Workplace Negotiating Insight No. 17: Don’t be too Rational . . . It’s not Logical.

Observe and Learn:

It happens quite often . . . clients share with me their frustration, their disappointment and their difficulties at work due to the seemingly irrational behaviors of others.

Underlying these frustrations and disappointments are their views that some other person they are dealing with is not acting rationally.

Here is an example: “If he just scheduled our team meetings on Friday, then the entire team could attend, and that would prevent so many miscommunications.”

Here is another example, “If she would just approve one more staff member on my team, all 12 of my other team members would be more effective, and we would more than make up the cost. I just don’t understand her thinking.”

Often, my response is this: “It is not wise to expect people to be rational because when you do so, you are not, yourself, being logical. Logical people recognize and incorporate into their expectations that people are both rational and irrational, and often more irrational than rational in nature.”

What so many people miss – and in doing so cause themselves untold difficulties – is that so very much of people’s behavior is not based in rational thought, but rather in emotion.
Some people go so far as to suggest that most of human behavior is not rational, but emotional.

Fear, greed, lust, insecurity, control, pity, revenge, and other emotions so often lurk beneath the surface of daily life, and underlie even our loftiest decisions.

Not taking into account these powerful emotional motivators makes you so rational that you are not, yourself, being logical. And often the key to getting whatever it is you seek lies in your appealing not to others’ rational minds, but rather to their emotional needs.

And, this is not a one-way street. As the saying goes, “Understanding other people’s motivations is very hard. Understanding your own motivations is even harder.”

So, in dealing with others at work, navigating and negotiating through your work day and work life, bear in mind that expecting 100% rationality is so, so often simply illogical.

Observe and Learn.
Then Navigate and Negotiate.

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© 2018, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Agreements without Page Numbers, Section Headings, or Paragraph Letters are Trying to Hide Things from You.

Observe and Learn:

I consider myself a “contracts lawyer” because I review, analyze and negotiate so many employment agreements, severance agreements, non-competition agreements, retention agreements, settlement agreements, partnership agreements, and the like, day in and day out. And I have been doing this for 35 years.

Time and again, I feel like I can “see through” the spirit of an agreement or contract that I have been given to review, and time and again, it turns out, ?I am correct in one important regard.

A long time ago I noticed something puzzling: whenever I reviewed an agreement that contained no page numbers, no section titles, and no paragraph letters (or very few), almost always I also noticed something else: each of these agreements without the usual “road signs” contained one or both of the following:

(a) a very dangerous or negative provision “hidden in the weeds,” that is, located in a place no one would look for it – as an example, a non-competition provision located in the middle of a paragraph about the address to send notices – or

(b) something very important to my client – like the amount of bonus to be paid him or her – for some unknown reason, completely missing.

“Gosh,” I say to myself, “why is “this” located “there?” Or, “How could they possibly have forgotten that?” “Who could make such an error?” And, finally, “Could it possibly have been a mere error or coincidence?”

This reminds me of the time when, years ago, my wife rearranged our clothes closets. My socks ended up in the night stand, along with my ties. My shoes were, for some reason, hung up where my suits used to be, and my shirts were spread out in two closets and one drawer. To this day, many years later, I still have never found my favorite pair of blue socks. Somehow, though, seeming miraculously, my wife ended up with a lot more closet space than she had before!

The lesson is this: be very, very suspicious of agreements that do not have page numbers, section headings, or paragraph letters (or very few of them), what I call the “usual contract road signs.” Whether by error or intention – and I now presume intention – drafting an agreement this way is not conducive to people understanding the meaning and effect of the agreement, unless they have read it very carefully, many times, with a “suspicious eye.”

Read these contracts extra carefully, and if it is a contract important to you – which they all usually are – consider a legal consultation, as well.

Is this just my imagination? I don’t think so. Derived from my intuition? Maybe. Based on my experience? Definitely. Becoming more common? Absolutely.

Observe and Learn.
Then Negotiate.

© 2017, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Need to send a memo or letter? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

Interested in Membership? It’s free, and has advantages, including discounts on our products. Just [click here.]

Need a private telephone consultation? Just [click here.]

 
“People don’t mind being used,
but they don’t like being discarded.”

– Unknown

ACTUAL CASE HISTORY: Barbara, a Human Resources Vice President, had worked for 12 years for a large Midwestern hospital, where she oversaw professional staff development. All seemed fine at work, and she was soon to take a vacation. She called us at the suggestion of a former client of ours.

