Published on September 20th, 2016 by Alan L. Sklover
“If you don’t want anyone to know what you are doing, just don’t do it.”
– Yiddish Proverb
ACTUAL CASE HISTORY: Amy, a friend of many years, called my office one day, asking if she might speak with me confidentially. And she didn’t want to speak on the telephone. So we agreed to meet in a coffee shop the next day.
What she shared with me was quite unusual, and disturbing: she was a Senior Project Manager with a large real estate and construction firm. For almost a year she had been working on the construction of one of New York City’s most famous “new landmarks” and had encountered a problem. She was asked to do something that made her nervous. She didn’t know what to do.
Recent tests on the building’s concrete foundation showed mixed results. Since the tragedy of 9/11, foundation strength standards had been raised, and only about 2/3 of the building’s tests showed sufficient strength. Although not really a part of her job, she was brought in to the central office and was asked to “cherry pick” the positive reports, and discard the reports showing deficiencies, before submission to the City’s Department of Buildings. To say the least, she was frightened.
At least those were the facts as Amy knew them. Since she was not an engineer, and was not specifically trained in reading the reports, she was relying on the discussions among the engineers on site. She understood that there was a problem from conversations with engineers she believed to be knowledgeable in these matters. And she was suspicious from the very moment she was asked to present these reports to City officials and insurance representatives, as her usual duties had nothing to do with foundation tests. Was she, she wondered, being set up as a scapegoat?
Was there a “right” or “ethical” thing to do? Whatever was the ethical thing to do, could it hurt her job and career? These were very weighty concerns.
LESSON TO LEARN: Issues like the ones Amy faced are not that unusual. These days, it seems nearly every company is under pressure from investors and others to (a) cut corners, (b) bend the rules, and (c) twist the truth, usually in the name of cost savings or deadline pressures. It seems more often than in previous times that commercial considerations are coming into direct conflict with ethical concerns.
The issue might be one of public safety, or it might be a matter of tax evasion. Or pressures to cheat customers. One day it might be one issue; the next day it might be a different one. Whatever the issue, the dilemmas abound. It’s often hard to know what to do, when competing pressures are upon you. And those pressures can take their toll.
For those in this circumstance, we offer a rather simplified analytical tool that we sometimes call “The Six Questions to Ethical Clarity.” It is a set of basic, simple questions to ask yourself to figure out what is right to do when you’re simply not sure.
One thing about what is “right” to do: it can depend on one’s experience, one’s perspective and one’s judgment. That is, we all sometimes have “blind spots” in different situations. For that reason the question “Is it right to do?” often suggests getting the views of others with experience, perspective and judgment you trust. Just think about it: even the greatest ethicists of all time can and do disagree at times about “Is it RIGHT to do THAT?
WHAT YOU CAN DO: We do not claim any exclusive right to these six questions, because the ideas underlying them are commonly found in published articles, like this one, about ethical dilemmas in different situations. However, we present them to you in the context of issues that arise during employment, along with certain insights gleaned from the our client experiences over three decades.
1. Is it legal? Without any question, if what you are being asked to do is plainly illegal, and you do it, you are placing yourself – as well as your job, your career, your reputation and maybe even your freedom – into substantial risk. Remember that once a bad deed is done, it probably cannot be undone.
In almost any situation, you can presume that “illegal” and “wrong thing to do” are the same thing. Then again, there are exceptions even to that general rule: it might be illegal, yet the right thing to do, to drive 55 miles per hour in a 45 mile per hour speed zone in order to rush a dying person to a hospital.
Quite often, it is not entirely clear whether an act is legal or illegal. What do you do then? Your choices are three: (1) confidentially seeking legal counsel and advice from a lawyer of your own choosing, (2) submitting the question to in-house legal counsel or a (supposedly confidential) company ethics hotline, or (3) entirely non-confidentially, seeking input and direction from an outside government agency or trade association.
Every situation is different, but as a very general matter, I suggest you begin the process with (i) first, confidentially conferring with a lawyer of your own, who by legal ethics must maintain confidentiality about anything you share with him or her, (ii) second, as a general matter, in-house counsel who works for your employer, and (c) third, as a last resort, only, someone from a government agency or other authority.
Violating a law in your work is automatic grounds for being fired, without notice, without severance, and without even bonus, commissions or equity you have earned – even if you were directed to do the illegal deed by your manager. “I was told to do that” is simply not an excuse.
One thing to bear in mind: the job of an attorney who works for your employer is to protect your employer, not necessarily to do “what is right,” and not at all to protect you. So, if you approach an in-house attorney, bear that in mind, and take what they say with that caveat.
