Hostess has filed for Chapter 11 for a second time in 10 years. And last month the locally-renowned bakery Rolf’s Patisserie shuttered its doors permanently.

It’s obviously not fair to compare a multinational food product manufacturer with a micro-regional fancy-cake-maker, but I’m going to do it anyway, because it’s an easy way to make a point.

Both of the news stories surrounding these companies center on employment issues. Almost immediately after it filed for bankruptcy, Hostess cited its pension liability and rigid work rules as the principal issue in restructuring the company; it needs to get out of its current collective bargaining agreements and start over, it says. The Teamsters disagreed, of course, but the correlation was there. Even though the unions are going to take it on the chin, the message turned out all collaborative and warm. The company that brought us Twinkies and other delicacies was fighting for its life, and it just needs the union’s help to stay afloat. The union obviously held a press conference of its own, but the tone was already set. Hostess, for PR purposes, at least, was playing nice.

According to the official press release, the NLRB’s reason is that there’s confusion from business owners about which companies are under the Board’s jurisdiction, and they want to spend some time educating the business community about the issue.

Eric Meyer over at the Employer Handbook calls bulls— on the PR explanation for the delay, and I completely agree. Eric notes that the Board made quite a big deal out of the FAQ they released with the final regulations, so there’s not that much educating left to do. Also, figuring out if you’re covered by the NLRB’s jurisdiction is not that hard. Seriously, we do hard things here; this is not one of them….

I think most employer-side attorneys would tell you the real reason for the postponement has something to do with the stream of lawsuits that have been filed challenging not just the poster requirement, but the NLRB’s ability to enact regulations at all.

The new date will pose some logistical problems, though. Many employers buy new laminated breakroom posters around the new year, and the companies that make them have been busy redesigning the 2012 models to fit the NLRB info in. Now that the Board’s regulation is up-in-the-air, poster companies (and the employers that buy those posters) are going to have to decide whether to print them with the info or not.

At any rate, no need to hang the new poster next month like we expected.

No, seriously. That’s what passes as fun for me.

This week, HP disclosed what it’s departing leader, Léo Apotheker, is getting as a reward for killing the company’s market share and stock price over the past 11 months or so. I won’t bore you with the details – that’s what Forbes is for – but here’s a snippet:

• $7.2 million in severance
• $3.56 million in accelerated-vesting stock
• Only 424,000 of the restricted stock units that he was eligible for for, you know, doing a good job (he could’ve gotten over 700,000 shares, if only he’d, you know, done a good job)
• a $2.4 million bonus (?!)
• and relocation expenses back to France or Belgium.

All this is more awesome when you put it in perspective, though. If you remember, before Mr. Apotheker there was Mark Hurd, who also left the company under not-the-best circumstances. And he actually made HP some money.

HP may be wisening up, though. Their incoming CEO, Meg Whitman, is taking a $1.00 salary, with an annual bonus of $2-6 million, depending on how badly she screws things up over there.  And, apparently, Meg’s payout will be considerably less if when they let her go some time in 2012.

In part 2 of this 2-part series, we’re going to talk a little about what a Plain English document is, mostly by talking about what it’s not.

1. “Plain English” Is Not Code for “Short”. Or “Cute”.

What most people think of when I mention “plain English” and “employment document” in the same sentence is the now-famous Nordstrom Employee Handbook, which consisted entirely of a single card handed out to an employee on their first day. The card read:

Welcome to Nordstrom

We’re glad to have you with our Company. Our number one goal is to provide outstanding customer service. Set both your personal and professional goals high. We have great confidence in your ability to achieve them.

Nordstrom Rules: Rule #1: Use best judgment in all situations. There will be no additional rules.

Please feel free to ask your department manager, store manager, or division general manager any question at any time.

That was it. Sounds good, right? Yeeaah, not going to cut it.