Barbara had just received a telephone call from another HR professional she knew from attending conferences on the topic of professional staff development at hospitals. The purpose of the call from her colleague was to inquire about the hospital’s overall company culture and, specifically, its “family-friendliness.” Barbara’s colleague also asked her “Do you mind sharing with me why you are leaving?”

Leaving? Barbara had no plans to leave. The caller explained that she was told by an executive recruiter that Barbara’s position was soon to become available, and he was assembling a list of candidates to fill Barbara’s position. Barbara did not know what to say, and finally uttered, “There must be some mistake.”

Barbara found it hard to catch her breath. Was this a mistake? Was someone disappointed in her work? Her performance reviews had been “Exceeds Expectations” for years. She had not been accused of any bad behavior. Who should she speak with . . . if anyone?

Mistakes of all kinds happen. Was the caller confused about what she had heard? Was the recruiter in error? Was it possible Barbara was being replaced? Might her compensation be too high? Her creativity too low? All sorts of questions were buzzing around Barbara’s mind.

LESSON TO LEARN: In your experience, do you believe most employees find a new job before they resign from their present one? Sure, that is exactly what most employees do. Should employers do the same, that is, find a new employee before they terminate one? From their point of view, that is the exact same thing.

Is it disloyal for an employee to find a new job and then resign? No. Well, from an employer’s point of view, it is not at all disloyal for an employer to find a new employee and then terminate the one they have. Yet, most employees feel upset, perhaps taken advantage of, or abandoned, if they find out their job is being “shopped.” Why?

I think the anger, upset, even sense of being “discarded” by means of disloyalty felt by employees who find out their job is being “shopped” is due to the seeming “behind the back,” secretive nature of it all. It would seem so very “up front” to (a) be told there is a problem, and (b) work together on an orderly transition. The problem is that neither employees nor employers ever act so “up front.” They act to protect themselves and their interests. You must admit that few employees tell their employers they are out interviewing, but rather “behind the employer’s back” find a new job, and then resign.

All that said, the employee’s feelings of dishonesty, abuse, disloyalty and abandonment are real, and not to be ignored. But, your responses to hearing your job is being “shopped” cannot be based on emotions. Instead, they must be based on clear thinking, and be a focused, rational response.

If what happened to Barbara ever happens to you, what should you do? Who should you speak to . . . if anyone? Should you begin a job search of your own?

Having helped clients in this circumstance, we share with you the responses, and the order of responses, we have found are best to make in this circumstance. Taken together they represent a mindful plan of action, which is the best response of all.

WHAT YOU CAN DO: If what happened to Barbara ever happens to you, consider these steps, and, of course, modify them as seems most sensible to the specific facts, events and circumstances of your job, career and life:
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“In a room where people unanimously maintain a conspiracy of silence,”
one word of truth sounds like a pistol shot.”

– Czeslaw Milosz

ACTUAL CASE HISTORY: John Slowik, the former Chief Compliance Officer of Olympus America, Inc., the largest distributor of endoscopes in the U.S., discovered that his employer was paying bribes to win new sales. When he reported this to his employer, he learned the meaning of the old saying, “Tell your boss the truth, and the truth shall set you free.” Simply put, first he was retaliated against and, soon after, he was fired.

Slowik had discovered that Olympus was obtaining sales by giving away free medical equipment, paying for luxury vacations for physicians and their families, making hundreds of thousands of dollars in cash payments to physicians masqueraded as educational grants, lavishly wining and dining physicians, and paying exorbitant consulting and speaker fees to physicians. And, just as you might imagine, many of these payments were paid by you and me by means of higher prices paid by Medicare and other publicly funded insurers.

Slowik retained legal counsel experienced in employment law, who understood the gravity of what Slowik had reported. Slowik then sued Olympus based on allegations that the company had violated a federal law known as the “False Claims Act,” and a second federal law known as the “Foreign Corrupt Practices Act.”

Slowik had worked for Olympus for 18 years, starting as a finance manager, and through a series of promotions, in February, 2009 was appointed Olympus’s first-ever Chief Compliance Officer. He had no healthcare compliance background, and had only one employee, who also had no compliance background.

After Slowik sought to eliminate these systematic illegal practices, (i) his complaints fell on deaf ears, (ii) he was told to back off and instead “work around the rules,” (iii) his duties were diminished, (iv) his reporting line was lowered to the Head of the Ethics Department, (v) his compensation was frozen, (vi) he was increasingly isolated from others, and (vii) he was evaluated as a poor performer. Finally, (vii) he was terminated for poor performance.

