say I am a small
18:12
business owner. Five things that I should have to protect my
18:16
business, my assets. I come to you, hey, I'm starting this
18:20
business where I've got it up and running, where a couple
18:22
million in revenue, couple million in revenue, what do I
18:23
absolutely got to do?
18:25
Alan Crone: Well, the first thing is, matter how big your
18:27
organization is, you need an employee handbook, and you need
18:30
written job descriptions for every position, for all the
18:32
reasons we've been talking about. It's one of those things
18:35
that you say that to operations people in a business, and they
18:38
are job descriptions. And it's one of those check off kinds of
18:42
things. No, no. This is a great business tool, because you
18:45
really need to make sure that what you say people are doing or
18:49
what they actually are doing, and that is so important,
18:51
whether it's compliance with the Americans with Disabilities Act,
18:54
the Fair Labor Standards Act, Title Seven, all those things,
18:58
the first thing that a plaintiff lawyer is going to ask for and
19:02
discover it, yes, give me the job description. If the job
19:04
description is wrong, good trial lawyer can just make you look
19:08
silly because your job description is wrong. I could do
19:11
a whole show on job descriptions. So that's the
19:13
number one job descriptions, employee handbooks, which is
19:16
another way of saying, communicate your expectations,
19:20
communicate your standards. The second thing is, once you've
19:23
communicated your standards, once you've communicated your
19:26
expectations, they're non negotiable. If they're
19:28
negotiable, then they're not a standard, or they're not an
19:31
expectation. And you should make sure everybody knows. You know
19:34
if five widgets a month is a non negotiable, and the person can't
19:39
do five widgets a month, ask them to seek their salvation
19:42
elsewhere. As they used to say at my high school, it's non
19:44
negotiable. That's going to do two things. One, your guys that
19:47
are doing eight widgets a month are going to appreciate you,
19:52
because they see that that you value their effort. The people
19:55
that are doing four realize I got this really they're serious
19:59
about. That, and you're going to get better production out of it.
20:02
The next thing everyone should have is you should protect your
20:06
intellectual property. My product or my service is not the
20:10
value of my company. The value of my company is and how I do
20:14
those things, there are agreements that you can have
20:17
that really tie that stuff down. Non competes, non solicitation.
20:23
Those agreements are, can be enforceable. Most of them are
20:27
not as enforceable as people think, because, again, they're
20:30
kind of off the rack. Somebody says, Well, we need to those
20:32
salesmen. We need to get a non compete with them. And so they
20:35
go to the internets, they pull down an agreement, and they
20:39
everybody signs it, and then when you have to go and enforce
20:42
it, there's problems because it's not customized to your
20:45
situation. And I'm not in the the person who ordered it isn't
20:49
going to get what they thought they were getting, and they're
20:51
going to have some lawyer like me say, Well, you know is give
20:56
you that kind of experience which which you don't want. So
20:59
understanding what your intellectual property is and
21:02
what it isn't is crucial. Part of it may be the cocktail of
21:06
vendors that you have assembled. The identity of those those
21:10
vendors is proprietary. And that doesn't necessarily mean that
21:14
it's secret that you know somebody couldn't figure out who
21:17
you use for SEO or who you use for supplying that vanilla that
21:23
that makes your cupcakes taste so so good, but somebody doesn't
21:27
have to do a commercial about it or publicize it. So you want to
21:30
make sure that if that vendor relationship is important, that
21:34
you protect it, either through exclusive contracts with the
21:38
vendor or non disclosure agreements, or what, whatever it
21:42
is, of course, part of that means you've got to understand
21:45
what it is, and then, you know, communicate that to everybody
21:49
else. So the third, the third thing I would say, from a legal
21:53
standpoint, is have a relationship with a lawyer, have
21:56
a relationship with an accountant, with a banker. You
21:59
know, you should be going to lunch with, with those folks
22:01
once a quarter, at least, to keep them apprised of your
22:05
situation and ask them for advice and so forth, keeping
22:10
good tabs on on those professional relationships and
22:15
advice and then, and then, finally, I would say, Be fair.
22:19
Be fair. Be Real, Be human. When you start a business, you're not
22:23
starting a family. We're not family, but you're a good team.
22:27
You're a collaborative team. Have values, have a mission,
22:31
have a reason other than just making money, that you come to
22:34
work every morning. I find that when I put my focus on that
22:38
vision, and I you know, my professional mission is to
22:42
transform the American workplace, one client, one case
22:45
at a time. That's not something that's going to happen
22:47
overnight. That's why we have that disclaimer at the back of
22:50
it. But you know, when I keep my focus on that mission, great
22:53
things happen when I'm concentrating on me, how much
22:57
money I'm going to make, how much growth My firm has, and
23:01
that sort of thing. That's when it all kind of falls apart.
23:03
Because true success is is elevating other people. And so
23:08
if you do those things every day, then every day you're going
23:11
to be a little bit better. And you're going to look up after a
23:14
year, after five years, after 10 years, and say, Man, we really
23:17
have come a long way, although I don't remember getting here.
23:20
Those are the things I would do.
23:22
Stephanie Maas: Super helpful. So that opened up a whole nother
23:24
can of worms for me. I have like 10 more questions again. I think
23:27
the book itself is going to be critical, both, quite frankly,
23:30
for employers and employees. I'm a big believer that, you know,
23:33
knowledge is power.
23:35
Alan Crone: You know, I think everybody, every reasonable
23:37
person, would agree that you shouldn't make business
23:40
decisions based on accidental factors like race and gender and
23:44
sexual preference and all those things. And I really think that
23:49
if I was a decision maker, I would be thinking every day,
23:52
okay, how can I eliminate the implication that that might even
23:57
be a factor? And I think one of those things is in order to
24:01
create, first of all, I say diversity in a in a business is
24:05
death. And by that I mean true diversity. And true diversity is
24:09
when you have a diverse opinion on what the mission of the
24:12
organization is, now, color, gender, all those things are
24:17
accident. Are accidental in the true scholastic definition of of
24:22
accidents, right? I mean, as long as you have people that are
24:26
mission focused, then it doesn't matter. All those other things
24:29
don't matter. But if you're a white guy like me, I gotta go
24:32
outside of my my sphere of influence to make sure that
24:37
those accidents are purely accidental. In other words, I've
24:40
got to go out and go where other people are, more diverse areas,
24:46
and make sure that I'm recruiting at hcbus. I'm
24:49
recruiting in the Latino community. I'm I'm going to the
24:53
women's lawyers organizations, and meeting people and making
24:57
relationships so that when I'm recruiting. So I'm recruiting
25:01
across the the vast spectrum, because, again, the the number
25:04
of people who meet my mission is a limited number amongst the
25:08
universe of everyone in the on the planet. I've got to really
25:12
expand my my scope of recruitment just beyond my
25:16
little circle of friends. And that's the that's the way that
25:19
you really do increase diversity in terms of those accidental
25:24
characteristics that people have, is to really expand your
25:28
your view.
25:29
Stephanie Maas: Well, I love that. Super, super fascinating.
25:31
Like I said, I've got so many other questions I'd love to ask,
25:34
but I want to be respectful. And if I've learned anything about
25:36
attorneys over the years, it is how important time is to them.
25:41
So I sincerely appreciate your time. You obviously have a
25:44
passion for what you do, and thank you very much for giving
25:47
your valuable time with us today.
25:49
Alan Crone: Stephanie, I appreciate it. Really enjoyed
25:51
talking with you.