Published on May 2nd, 2017 by Alan L. Sklover
“Without accountability, we cannot expect responsibility.”
From each and every event and circumstance, we can take away important lessons to guide our future actions. Some are obvious, others not. Some are important, others not. Bill O’Reilly’s recent contract termination by Fox News – despite his stellar ratings and very significant contribution to its revenues – offers one lesson for working people that, I believe, stands out among others. And, oddly enough, it has little to do with whether or not Mr. O’Reilly was “guilty as charged.”
This newsletter is less a “letter of news” than it is an observation on a societal change, and employees’ need to consider adapting to address change, in this order:
A. The Powerlessness to Resist or Object in the Workplace
B. The Usual Safeguards are Just Not Safeguarding
C. “Isn’t Human Resources there to Protect Employees?” Simply put, “No.”
D. Is there a workable path to Standing Up and Getting Accountability at Work?
E. How about Employment Litigation?
F. Consider Going “Outside” the Company instead of Remaining “Inside” to get Relief and Remedy
G. Appeals to the “Outside” is what Did, Finally and Thankfully, Change the “Inside.”
H. Examples of How “Going Outside” can be more Effective than “Staying Inside”
I. The Significant Advantages of such “Alternative Negotiation”
J. Lawyers, Judges, Law Professors and Other Legal Professionals Will Likely Scoff
K. No, I don’t suggest overt threats of extortion, but instead careful use of creative steps that keep employers’ various interests in mind
- A. The Powerlessness to Resist or Object in the Workplace
As context, it is my firm view, as an employee advocate for almost thirty-five years, that the employer-employee relation is now more insecure, precarious, distrusting, and at times contentious, than ever before. That makes simple sense, as the employment relation is a central “thread” in the larger social fabric. Just as we see in our politics, our media, and our social discourse, so too do we see less security, greater fear, less courtesy, more meanness, at the workplace. It seems more than ever that “power gets privilege” and, as my immigrant mother taught me, “Without accountability, we cannot expect responsibility.”
Simply put, the seemingly never ending competition to “do more with less” and “drive profits no matter what,” sometimes makes employers “look the other way” when their money-makers break the rules. From the employer perspective, it seems to be viewed as “worth it” to spend millions of dollars to settle case after case of alleged rule-breaking, regardless of the legal expense. From the employee perspective, the burden of potential legal expense makes many feel cynical and then powerless to stand up to even what seems a plainly illegal or improper course of conduct. Can it be wondered by a heightened level of cynicism of powerlessness has taken hold?
Part of this sense of employee powerlessness at work is surely seen in what seems to have happened at Fox News in recent years: female employees afraid to report, object to, even at times to resist, improper and illegal behaviors, no doubt in fear for their jobs and careers.
- B. The Usual Safeguards are Just Not Safeguarding
The very first safeguard to improper and/or illegal conduct at work is, simply, personal self-control. The second safeguard is, again simply, the standards of morality of those in higher positions of authority, who may have to sacrifice dollars to uphold principle. It is beyond dispute that Fox News thought that the reportedly $13 million it spent for settlements was a good business proposition if it enabled the company to continue to enjoy the O’Reilly-derived revenues.
Fox News is now asserting that it has a “Confidential Employee Hotline” to which employees can report complaints of wrongdoing by their managers without fear of retribution. Funny thing is that those who call the hotline are told that, in order for the company to investigate their complaints, they had to provide their names. Can you doubt the resulting cynicism?
This “confidential hotline path to resolution and remedy is found at almost all large employers, yet it is rarely used. Why? These assurances of confidentiality, and the espoused dedication to taking seriously employee complaints simply cannot overcome management’s duty to its shareholders. Fire Bill O’Reilly? Are you crazy? In fact, I have advised employees for over three decades not to use such supposedly confidential “Employee Hotlines” or “Omsbudspersons,” because I have seen far, far, too many people identified, and retaliated against, after doing so.
- C. “Isn’t Human Resources there to Protect Employees?” Simply put, “No.”
For many years, employees have attempted to address irresponsible and illegal behaviors by managers by alerting their employer’s Human Resources representatives. On the surface, at least, that seems to make sense, because nearly every single employee handbook suggests that contacting Human Resources is the employee’s path to protection, if not remedy. No, it is not. It is the path to having Human Resources sit down with management to determine their best path to avoid the risk of lawsuit, the risk of exposure, and the risk of accountability. That’s what happened at Fox News, and it should not be a surprise that this is what takes place elsewhere, as well.