To resolve Slowik’s lawsuit against Olympus, which even resulted in federal criminal charges against the company, Olympus agreed to pay fines and penalties to the U.S. government of $646 million, out of which Slowik was awarded $51 million.

In addition to the required payments, in order to avoid criminal prosecution, Olympus also agreed to:

• Hire an experienced Chief Compliance Officer, who will be a member of senior management, and report directly to the Board of Directors;
• Make the Chief Compliance Officer position not subordinate in function or authority to the General Counsel;
• Expand the Compliance Department from one full-time position to 19, and fund it appropriately;
• Engage independent third parties to conduct risk assessment targeted to compliance risks;
• Implement an anonymous reporting hotline, and
• Begin compliance training for all employees.

What happened to Slowik was a truly classic example of the treatment afforded so many Compliance Officers who raise sensitive issues of non-compliance with rules, regulations and laws. Often, there is just too much concern in the minds and hearts of management for the financial consequences of “playing by the rules.” How ironic it is that Slowik was fired for poor performance; in the end, he did quite a good job improving Olympus’s compliance organization.

Slowik’s whistleblower complaint did a great service for Olympus. But did it have to be so expensive for Olympus and so damaging to its relations and reputation?

LESSON TO LEARN: What happened to Slowik vividly illustrates an important point for all Compliance Officers, and for all other employees, as well: there are more ways than are commonly thought of to achieve true compliance in the workplace. In addition to “internal efforts,” the many state and federal so-called “whistleblower” laws stand ready to assist.

Can a fired Compliance Officer make use of the many whistleblower laws? Sure. Can a Compliance Officer do so if he or she is still employed? That is a great question, from both legal and ethical perspectives. I believe the answer is surely “Yes,” because in the end, the shareholders’ interests are aligned with the corrective purpose of whistleblower laws, and surely out of alignment with those who act – supposedly on shareholders’ behalf – in violation of applicable laws and regulations. And, too, the larger societal interests are best served by enactment of rules, and the observance of those rules.

Do we need all these rules and regulations? Do we need all these whistleblower laws? Considering Olympus’s and John Slowik’s experiences, apparently we do. Surely, the Olympus story offers a cautionary tale to other endoscope manufacturers, and others, as well, who might be tempted to “throw a party” for physicians at the public expense.

WHAT YOU CAN DO: Keep in mind that efforts to gain company compliance with applicable laws and regulations are not limited to working internally. The many whistleblower laws and programs that exist do “have your back.” Here are seven thoughts to bear in mind:
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“I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.”

– Steven Wright

ACTUAL “CASE HISTORY”: Charlene, a furniture designer, had been with her employer for seven years. She was happy in her job, was well-liked, and quite productive. Her job was a short commute from home, and her manager was family-friendly. All was good.

One morning she received an email from the Human Resources Director, addressed to all of the company’s 150 employees, advising them that the company was updating all of its employment practices, and for this reason all employees were required to sign an updated “Confidentiality and Inventions Agreement” to safeguard the company’s trade secrets and proprietary information. (Rumor had it that a private equity firm might be interested in buying Charlene’s employer, and it was for this reason that a new, revised Confidentiality and Inventions Agreement was being required.)

The agreement was six pages long and contained a lot of complicated legal language. Charlene thought she understood it, but there was a lot “legalese” in it. She considered having our firm review it with her, but knew it would cost her a consultation fee of hundreds of dollars. When she called, she mentioned the unfairness of her employer requiring her to pay to review a document that they needed, not her.

We suggested she simply ask for the cost to be reimbursed. Sure enough, she did. After a few emails back and forth, her employer agreed to treat it just like any other business-related expense. Charlene was pleased. We were pleased, and now we suggest all employees in this situation do so. You never know. Sure is worth a shot.

LESSON TO LEARN: If you don’t ask, you won’t get. So long as any workplace request has the “Three R’s,” that is, it is (i) Respectfully presented, (ii) Reasonable in what is sought, and (iii) is based on a sound and logical Rationale, there really is no downside to making it.

The logic is simple: When someone wants something from you, and even moreso when they need it, there is nothing wrong with asking for something in return, especially the amount of money it will cost you to provide it for them.

Who knows? You might just get what you want. In this context, your chances are pretty good. Why not give it a try?

WHAT YOU CAN DO: In most – but not all – workplace instances of your employer asking you to sign an agreement, consider asking, in return, before you sign the agreement, that your employer agree to reimburse you the cost of an attorney’s review and consultation. Here are some tips in doing so:
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