Company Policies and Procedures are Not the Law
Admittedly I'm straying a bit from the business LAW theme of this blog, but when I came across this story in Business Week I knew I had to share it. You may already be aware of this story because it apparently has become quite a phenom, but somehow I missed it until now.
Musician Dave Carroll was traveling via United Airlines with his band mates from the band Sons of Maxwell. While sitting on the tarmac, they witnessed their instruments being tossed around by the ground crew. They reported the incident that second, but according to United Airlines the official report that one of the guitars had been officially damaged was not reported to the official official until after the company dictated 24-hour deadline. Carroll spent nine months trying to get United Airlines to do the right thing, and when he reached the final, official "no" from a company representative (identified in the song as "Ms. Irlweg"), he promised he would write, perform and post three videos about the incident on YouTube. The video link above is the very entertaining first installment of the planned trilogy.
After the video attracted more than 3 million viewers on YouTube, United Airlines agreed to donate money to a charity as an apology to Mr. Carroll. The complete story can be found on Dave Carroll's website.
Lesson for all businesses: I've not yet been involved with a case where the offending company was attacked by way of song, but I get calls every week from companies that let minor situations get out of hand and are now the subject of attack blogs. Your company's policies and procedures are not the law, so don't cite them as justification for rejecting a legitimate complaint. Indeed, even if the law is behind you, that's no basis to deny a valid claim. Do you really want your business practices to be no better than the minimum required by law? Look at what happen to Bank of America when it tried to quote the law to our client. When you receive a customer complaint, consider that you may be dealing with another Dave Carroll.
If Someone is Offering a Walk-Away, Listen
Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory today in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie I just saw.
The movie was Taken, which I thought was very good. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnaped. He hears the bad guy pick up the phone, and he calmly gives the following speech:
I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.
Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.
Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”
That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life, or at the very least his finances, in a bad direction. I am less of an advocate and more of a care giver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.
In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking that since he had hidden his identity and lived across the country we would never find or pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, and to pay my client over $200,000. I suspect, if he had it to do over again, he'd take the walk-away.
Lesson for all businesses: Pick your battles. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in today’s case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them, know when to walk away and know when to run.”
Employment Lawyers Warn Against Glowing Reviews on LinkedIn
Corporate employment lawyers can be real buzzkills. I'm reminded of the early days of the Internet when the corporate types were warning all us lawyers to take down our websites because they crossed state lines and therefore constituted the unlicensed practice of law in other states. Now, when everyone is hot on social networking through sites such as LinkedIn, the employment lawyers warn of dire consequences if employers post nice comments about their workers.
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You see, when an employee is terminated and a lawyer is looking for a way to claim it was wrongful, they look first to the job evaluations and any awards and accolades. If it can be shown that the employee walked on water, then obviously there was no reason to fire the employee and the termination must have been based on some nefarious reason, such as discrimination.
Sadly, a company's compassion can get it in trouble. A company is forced to terminate an employee due to downsizing, so to give his job search a little boost it creates a recommendation for the employee's LinkedIn profile. An employment lawyer will spin that by arguing that at the very moment the employee was being terminated, the company was saying glowing things about him. When interviewed by Law.com, Philadelphia lawyer Carlyn Plump had this to say about that:
"Just don't do it," Plump said. "Generally, my advice is that I think employers are often better served by merely stating dates of employment, positions with the company and salary, and staying away from much more because there are so many potential ramifications if they say something." She added: "If they say something negative, there could be a lawsuit. If they say something positive, there could be a lawsuit." The entire Law.com article can be found here.
My philosophy? It's not all about avoiding lawsuits. Employers should not be fearful to heap some praise on good and faithful employees just because others file frivolous suits. In any event, for an unfortunate number of plaintiff's attorneys, wrongful termination actions are a form of legalized extortion. They will sue regardless of the merits of the case, hoping for a "cost-of-defense" settlement, and the fact that you said something nice about the employee on LinkedIn will not be the deciding factor.