The card is great – a little gimmicky maybe – but definitely written in plain English. Still, it’s not what I have in mind when I recommend an employer’s documents be revised. 99% of employers will need all the regular EEO, wage-and-hour and leave policies in place in order to securely protect their businesses.

Nor does writing in plain English mean your handbook has to read or look like the Ropes at Disney’s. While that document is super-fun (albeit very, very outdated), your documents don’t have to be. They do have to be legible to your workforce.

For some reason, everyone seems to think that you either get all the gobbledygook in the standard form versions of employment documents, or you get the Nordstrom treatment. Not true. The concept behind the plain English movement is that the documents out there right now – the ones you are currently using – can keep all the information they currently contain, but be more understandable and more specific at the same time. You don’t have to talk in vague generalities in order to be understood. You just have to use modern words and sentence structure.

2. Plain English is Not An Excuse to Do It Yourself

A lot of employers hear “no legalese” and think

Great! This lawyer is telling me I can write this stuff myself! I just saved myself a ton in legal fees! What an idiot! Haha! Sucker!

Please don’t do this. Number one, it’s mean. Number two, it’s wrong.

On second thought, go for it. Write them all yourself! You can do it! Just remember: we said that Plain English takes all the information in the documents you currently have and makes it easier to understand. So, analyze what it is your agreement or handbook actually guarantees, protects, explains, etc., and rewrite the document clause-by-clause in a way that makes sense. Have at it. Just make sure your language doesn’t water down the original purpose. Oh, and avoid any terms of art that might get you in trouble if the contract has to be interpreted.

And how, exactly, does “Upon termination of this Agreement, pursuant to the terms of section 4(e), neither party shall have any further obligations under this Agreement, except for the obligations which by their terms survive this termination as noted in Section 16 hereof ” sound when you write it in your native tongue? Well, don’t worry about it. Just delete that part, then. And when you get sued and your contract gets thrown out, you can pay me to tell you you’re going to lose your case.

You get that I’m being sarcastic, right? Believe it or not, your policies or contracts are harder to write in conversational language than in legalese. Legalese is easy. Talking is hard. Call a lawyer.

Ok, so if that’s what plainly-written employment documents aren’t, what are they?

3. Plain English Employment Documents Are. . . Whatever You Want Them to Be.

The point I’m trying to make is that writing something in Plain English is the means, not the end. You can have good or bad policies written in either legalese or conversational English. What plain writing opens you up to is thinking about your HR documents as more than just legal cover-your-behind paperwork. These are the papers that will communicate who you are as an organization to your employees. That is not something to take so lightly.

Think about the Disney handbook from the 40′s. Obviously, you don’t want to replicate the actual policies in there, but the way it’s written? Phenomenal. And – like I said before – it’s not because of the novelty. It’s because that style is perfect for Disney. If you’re running a 15-person storefront CPA, you probably won’t have pictures of guys sliding down stairway railings. You may want something more cut-and-dry, like a two-column “If…then” sheet for common problems, or to draft your employee handbook as an FAQ with bullet points. A lot of forward-thinking tech-based companies are creating wiki pages or other intranet sections to store their employment documents as searchable files. The idea is to write in a way that makes it click with your workforce.

If you’re looking for a place to start – sort-of a test balloon to see if this is worth the time and money – I would suggest redoing (or doing-in-the-first-place, as the case may be) your social media policy. More than any other HR policy, the SM guidelines should really bear the stamp of your particular organization. Most employment attorneys will tell you that a good social media document will not only tell the employee what the rules are, but tell them why, and why it matters to both your company and them. That’s a perfect diving board for practicing some plain writing.

But don’t stop there. Look at that handbook, or, if you’re really feeling frisky, your contracts. How can the language in those documents convey the same attitude as your new SM policy?

Oh – I told you I’d reveal what all that ridiculous legalese from the confidentiality agreement in the first post turned into:

NOTHING.