Among those who have practiced employment law for many years, first contacting Human Resources has come to be near universally recognized as a serious strategic mistake, as the real function of Human Resources is to “manage human resources” for the benefit of management and, in turn, the shareholders. Hence their name: Human Resources Management, or in some companies Human Capital Management. Though implied, suggested, intimated and insinuated to the contrary, it is not the job of Human Resources personnel to “make things right,” “maintain law and order,” or “police the hallways” of employers. No, not at all. Not in the least.
And Human Resources Representatives will be the very first to admit that. Indeed, I represent many Human Resources managers and Directors, and they all share with me their know that their predicament created by that “Sherriff” concept suggested in every Employee Handbook and pronouncement.
No, the true function of Human Resources is to (a) acquire, (b) maintain, and (c) dispose of – gee, I hate to use this next phrase – “human resources.” Employers have capital resources, facilities resources and “human resources” that are all to be utilized to their greatest benefit to the shareholder.
This objectification of human beings – right in the very name of the department – says a lot in itself. Going to “Human Resources” is not the path to “making things right,” no matter how many times you are encouraged to do so – by those whose job it is to “manage” you if your first “manager” cannot, has not, or needs ideas of how to. Somehow, HR has been provided the gloss of the cop on the beat, the protector, the people who “make things right.” Honest HR folks will candidly admit that “That is not our job, and that expectation is not realistic.” You may notice not a single HR representative has a badge on their chest or a pistol on their hip.
- D. Is there a workable path to Standing Up and Getting Accountability at Work?
Some employees, and their advocates, have tried going over the heads of their employers’ managements to their Boards of Directors. In my decades of experience, Boards rarely permit themselves to get involved in “personnel” matters, and simply ignore most pleas for help submitted to them. Still, though, every now and then they do have to enter the fray, and take decisive action, as they surely did – for the benefit of the shareholders –in the O’Reilly Debacle. Isn’t that interesting.
The Wells Fargo Board of Directors did so, as well, after thousands of employees were fired for “cause” for doing what they were required to do, while Senior Management rewarded itself with tens of millions of dollars with the illegal results of their efforts.
- E. How about Employment Litigation?
And then there is the possible avenue to workplace relief and remedy by court litigation or filing a complaint with a public rights agency. Does anyone in the world doubt that large employers have the financial resources to keep lawyers busy for years, while even a week of lawyer time can bankrupt many employees?
Does anyone in the world not know that this can make one literally unemployable, no matter who “wins”? No, in light of its costs, duration (frequently years) and potential career effects is, and despite occasional headlines, employee litigation is more often than not path to fool’s gold.
This is not to dismiss altogether the potential efficacy of “going to Court” or threats (expressed or implied) to do so. We should not forget that it was a few courageous women who brought Roger Ailes and Bill O’Reilly to arbitration (required by Fox News to keep such disputes forever covered up in secrecy) that set the foundation for the O’Reilly Debacle. On the other hand, it also should not be overlooked that the successful litigant against an employer is not the rule but the exception. Nor can we forget that those who did hire counsel and raised their rights against Roger Ailes and Bill O’Reilly in arbitration are not today employed anywhere near the level they once were.
- F. Consider Going “Outside” the Company instead of Remaining “Inside” to get Relief and Remedy
For several years now I have been increasingly successful in negotiating for my clients with their employers (and former employers), and the answer increasingly has been to “Go outside to affect what is going on in the Inside.” In fact, analyzing negotiation strategies with this in mind has become something of a bedrock principle of my practice.
That is precisely what happened in the Bill O’Reilly Debacle: Fox News did nothing, for years, to protect women who were allegedly pressured and worse in a sexual way by Roger Ailes, the CEO of the network, and Bill O’Reilly, its biggest star and money-maker. Fox News Human Resources did nothing, Fox News lawyers did nothing. The Fox Board did nothing, other than to approve millions and millions in settlements to “buy the silence” for a few who were courageous – if not crazy – enough to stand up and arbitrate, ignoring the very real fears of debilitating expense and career damage, or even career end.
