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.

(Hi, everybody. I’m back)

Yes, I said again. Because he did this last time, too. Craig Becker, whose appointment just expired, was a recess appointment as well. Both times, incensed Republicans have unloaded a magazine of PR soundbites about the President circumventing the Constitutional role of the Senate, and creating some kind of rogue bureaucracy that’s equal parts fascist dictatorship and Marxist, wealth-sharing, Soviet state.

Meanwhile, a couple of news stories later, the Indiana Democratic minority is walking out of session again because the Republican majority is insisting on introducing legislation that would make Indiana the 23rd right-to-work state in the nation. That’s right, I said again. Again. Indiana Dems spent several weeks in a motel in Urbana-Champaign to keep the bill off the floor in 2010. Ground the whole legislative session to a halt.

Two labor issues, two stalemates among legislatures. Look, I know the ideology behind organized labor is deeply-rooted and not going anywhere any time soon. But that actually speaks to my point here. These are not new issues. The political lines between unions and company owners were drawn before the ones separating the modern parties. And still, Presidents appointed NRLB members who actually got confirmed, and minorities showed up on the first day of session.

The obvious question is why, all of the sudden, these historical fissures are causing such caustic stalemates. But, to be honest, I don’t really care what the question is. And whether you’re a unionized worker or a business owner, Republican or Democrat, neither do you.

Every day I wake up with items from yesterday’s to-do list. Every day I work too much, fight harder, and every night go to sleep too late with half a to-do list still to be done. We all are. Welcome to The Recovery. And that’s fine. That’s how we do it here in America. We work hard.

What we don’t need – worker and business owner alike – is for the entire legislative session or regulatory schema to get rutted by the pissing contest that has replaced political discourse, wondering if Hot-Button-Issue A is going to kill our company’s profit for the year. And (not to wax too grandiose) I’m not working this hard to live in a country that can’t suck it up and cooperate with people they don’t like. Even if it means taking the uppercut to the chin, voting “no” for the bill or the person you don’t like, and fighting to get a majority the next time around so you can win some fights.

Honestly, for three years now the economy’s been slowly clawing its way out of the toilet, and every economic pundit I’ve heard during that time has said the #1 thing holding us back is fear. Uncertainty. Employers need to know what’s going to happen a year from now to know whether it makes sense to hire someone. Employees can’t spend any money until they know they’re going to have a job in 6 months. We can’t know what the markets will do tomorrow, but we’re supposed to be able to forecast what the political climate will look like a year from now.

I don’t think the whole country is looking for a single answer to the economic problem. What we’d like, if anyone elected to anything is listening, is any movement at all. Just one time, for someone to say “well, they got us this time, we’ll get ‘em next time” and let us move on.

And yet, with approval ratings further down the crapper than their economy, Congresspeople and Senators from every seat on the political seesaw still pull this “I’m-taking-my-ball-and-going-home” garbage. It’s petty and weak. Learn how to lose, folks. The rest of us need to get some work done.

You know, if I’d hired a team that produced results this bad, I’d fire them all and start over. Man, if only I’d hired them. If only…

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.

I am always drawn to stories of how people work. Maybe its a Chicago thing, I don’t know. Well, here in Chicago, the local NPR affiliate has a little mini-show about science called Clever Apes, and the other day, they ran this story that I found fascinating, where the host got to see “how people work with deadly bugs like anthrax, plague, MRSA and others” in a Federally-chartered research laboratory set up after the 2001 Anthrax scare.

The story spends a lot of time discussing the intricacies of donning and doffing workwear and other precautionary measures that the researchers take before and after they handle things like the plague. In one of those bizarre life-twists, another story broke this week that a researcher at the facility’s sister-lab was infected with Bacillus cereus, the same pathogen the researchers are working on in the story. Clever Apes’s host, Gabriel Spitzer, interviewed the lab’s director about the infection.

The two stories paint a fascinating picture of what these scientists go through every day just to get to work. Definitely worth a listen.

Personally, I don’t think I’ll ever say my job’s making me sick ever again.

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’m honored by the selection, particularly to be mentioned next to the blogs that I go to for my L&E news, like the Connecticut Employment Law blog, the Delaware Employment Law blog, the Ohio Employer’s Law blog, Lawffice Space, and WorkMatters.

There are two other blogs that I am astonished are not on the list, both of which are better than this little site, IMHO. So when you’ve exhausted all the news here, and up there, you should check out the Employer Handbook  by Eric Meyer, and the Labor Relations Today by Seth Borden.

Thanks so much for reading Current Employment, and a special thank-you to all those who voted.

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.