We deleted it – all of it. No recitals at all. No introductory sentence full of fill-in-the-blanks. We replaced the whole first page with a highly personalized “Introduction” that explained why it was vital to the Company to protect its secrets from competitors, and why it was equally vital to the protection of the employee’s new job. By writing it this way, we completely turned the tone of the agreement around; now, instead of having to drop “grounds for termination” on every new hire, the document reads like a collaborative effort to turn the company in the market leader in its industry. All by changing the document into something the employees might actually read before signing.

While he watches waaaaay less television than I did growing up, he does catch an episode of Mickey Mouse Clubhouse most mornings.

It’s nice that he is getting to know the same characters I knew as a kid, but when I finally sat down and watched the show the other day, I noticed an unusual change in the attitude of a couple of the characters. The Clubhouse was visited at separate points in the episode by the old Mickey-and-the-Beanstalk Giant and by Pete, Mickey Mouse’s foil from the old cartoons. Unlike the dastardly or dopey bad guys of my youth, though, the characters were both generally helpful and nice, if unwittingly causing a problem or two.

Things change.

And, just like the differences between the cartoons I grew up with and those my son is watching, Disney offers a great example of how things change in HR, as well. Over labor day, the Walt Disney Family Museum posted a link to “The Ropes at Disney’s” – a superbly-detailed employee handbook for the men and women (but mostly men) at Disney’s animation studio in 1943. It doesn’t take many pages of drawings to realize there’s not going to be any sexual harassment section to this doc.

I can only imagine the current handbook is even more unrecognizable to its predecessor than those bad guys I grew up with are to my boy.

Still, it would be great to see more handbooks as tailored to their audience as Disney’s was back then.

It’s ready for download from the NRLB website.  The Board is giving you the option of downloading one 11 x 17 poster, or two 8.5 x 11′s, if you’re rocking the standard office printer.

The poster doesn’t have to be put up until November 14, so if you want to be stingy, you can wait until then. While there’s certainly no need to spend money on it, I would suggest just printing the thing out and hanging it now, so you don’t forget about it. When you buy next year’s commercial workplace poster, the NLRB language should be included in it.

Or you could just sue the Federal Government. That’s also an option.

I bet you’re going to start using phrases like “party of the first part” and writing in fine print now.

And then they will laugh at you. It happened to me, and I was an English major, so I wrote pretentiously already.

Lawyers complain about the stereotype – that we all just make things more confusing – but we’re not doing much to change this conventional wisdom. Case in point: I just finished revising a client’s documents as part of an HR audit. The company needed a Noncompete/Nondisclosure Agreement, so I opened a Sample Noncompete Agreement to tweak, and read the following:

W I T N E S E T H:

WHEREAS, the Company is principally engaged in the business of making widgets (hereinafter referred to as the “Business”); and

WHEREAS, Employee in his or her capacity as an employee of the Company may acquire extensive knowledge of the operations of the Business and certain confidential and proprietary information relating to the operation of the Business, as well as strong contacts and relationships with the Company’s customers, suppliers, and employees; and

WHEREAS, the Company is unwilling to employ the Employee unless Employee agrees to be bound by the terms of this Agreement; and

WHEREAS, to induce the Company to employ the Employee the Employee desires to execute this Agreement and be bound by the terms hereof.

NOW, THEREFORE, in consideration of the covenants and mutual agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:

1. Recitals.  The recitals set forth above are incorporated herein by this reference.

2. Consideration.  On the date hereof, as consideration for the Employee’s agreement to be bound by the terms of this Agreement, the Company agrees to hire Employee.

And on and on and on it went. As I edited the document, I started to wonder:  why am I not trying to make this more clear?

So I asked some of my non-lawyer friends what they thought of contracts that read like the one above. Not surprisingly, they universally hated them. But my followup question was a lot more interesting: Why, if they all hated contracts like this, did they accept them, sign them, let their lawyers write them in the first place? Why not ask for it in plain English?

To a man, they all said basically the same thing: Legal documents are different. Right? All those redundant phrases and grammatical gymnastics are what protect us from liability, right?

