Welcome to the second in a series of videocasts with prominent Crisis Management professionals. This one features David Monks, a partner with Fisher & Phillips, LLP, one of the top employment law firms in the country. In this video, David discusses how to evaluate employment litigation risks and take strategic steps to avoid such instances. He also talk about the necessary communications strategies to collaborate with other professionals should the need arise. Happy viewing!
Dave: Welcome to our second podcast series that we have on publicrelationsecurity.com where we talk to various people who get involved on occasions with various matters of crisis issues, and we’ve got with us one of the best in town, a Senior Partner … Is it Senior Partner or is it a different title with that, Dave?
David Monks: It’s just partner. I’m one of the senior guys, but it’s just partner.
Dave: Well, it was one of the partners who actually is senior, I’ll call him that, of Fisher Phillips. David Monks is here. David, thanks so much for your time. Give us a quick background on you. Tell us how you got to where you are.
David Monks: Thanks, Dave. I appreciate the chance to be here. Sure thing. Boy, I’ve been a lawyer for about 25 years. I didn’t know I was going to do law when I went to college. I thought I was going to be a Spanish major and do translation and interpretation, but I didn’t quite go down that path, and after getting back to San Diego after being away for a long time, I decided I’d go to law school, and did that and after a few years doing some other kind of work, I discovered employment law, and there was no looking back, and for about the last 15, 16 years, I’ve been specializing in that, and I’ve been here at Fisher Phillips for just about nine years now.
Dave: And give us a little background on Fisher Phillips for those who may not know them.
David Monks: Yeah, you bet. Our firm does one thing, and that’s we do all around the country. We have 32 offices, about 375 lawyers I think it is now, and that one thing that we all do is solve workplace problems for employers. We represent only employers. We do only labor and employment law, and we try to help employers avoid problems in the workplace, but when those problems happen, we help solve them, whether it’s litigation, arbitration, some other type of agency claim, anything like that.
Dave: I appreciate the overview. Obviously, I know you and certainly enough of folks who do the kind of work that you do that you’d like to see companies and evaluate risk before something actually comes about. I guess the question for a lot of companies is can you do that? Is there a way for you to really evaluate something that hasn’t occurred?
David Monks: Yeah, there is, and it’s actually one of the areas that we really try to focus on and help employers understand because there are things they can do tangibly to help them reduce, drastically minimize the chance that they’re going to face some type of legal problem, and the main tool that we like to use is a workplace audit, and that audit can be very comprehensive, or it can be focused on just a couple of areas, whatever the client might need at the time. And that audit generally tends to involve a number of areas.
David Monks: We actually have a formal checklist that we use, and we’ll discuss with the client all these areas and explore with them their practices and policies. So it involves hiring practices, benefits, immigration compliance, prevention of harassment, discrimination and retaliation in the workplace. Wage and hour compliance is a huge one in today’s legal environment, the protection of valuable relationships and trade secrets and other confidential information, performance evaluation and management practices, workplace safety, record keeping, pretty much any topic that covers in the workplace is one that our checklist will touch on, and so we like to sit down with the employer, their representatives, go through the checklist and talk to them. Do they have a policy? Let’s take a look at it and discuss it.
David Monks: As important if not more important than the policy is what are their practices? Do they properly train their managers to make sure that the good policies they have are being carried out in the right way, are being applied equally across the board and being enforced properly and equally across the board because when that doesn’t happen, that’s when the employees start getting these ideas about not being treated fairly.
David Monks: And so, through that process we assess primarily today’s world. Most of the problems we see come from improper wage hour practices and policies and practices that cause employees to feel that they’re not being treated fairly, and that may involve not getting opportunities at work that others are getting, feeling like they weren’t evaluated properly in their performance, feeling like they weren’t disciplined or terminated for legitimate reasons, and when that happens, employees seek out lawyers, and when they do that, they start filing lawsuits and making claims, justified or not, but it’s going back to the employer’s less than perfect enforcement of practices and application of their policies, and not properly training their managers.