Nothing stopped the alleged harassment and haranguing, the teasing and the touching, the comments and the come-ons. Save for a few instances nothing but retaliation was heaped upon those who either resisted or reported the illegal and immoral behaviors. To this very day, Bill O’Reilly’s lawyers claim nothing untoward happened – and that Fox News had paid out some 13 million dollars for no real good reason. Until, that is, the “Outside” impinged on the “Inside,” and then all of a sudden – voila’ – everything changed.
Is “going outside” the usual pathways to pursuing relief and remedy to be used on its own?” I think not, but the general approach, with its many “sub-pathways” must be considered when workplace negotiating abuse, damage or harm to an employee or former employee.
- G. Appeals to the “Outside” is what Did, Finally and Thankfully, Change the “Inside.”
One by one, and then ten by ten, and on and on, advertisers announced they would no longer advertise on The O’Reilly Factor, and then – Heaven forbid – the entire Fox Network. Why? It was the fear of being affiliated with, if not condoning, wrongful behavior, and even worse, support of that behavior by a Fox’s Management, its Human Resources personnel, its lawyers and even its Board of Directors.
Then, before you could count the number of complainants, the Fox Board and the sons of Rupert Murdoch, the company’s founder and Chairman, “saw the light.” Yes, they, too, came to disdain – and distance themselves from, that improper, illegal and immoral behaviors that they treated as “a-ok” for years before then, well, at least good for business.
So, Bill O’Reilly joined Roger Ailes at the unemployment office, so to speak. Their reportedly large severance packages are a matter of speculation, if not fictions imagined and transmitted by their publicists, and surely soothing for their egos and images.
- H. Examples of How “Going Outside” can be more Effective than “Staying Inside”
As noted above, for years I have found that the answer to the powerlessness that employees feel when not treated correctly by their employers is to go outside the employer to those who can “motivate” them to act more fairly than they commonly do.
Example: While current employees may see it as deleterious to their hopes of remaining in their job, or being promoted in their job, reporting workplace unfairness or abuse – from nonpayment of wages to illegal discrimination – to regulators and governmental rights agencies can provide remedy and relief, and due to the prohibition on retaliation, can actually ensure future job retention.
Example: I have contacted large Private Equity companies who hold investments in portfolio companies to advise them that their investments are engaging in activities such as not paying wages, permitting fraud, allowing discrimination, or even preventing parents from working by non-compete agreements. Their fear of exposure – and loss of future investors in this way – has brought about certain and prompt “relief” for my clients.
Example: When dealing with financial institutions, it does not take long, after raising the notion with Board Members that “This sure sounds like Wells Fargo,” or even “Enron,” that matters take a friendlier, and more understanding tone, at least on the surface. The same thing happens when I mention to institutional investors that “I think this may be your “’United Airlines Moment.’”
Example: I have shared with institutional investors and money managers that the managers of their investments are refusing to hire or keep as employees pregnant women, and it does not take long for management to call me and say, in various words, “Can we make a deal?”
Example: As a result of the O’Reilly Debacle, the 21st Century Fox Corporation, parent of Fox News, is under investigation by the U.S. Postal Service for mail fraud, the U.S. Securities and Exchange Commission (“SEC”) for investor fraud, and the United States Attorney for the Southern District of New York for civil fraud for hiding the multiple payoffs to those who stood up and raised concerns.
The O’Reilly Debacle may also be the reason United Kingdom officials delayed approval of 21st Century Fox’s purchase of Sky TV. The very specter of this kind of risk of bad employer conduct is quite, quite considerable to large corporate employers, and this lesson is not being lost on others, either. “Is this going to by your O’Reilly Debacle” may be a wise element of negotiation to other large employers.
“Outside” sources of leverage in “fixing” things at work include investors, regulators, and now, quite clearly, even advertisers. Social media has made the fear of exposure, and very significant accountability great sources of leverage and motivation to employers who would otherwise save money by refusing overtime, make more money by terminating older employees, or simply permit meanness and harassment by their more powerful employees, as Roger Ailes and Bill O’Reilly were at the Fox Network.
- I. The Significant Advantages of such “Alternative Negotiation”
This variety of “alternative negotiation” addresses – but never expressly threatens – the most important asset of any employer: its reputation. “But, Hey . . .” you may say, “isn’t that extortion.” No, I don’t think so. If what you are saying is true, and most importantly you are not expressly threatening to go “public,” which could be deemed extortion, I do not think it is “extortion” or even “defamation” to do so. It may be pressure or a sort, and even “hardball” or “bare-knuckled,” at that, but it is legal, and it is effective.