Right?

Well, no. Not right. There are some areas of the law that still require a lot of antiquated English, like Real Estate. And practices may lend themselves to confusion. Like patents. Patents are confusing to, like, 90% of lawyers even.

But in labor and employment law, there is absolutely no reason that a document has to be grammatically confusing. In fact, confusion is the #1 reason that your employment documents should be written in plain English. For some reason, though, most of them read like the last page of an auto loan application.

Why Employment Docs Sound So Dumb

Employers and lay people rightly blame attorneys for the legalese, but every attorney you talk to will have an equally-bad tale about reviewing a set of documents a business owner has pieced together from various free online sample documents, creating a Franken-contract that creates more liability than it eliminates.

There’s a million reasons legalese is tougher to kill than kudzu. After my informal poll, though, I’ve figured out two central problems:

1. Everyone – lawyers and clients and employees alike – expects legal documents to be difficult to read; and
2. Lawyers can’t bill for re-writing something from scratch if they have a version of it on file (so the old language just gets reused).

Neither of these are good enough reasons to keep writing that stuff up there.

Why They Shouldn’t

I’m here to tell you, folks: If you hire a lawyer to write a contract for you, it doesn’t have to sound like that quote above. It can – that language is perfectly legible to attorneys and judges, and it’s just as legal as anything – but I don’t think it should. If you haven’t already, I think it’s time to rewrite your employment documents in Plain English. Here’s why:

1. Everyone Likes It Better.

It sucks to read legalese. Sucks for your employees, too. What you may not know is that it also sucks for lawyers and, more importantly, judges. An actual empirical study proved that 2/3 of judges found plainly-written filings more persuasive than their more traditional counterparts, and that even judges “skim” documents “for their essence” when faced with legalese.

2. Your Employees Will Read It.

When I was clerking in Chancery Court, we handled a lot of noncompete disputes. In every single case, the employee’s attorney argued that the Employee didn’t read the document, or didn’t know what he was signing even if he had read it. In 90% of the cases, this argument failed. But you know what? The employer still had to pay their attorneys to write briefs and appear in court to defend against it. By just eliminating this single argument, you could probably save yourself $1,000 to $2,000 in litigation costs.

And if he decided that an agreement was confusing – to a lay person, not a lawyer – my judge was not above tossing the case on those grounds, alone.

All your documents, from the Handbook to the CEO’s bonus structure, should be tailored to the person who’s name is in ink at the bottom.

3. After They Read It, Your Employees Will Still Like You.

Check out “WHEREAS”-es numbers 3 and 4 up there.

“Company is unwilling to employ the Employee unless…” ?

“to induce the Company to employ the Employee…” ?

“Welcome to the Company! We’ll fire you if you don’t agree to this stuff!” Is that really the image you want to convey on your new hire’s first day at the job? I didn’t think so.

I know that change is hard, and the thought of redesigning all of your employment documents to make them sound more conversational is sort-of scary. But, I promise you, more confusing ≠ more protection. It means less.

I’m In! What Now?

So hopefully I’ve convinced you of the “why” – that reviewing those old employment documents is worth it. In a future post, I’ll go over the “how”. We’ll talk about some common misconceptions about Plain English documents and how to work with your attorney to get usable, solid docs in language that people actually understand. I’ll also show you what that gobbledygook up there became when we were all done with it.

In the meantime, if you have questions about your employment documents, drop me a line.

Earlier this week, the Equal Employment Opportunity Commission announced that it had filed suit against a national employer for disability discrimination. I know, I know. On its own, that doesn’t sound funny at all.

But when the employer is the Scooter Store, that maven of mid-day TV “Medicare-will-pay-for-it” advertising, I’m sorry, that’s frigging hilarious.