David Monks: That’s where these claims, have their origin. And that’s why for us having the chance to get into the office with the employer, go through the checklist, and really audit the key areas, if not all of their workplace areas, gives us the chance to say to the employer, “Hey, we really think you need to change the policy or the practice or do some training here. Here’s why. Here’s the benefit you’ll get out of it. Here’s the risk that could result if you don’t make these changes, and we’re here to help you do it in the right way and get you in a good place.” And they’re universally receptive to that, and if they are diligent about making those changes, they’ve taken a huge step toward minimizing tremendously the chance that they’re going to have some employees who are going to serve some legal claims for them.
Dave: That’s a great overview of how to manage risk and how to actually, really reduce the potential for something to go south. Having said that, there’s always the chance that warranted or not, somebody’s going to make a legal claim, and my next question is how do organizations from your perspective plan for something to go south, for an employee crisis matter or a claim to come about? What is the kind of planning that should take place for that?
David Monks: Yeah, that’s a great point and great question, Dave, because a lot of companies don’t do it to be perfectly honest. While they take seriously the task of getting policies and practices, they don’t really look ahead and say, “What plan are we going to have in place in case there is some type of crisis involving an employee?” And that could be of course a current or former employee complaining about sexual harassment, publicly particularly, or an employee becomes enraged, extremely emotional, maybe even violent based on being fired or based on what they feel is an unjustified performance evaluation, and you can’t predict when those things are going to happen.
David Monks: But it doesn’t mean you shouldn’t take some action to have a plan in place in case they do, and I think it’s something that employers should realize is it’s a very realistic thing they can do. It’s very much recommended, and what they should really do is sit down with their counsel and with the executive leadership and develop a plan that kind of looks ahead and say, “Oh, what if this happens? How are we going to do it? Who are the experts that we’re going to get involved,” whether it’s a PR expert, a legal expert, an HR expert if they don’t have their own HR team, a workplace safety expert, a workplace violence type of expert, and also have it in writing, what are our first steps going to be? Who’s going to reach out to the lawyer? Who’s going to reach out to the PR consultant? Who’s going to reach out to the workplace violence expert?
David Monks: Also, they should have a plan that talks about what if anything is executive leadership going to say about the problem, especially to the extent it becomes public.
David Monks: And whether or not they have a PR consultant involved, there’s going to be some type of communication, and I think they need to narrow down who that’s going to be to speak on behalf of the company, especially if they don’t have a PR consultant involved. Having the lawyer involved in these issues is critical, and they should make sure that’s part of the plan because the things that the company does through their own executive leaders or through the PR consultant, the things that they do and say, the decisions they make, all have potential impact on their legal exposure down the road based on things they actually do then or things they talk about as far as talking about the things that led to this particular crisis. And for me as a lawyer, I really want to be involved in something like that so that the employer can make these decisions knowing that they’re not going to complicate or aggravate what is already an extremely challenging situation.
Dave: I appreciate you having a sort of a holistic perspective, not just looking at the law and the legal ramifications of it, but also the idea of bringing in other parties for that one, and you mentioned PR, and obviously that rings a bell for me. I guess the question is is how important is it to work with communication experts, insurance experts, and all of the other players that are involved when you’re executing what is generally a legal, attorney-led event?
David Monks: It’s really important, Dave. I’ll give you an example. If insurance is in play, let’s say it’s a complaint by a former employee, a public complaint especially about alleged sexual harassment by a manager, an executive. And let’s say the company has at least potentially some employment practices liability in place. Well, it’s critical as I think any insurance expert would tell you. It’s critical for the company to get its insurance representatives involved right away.
David Monks: For me as the attorney, the workplace attorney, I want to be in touch with that insurance expert, that insurance representative, so that I can keep them apprised of what’s going on. I certainly don’t want my client, the company, to take any actions that might jeopardize coverage through lack of communication or taking some action that the insurance company is going to feel like they’re prejudice in some way. Coverage is an extremely important asset for these types of claims.
David Monks: Another example is an HR expert. If the company doesn’t have its own HR team, for example, and they use an outside consultant, I want to be in touch with that person as well. The HR consultant might be involved in investigating the allegations or probably communicating with the non-manager employees about what’s going on.