Bottom line, if something is illegal, or may well be illegal, it is probably unethical and surely risky, so you should find a way to avoid doing it, or simply discuss your reasons for declining to do so. And sending an email memo to yourself, marked “to file,” a copy of which you send to your personal email, may be a wise way to make a written record of what transpired.
2. Does it violate any of your employer’s policies? Most significantly-sized employers maintain a list of Company Policies, Employee Policy Books or Employee Handbooks that spell out the organization’s policies. They are usually made available online or are available from HR. Some are mandatory, and some are advisory, only. In either case, as a general matter, if what you are asked to do violates a company or organizational policy, you ought to find a way to politely decline the request or directive that you do so.
Organizations and businesses create policies to establish what they view to be the “right” thing to do, and provide notice to their employees of what they have decided. It is sort of a street sign that says “This is right. That is wrong.” As a general matter, those policies are what should guide you in your decisions. If your reading of a company policy leaves you unsure, you can seek clarity by seeking guidance from your company’s human resources department, compliance department, or in-house lawyer(s).
While violating a company policy is not as serious a matter as is violating a law, and will not likely put you in jail, it may well have the same other negative effects for your job and career as does violating a law. While not all company policies lend themselves to provide clarity on ethical issues, they are the product of a lot of thought and consideration by those who put them together, and therefore are a pretty darn good set of guidelines, at the least.
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3. Is it consistent – or inconsistent – with the values espoused by your employer? I cannot count the times that I have read a letter from the company CEO to the company workforce that espouses company values. You can probably find one such letter as an introduction to your employer’s Employee Handbook, or perhaps as a preface to its Annual Report to Investors.
What are “values?” Simply put, what a person or group thinks is most important. How can you discern a person’s or organization’s values? NOT by what they say, but much more accurately, by what they DO. As an example, if a company espouses concern for the environment, but regularly dumps toxic wastes in public waterways, it cannot be said to “value” the environment, no matter what words are written or spoken.
Still, what is written, spoken or otherwise espoused about “company values” can be reviewed to decide what “is right to do.” Espoused company values are a more generalized guide than are company policies, but they provide some degree of guidance, nonetheless.
4. Will it advance or interfere with the company’s or organization’s long term goals? A client once asked this question: “My boss asked me to notify a competing company that our firm has regularly used their copyrighted works without first gaining their permission to do so. Is that something I should do?” The question was replete a variety of ethical concerns.
Might that be against his own employer’s interests? Was it something that he was being set up to do? Could it have been a case of extremely poor judgment by his manager? Could he get fired for doing that, even though he was directed to do so? Was he being tested?
The decision we arrived at together was that it could harm the company, and despite his manager directing him to do that, he email his boss that, in light of potential long term harm to the company, he wanted to bounce by his boss the idea of asking the company’s in-house attorneys to look over what he was going to say to the other company. With that, his manager withdrew the request, and the matter was thus resolved.
There is nothing wrong with being prudent, although it’s best to be prudent in a delicate way, as open defiance of your manager’s directive could be viewed both as disloyalty to your boss and insubordination to your employer.
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5. Will you be comfortable if what you may do becomes known to your family, your friends, your neighbors, or the public? The Yiddish proverb set forth above is one of my very favorites. It suggests there is a guiding power in the sense of shame. You often do know – “in your bones,” so to speak – what is right and what is wrong by imagining your family, friends and neighbors finding out what you did in this situation. Will you feel proud? Will you feel ashamed? That will almost surely provide you with the compass of sorts that you need.
6. If I do what is right, will it help my job and career, or possibly hurt it? While this question is separate from the others, the consequences of your actions are a relevant factor in deciding what to do.
What is best for you is a question we could discuss, debate, deliberate, and cogitate over for many, many hours. We just don’t know what the future will bring. At times, the answer will be “hurt your job and career” and at other times the answer may be “help them.”
Your own interests are intertwined with your considerations in these issues, and also represent the “lens” through which you see the facts, events and circumstances all around you. Being honest with yourself that you also have a loyalty to yourself is not something to be hesitant about or ashamed of. Not one bit.
For me it is simple: If your default position is “Do the RIGHT thing, and do it CAREFULLY, then over the long run you will do best for yourself, your family and career. You might later be considered “too honest” or “too careful,” but I would not find those to be necessarily a bad thing.
P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.
In Sum . . .
“Is it RIGHT to do THAT?” is never an easy question to answer, and sometimes even more difficult at work. We present six questions to help you guide yourself to your best answer. Whatever you do, do what you deem is RIGHT, and then do it CAREFULLY.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you, and know what to “watch out” for. The rest is then up to you.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do all you can to achieve the best for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” Figuring out “what is right” and then doing “what is right,” can be among the most difficult choices at work. It’s often difficult to make the wisest choices. But that is exactly what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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