After the title, though, the rest of the press release is not as entertaining:

The EEOC’s lawsuit … alleges that The Scooter Store failed to accommodate an employee’s request for a reasonable accommodation for his disability, psoriatic arthritis, after he sustained a knee injury that required a temporary absence from work. The EEOC’s suit states that the employee timely informed the company he was incapacitated until further notice and that he required a leave of absence to seek treatment for his disability. However, The Scooter Store refused his request and instead fired him, purportedly for job abandonment, although he had presented medical documentation.

What it is, of course, is ironic. And not just in the 1990′s pop music way. This is the classical literature, Greek Philosophy sort of irony. A disability store! Discriminating against a disabled person! And they make scooters! And his disability was a knee injury, which would potentially require a scooter!!

ARE YOU GETTING THIS?!  IRONY!

It’s entirely possible that I only think this is funny because I was an English major at Iowa, and had to debate what irony was with a bunch of Writer’s Workshop wannabes but the fact remains. Irony + Employment Law = Funny-to-Tim.

I thought about where I should link to a definition of irony, but they were all so boring. Then I remembered this graphic which explains the debate over the concept better than I’ve ever seen it. (Caution – There’s Cursing and Grown-Up-Style Drawings on this Poster). Here’s an excerpt:

Ed. Note: This week’s gonna be a twofer. That’s right – twice the ridiculousness for you to waste your time on. In return for my generosity, why not saunter your virtual behind over to this Lexis Nexis page announcing candidates for the Top 25 L&E blogs and vote for Current Employment in the comments?

Diversion #5, subpart (a): Blogging is Expensive

The first of our stories was chosen for two reasons:

1. It hits a little close to home for somebody arrogant enough to write their thoughts all over the internets (e.g.,this guy).
2. It gives me an excuse to congratulate my fellow employment law blogger, Phillip Miles of Lawffice Space on the birth of his baby girl!

I just had a kid 6 months ago, and I can tell you the best part about it is all the congratulations that I receive from people that I only know online. The least I can do is pay that forward, right? Plus if you click on the link to Phillip’s blog, you’ll see that, unlike those super-obnoxious bloggers that force this stuff down your throat,  he’s very humble in his announcement. So, for the second time in CE history, I’m pulling out all my web 1.0 training to make this thing pop:

Congratulations, Phillip!

Babies are the best!

Speaking of obnoxious bloggers, somehow in the midst of having a 0.1-month-old, Phillip found the time to dig up this story about a community blogger in Hennepin County, Minnesota who is paying a hefty price for doing the worst thing you can possibly do to another person on the web: tell the truth about them. From the Minneapolis Star Tribune:

Though blogger John (Johnny Northside) Hoff told the truth when he linked ex-community leader Jerry Moore to a high-profile mortgage fraud, the scathing blog post that got Moore fired justifies $60,000 in damages, a Hennepin County jury decided Friday.

What the wha?

Here’s the timeline:

• ex-community guy does bad mortgage thing
• blogger tells people about it (with choice words)
• ex-so-and-so gets fired
• ex-guy sues blogger for tortious interference with his employment contract

Tortious interference, for those of you who have regular lives, means you deliberately got in the way of somebody reaping the benefits of a contract. In other words: your blog post got me fired.

My personal opinion is that this case is bunk, and there’s no way this blogger is going to have to shell over $60k for not lying.Truthful speech has to be pretty bad to lose First Amendment protections. It’s being appealed, and he better frigging win or I will shut down this website faster than you can say “wackiest employment law cases”.

Diversion #5, subpart (b): This “Ugly” Thing Has Legs

So, two weeks ago, my Friday diversion was about a sexual harassment case where the employer argued there could be no harassment, because the Plaintiff was too ugly. Remember? Well, I can only assume that my blog post, and not at all this op-ed in the New York Times, touched a nerve with some bloggers. All week, folks have been discussing whether ugliness should be protected under discrimination laws.

SPOILER ALERT! It shouldn’t.