I often think about the Yiddish saying that “If you don’t want people to know what you are doing . . . just don’t do it.”
By this approach, we act more like business people than like lawyers, in that we understand that lawsuits are not as “motivating” to business people as are their own interests. The “business interests” I refer to all start with the letter “R,” namely (i) Revenue, (ii) Relations, and (iii) Reputation. You will note that it took the Fox Board see risk growing to the revenues, relations and reputation to get up off their seats and do what is right. I do not support the notion of “Let’s tell the world they are thieves.” No, not at all. In fact that may result in allegations of extortion, or even a lawsuit for defamation. Rather, I believe in telling the truth, speaking truth to power, and being very careful about it when you do so. Without trying to support lawyers, I do think it is most carefully done by a lawyer with experience and good judgment.
The ubiquity of social media, viral photos and videos, and the great corporate sensitivity to image, brand and reputation make this kind of negotiation more user-friendly than ever. Public opinion is now viewed as essential asset to protect. CEO’s now lose their jobs after public relations nightmares. Every CEO knows that, and no CEO wants to lose his or her job.
And, too, there is nothing like using institutional power against an institution.
- J. Lawyers, Judges, Law Professors and Other Legal Professionals Will Likely Scoff
It is my expectation, borne of my experience, that most lawyers, judges, law school professors and other legal professionals will scoff at what I write here. It is simply outside of their experience – and, not coincidentally outside of their interests, too – to discuss taking care of law clients in this way.
Why? It seems to me this is analogous to why most physicians do not “prescribe” or even suggest ginger for nausea, cherries for gout pain, or cinnamon for diabetes, even though such “prescriptions” have been proven centuries ago to be advantageous to health. Such “medicines” are not in the Physicians’ Desk Reference (“PDR”), and they would face the possibility of being sued for malpractice by lawyers who would pounce on them as “quacks.” No, these methods are not taught in medical school, outside of their experience, and not in their interests.
No, such imaginative and daring uses of leverage in workplace negotiating, as possible alternatives to the far more common “Sue tomorrow if you have a legal claim” mentality that is endemic in the legal profession.
- K. No, I don’t suggest overt threats of extortion, but instead careful use of creative steps that keep employers’ various interests in mind
Please don’t finish reading this article and say to yourself, “Al Sklover thinks I should threaten my boss that I will contact the newspapers and ruin her life.” No, I do not mean that at all. What I do mean is that workplace negotiation has to take into consideration a wider number of paths to relief and remedy than a binary choice between submitting to abuse or suing for it. Instead, a wider variety of “leverage points” is available in this context, and needs to be considered, however “outside the box” it may seem.
In Summary . . .
The true takeaway lesson of the O’Reilly Debacle: when advocating for yourself (or another employee), whether as an employee or former employee, in matters of abuse or mistreatment at work is that regulators, investors, advertisers, media, governmental watchdogs and others may each play some kind of role in achieving relief and remedy.
At the very least, from the applicable facts, events and circumstances, each should be considered among your various paths to resolution when the going gets rough – even very rough – in the workplace. Look what advertisers – who feared damage by association to their own brands and reputation – did for women at Fox TV, and far beyond. Look at the U.S. Congress made happen at Wells Fargo.
Care and good judgment must be used, though, in thinking outside the box and going “outside” the usual channels. And, in this endeavor perhaps among all others, choosing experienced, daring and wise Legal Counsel is surely suggested.
As our society has evolved, many of our institutions are proving to be less capable of adapting to new realities unless they have to. Our professions lead the way in that respect. Your thinking, though, must adapt where and when and how needed.
Most importantly, bear in mind the first lesson my mother taught me: “Where there is no accountability, there is no reason to expect responsibility.” And keep mind, too, the first lesson of the O’Reilly Debacle: there is always a path to accountability, if you dare to think and act “outside” the box.
P.S.: For those seeking personal attention, I offer 30-minute, 60-minute, or 120-minute telephone consultations. To obtain your consultation, just [click here.] If needed, evenings and weekends can usually be accommodated.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation 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 – traps and pitfalls, included – and to avoid the likely bumps in the road. One of those risks is not thinking “out of the box” and using all available leverage when negotiating to gain relief or remedy for workplace abuse, an increasingly necessary element of wise job and career “navigation and negotiation.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
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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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