NEWS OF THE • Take steps to contain the damage from the crisis and prevent its immediate recurrence; • Start the process of business recovery. • Learn how to prevent the next crisis of this type — stakeholders may forgive the company’s first crisis but they rarely forgive the second of a similar nature. So, what roles should CHROs play in this process? During the detection and initial response phase, if a crisis is by nature an HR issue, CHROs should work closely with the company’s counsel. Together, they will understand how a problem impacts internal stakeholders, know the policies that are intended to address the problem and be the most familiar with how those policies have been enforced enterprise-wide. For crises that are triggered by events like a government subpoena or pre-dawn raid, preparation is key. Working with company counsel, CHROs will know what can and cannot be ethically communicated to employees in the initial response phase. During the investigation phase, if the crisis is primarily an HR issue, the CHRO should work with the company’s crisis management team leader (often the CEO or COO) and its counsel to quickly understand the problem — how it happened, who is responsible, and whether any company protocols or controls were bypassed. If the problem is the result of the actions of one employee or a small group of employees, the CHRO and legal team must assess supervisor and managerial responsibility. In the containment and damage control phase, CHROs will play a pivotal role in deciding employee corrective actions and working on extended internal communications with employees. When the crisis is especially severe, CHROs are also central in retaining talent and helping employees who are facing hardships because their jobs are impacted. This phase may require CHROs to work with the company’s legal team to manage employee litigation and respond to regulator scrutiny. During business recovery, many employees may experience a range of emotions, including fear, shock, panic, anger, hopelessness and trauma. In this phase, CHROs will also serve as stewards over needed cultural improvements. Lastly, in the learning phase, CHROs should play a leading role in determining how to prevent similar HR crises in the future. Here, a deeper root cause analysis is important. How did the problem happen, did the controls work as the company intended, and if not, why not? Even if the crisis was not an HR problem, CHROs should still lead the assessment of how to mitigate the effects of future crises on the company’s employees. Preston Pugh is a Member in the Litigation Department at Miller
& Chevalier in Washington, D.C. Recognized for his work in risk avoidance and mitigation investigations, and trained as a labor and employment lawyer, he works with boards of directors and C-suite leaders in multiple stages of crisis management.
Summer 2020
UNUSUAL
WHEN LIGHTNING STRIKES
We start off with the case of an onion picker in New Mexico. According to Courthouse News, the woman, who is seeking punitive damages, claims Gillis Farms refused to let her leave the job during a thunderstorm, and she was then struck by lightning, causing her to be hospitalized for two weeks.
WHEN MANAGERS AND STAFF CHEAT
I like to think of the sign-stealing scandal that rocked Major League Baseball earlier this year as a sort of theft of intellectual property. Say that I’m a pitcher with a fastball clocking in at 97 mph and I’m thinking of putting one right under your chin to scare the bejeezus out of you. Or, maybe not. Maybe I’ll toss my 75 mph curveball that drops from 12 to 6 just before it crosses home plate and you’ll swing like a rusty gate. It’s my competitive advantage, so to speak. But your bosses devise a plan to steal my IP (incredible pitches) before I throw it so you can pop that tater into the left field upper deck and send me to the showers. Your boss asks you to comply with his sneaky scheme. Despite your already superior skills dissecting a pitcher’s habits, you agree to stealing my catcher’s signs. But neener neener, cheaters never prosper. Eventually your boss — i.e., the manager — gets caught, is banned from baseball and then canned. Your employer is fined $5 million. And what about you? Social media ridicule is the least of your worries. At best, your rep as a legit athlete is dragged lower than a steroid-pumped first baseman from the late 1990s. At worst, well, say it ain’t so, Jose.
BACK TO SCHOOL
Courthouse News recently noted that seven of the 11 members of the Kentucky Board of Education claimed in federal court that Gov. Andy Beshear unconstitutionally fired them without cause minutes after taking office. No word on whether he rapped their knuckles with a wooden yardstick, too.
LIGHTNING STRIKES
Walter Olson points out in his Overlawyered blog that the NLRB says any “aggrieved” person, and not just an employee, can file an unfair labor practices complaint against an employer, which may actually include internet trolls. A Twitter user filed an NLRB complaint against Ben Domenech, editor of the online opinion journal The Federalist, regarding his joke tweet saying that if any employees unionize he would “send you to the salt mine.” Think you have a workplace case law worthy of Workplace News of the Unusual? Or that I lack a sense of comic timing? (You are not alone.) Email me at rbell@workforce.com. 19