Just because something is a detriment to financial gain doesn’t mean it’s grounds for discrimination. Besides, most of the stereotypes about ugly people are true. I’m not prejudiced though; a lot of my close friends are super-ugly.

But you should read these stories about why it shouldn’t be protected, because they are fun, and one of them has a clip from Seinfeld.

One more thing:

Lots of changes coming to the land of Tim soon. If you haven’t noticed already, this includes a slow, meandering update of the blog. (I think I’ve settled on these fancy fonts. Let me know what you think.) I was going to add a “beta” to the top logo, but I don’t have that kind of gusto. So I’m throwing this down here where no one will read it, instead.

Stay tuned for changes (blog and non-blog), and critique away if you hate something.

Notably, this particular incident wasn’t a product of the recession or the global economy or anything like that. From the looks of things, it was a simple corporate falling out. These two companies had worked together for decades, and one of them decided it was time to move on. Which is a good reminder to us all: these things happen. Regardless of the market forecast, accounts can be lost, and adjustments have to be made.

My heart goes out to those whose reality has changed. God knows I know what it’s like. My mind, on the other hand – which for better or worse views the world through Labor & Employment-colored glasses – thinks maybe its time we talk about what to do when you’ve got to let a lot of people go.

There’s a lot of ground to cover, so today’s post is going to just go over the basics of what the laws require. Future posts this and next week will discuss more specifics: what goes in the notice(s), exceptions to these requirements, how to calculate when the notice should be given, etc.

The Basics

The federal law governing mass layoffs is called the WARN Act. Before 2008, I’d say 99% of the populace had no idea what the WARN Act was. To say awareness of WARN has grown over the past few years would be an understatement. If you’ve been following the labor news through the recession, you’ll probably remember the Republic Windows sit-down strike from a few years ago. That incident – where a manufacturer here in Chicago shut down overnight after the bank pulled its line of credit – made WARN issues national news.

The WARN Act requires that companies with 100 or more employees provide at least 60 days’ notice of any “mass layoff” or “plant closing”. That means if you are laying off at least 500 people at any one location, or between 50 and 500 people if the layoffs equal at least 1/3 of your workforce at that location, the Feds want to know about it.

There are a million rules governing this basic idea – close geographic locations can be combined, temporary employees or locations don’t count, reductions in hours short of layoffs do count sometimes, the list goes on and on.

Illinois, like most states, has its own WARN law, as well, that extends the notification requirements to companies with fewer employees. The IL WARN Act requires employers with 75 or more employees to provide at least 60 days notice of pending plant closures or mass layoffs. But mass layoffs under IL WARN is half of the federal standard: either 250 employees or 25 or more, if the layoff equals 1/3 of the workforce.

What Happens if I Don’t Give the Notice?

Penalties. Big ones, too.

Failure to provide notice of a mass layoff can result in liability against every effected employee, equal to up to 60-days’ backpay and benefits, as well as fines of up to $500/day. Also, the laws allow employees who win at court to recover their attorney’s fees.

You can make voluntary payments to employees (e.g. – severance packages) to offset these penalties, but neither law recognizes pay in lieu of notice. So you can’t “make your workers whole” outside the rules of the Act, and avoid liability.

The Takeaway

The typical story when it comes to WARN is the big-bad-employer deliberately hiding bad financials and siphoning money away from paying its workers in its final days. I’m not saying this doesn’t happen sometimes, but far more often, it’s employers that mean to do the best they can by their employees, but don’t know how to navigate the law, or don’t even know it applies to them.

The regulations surrounding both state and federal WARN laws are tough to wrap your head around. There’s a lot of “if-then” factors involved here that can get even smaller employers in trouble. While we will get into some of these specifics later, I wanted to keep this post general to support the following suggestion: If you are considering laying off a significant part of your workforce, and you have upwards of 50 people working for you during the year, run the plan by your employment attorney. The smaller you are, the easier (and more cost-effective) it will be to assess any liability, but when you are facing a large-scale RIF, the piece of mind is worth it.