David Monks: I want to be involved in that so that I can work in tandem with that person to make sure again, that the messaging they’re doing and the actions they’re taking are not going to create issues that are going to complicate our ability to resolve and defend against the legal issues that are almost certainly going to arise out of a complaint like that.
David Monks: And then even the PR as well. If I’m working with somebody like you who the company has brought in from the outside, as I mentioned before, I want to be involved in those communications. You’re the PR expert. You’re going to work with the people, the executive leaders, that the company who are involved in this and making the decisions, what I would expect from you guys is that you’re going to say, “Hey, this is the message, the release if you will, the press release or the message that we’re going to put out there in response to the allegation or on this issue or whatever. Take a look at it. What do you think?”
David Monks: And that gives me a chance to evaluate whether the content of that message or maybe the way it’s going to be delivered or the tone with which it’s going to be delivered might have some impact on my ability as I look down the road in being able to shortcut and head off any potential claims.
David Monks: And if I see something, I’ll say, “Look, I think we should omit this word or say it like this.” Something like that and work with you guys so again, holistically we’re a team, and we’re taking actions that don’t just address one aspect, the PR aspect or the HR aspect or the insurance aspect or whatever else it may be, but our taking in consideration all the various aspects so that together we can make decisions on behalf of this client, and of course, all with goal of minimizing their potential PR exposure, the PR damage that can result, the employee damage as far as employee morale, and of course, from my perspective, the potential legal claims and legal damage that might happen too.
Dave: Yeah, we didn’t really talk about this beforehand, but you bring up an excellent point as we end this conversation. I want to ask this question. There is times, and I’m not saying for everybody, a reaction from attorneys when a communications person gets brought into place, advocating for, “Look, we got to tell something to the employees because the scuttlebutt, the rumor mill, is in full swing, and press is talking to us.”
Dave: The knee-jerk reaction by some attorneys is to not comment at all, and yet there’s PR professionals like us to say if we don’t, the other side gets to define the narrative. Where do you fit into that? Where is the balance between needing to certainly protect any additional risk you may have in legal matters as a result of a communication plan and needing to get something out there to at least counter what’s being claimed?
David Monks: Yeah, I fall on the side of communication and not just saying no comment. It doesn’t mean in every situation that’s going to be the case.
David Monks: It’s why I want to be involved in the communications. I can understand from the perspective of the PR consultant and the executive leadership why they want to make a certain message, and if I have that understanding, and I can incorporate that into my calculus about what effect it might have and the other issues that I have in play, then I can provide some feedback on how I think it’s going to play in a situation, and as long as I’m involved in that, I think on the whole it’s better for their communication rather than not be, whether that’s with the public and of course, that’s your field of expertise, but internally within the company, I don’t think it’s a great idea for executive leadership and management to keep the other employees in the dark about what’s going on. It’s not to say they need to divulge everything that’s going on-
David Monks: … things like that, but I think it makes sense because you want to preserve employee morale. You want to avoid inaccurate rumors that could really influence the way people remember things, and from my perspective as a lawyer, these people who, these current employees, some of whom are potential witnesses, they saw or heard the interactions between the complaining former employee and the alleged harasser, and their perspectives and their recollections, which I may not be able to explore for a year or two depending on when the legal claim is made, and what the investigation calls for and things like that.
David Monks: Their current experiences in light of what they’re hearing through rumors or not hearing, and making speculation about what happened or didn’t happen, that all impacts how they remember things. And I think it’s better on the whole for the company to at least acknowledge, “Hey, there’s something going on. This is what we’re doing about it. We care about it. We’re not going to ignore it. We understand there’s some concerns, and there’s going to be some questions. We have a person in place who you can go to for questions. We may not be able to answer everything, but to the extent we’re able to, we want to make sure you understand that we do have the situation in control. Again, we care about it, and we want to resolve it in a way that’s in the best interest for everybody involved.”
Dave: We’re going to leave it there. This has been great information. You’ve been so kind with your time. I know how busy you are. David Monks, thanks again for being part of the program.
David Monks: My pleasure, Dave. Thanks for having me.