LEADING BY READING

By G. A. Finch

It may sound trite but it is generally true that “leaders are readers.”  That is not to say that an uneducated person cannot be a leader in his or her own way; nevertheless, reading has its advantages. We have read or heard that Bill Gates, Oprah Winfrey, Warren Buffett, Elon Musk, Steve Jobs and Mark Zuckerberg, among many other successful business people, are/were avid readers. Presidents John Adams and Thomas Jefferson read books as far into old age as they physically could and prized their personal libraries. Benjamin Franklin valued books so much that he created the first lending library in America, and we know what a wise and accomplished man he was.

pexels-photo-12064

More recent presidents, like William Jefferson Clinton and Barack Obama, are known to like to pick up a book.  Whatever your politics may be, Clinton and Obama sound erudite, do they not?  Their knowledge enables them to sound more persuasive and sound more credible, does it not?  An effective executive seeks to become well read by reading often and reading a variety of genres.

Comparable to reading, but not as much as a deep-seated learning and not, I believe, as satisfying, would be listening to audio books and podcasts and watching substantive videos.  In reading, you have time to ponder, contemplate, linger over and ultimately process the content.  One’s listening to audio or watching videos constitutes a more passive brain activity than the act of reading.  It is, of course, better than no learning activity.

The most cerebral people I know voraciously read books and periodicals.  They are well versed on many topics and subjects and are able to connect them, contrast them, 12386-an-stack-of-old-books-isolated-on-a-white-background-pvcompare them, analogize them, extrapolate from them and meaningfully unpack them.

The act of reading or listening to books is the intention and commitment to learn new things and to be in a continuously learning mode –   kind of like a continuing liberal arts education.  Especially now, the  intention-and-commitment-to-learn mode has become imperative given that the rate of expansion of knowledge and innovation seems to double whether in hours, weeks, months or years depending on the field.

My base technology knowledge as a 15-year old was rather primitive and quaint compared to my 15-year-old son who knows how to put together a computer from off-the-shelf components and to program a robot.  He reads articles and blogs on the internet and watches YouTube videos when he wants to learn how to do something.  That is useful learning.  However, he and my teenage daughter and most other teenagers I know do not do enough reading of books, let alone wide and deep reading of books.  I fear their writing and critical thinking skills and broad base knowledge could suffer.  My base general knowledge as a teenager was far greater than theirs is.  I attribute this gap to the fact that I had read many more books by their ages.13728-a-smart-girl-with-glasses-holding-a-book-pv

By reading, you learn how to write better by seeing word usage, different vocabulary, grammar, punctuation and syntax and hearing in the mind’s ear the writer’s voice.   As I alluded earlier about being well versed, by reading you also know more about different topics to inform your professional or social conversations with others.  It can make your conversations more interesting.  Moreover, by reading you bring to bear more knowledge to understand and solve problems and ask the right questions in your work whether it be professional or volunteer work.  When you face industry disruption, must be a change agent, or need to reinvent your business or yourself, your store of knowledge from reading will come in handy!

For those for whom reading does not come readily because of lack of habit or interest, or busyness, the trick is to approach it like starting any new program (like physical exercise or learning a new language): begin lightly with 15 minutes a day and incrementally work your way up to a robust hour.  You may just remember or find what you have been missing all these years: the joys of reading.  You will certainly grow smarter.  Oh, and by the way, if you have trouble falling  asleep at night, start reading a book; it is quicker and healthier than a sleeping pill.

 

Copyright © 2017 by G. A. Finch, All rights reserved.

EXECUTIVES’ JOB INTERVIEW READINESS: G. A. FINCH CHATS WITH COMMUNICATIONS COACH CORINNE VARGAS ABOUT INTERVIEWING

Job interviews are so fundamental to professional advancement.  Every executive has had a few times, if not many times, when the executive did not get the offer.  The executive may feel that the executive “blew” the interview.  The executive may be thinking: Was I too nervous?  Was I too rambling in my responses?  Did I not ask the right questions?  Was my body language off putting?  Was my voice too squeaky?

The executive will analyze the perceived failed interview a thousand different ways.  What is more frustrating is that many executives extensively prepare for interviews by researching the company and its people, anticipating kinds of questions, and practicing scripted answers.    They were prepared, or so they thought.

What most executives do not know about or consider is an interview coach.  Even at the pinnacle of their talents, world class athletes hire coaches to improve their “skills.”  Why wouldn’t you get help on how to nail a job interview?

My blog guest, Corinne Vargas, is just such a person who can help you “up your interview game.”  She is the founder of CVC Consulting, a firm that offers, among other services, coaching for professional and business interviews.

FINCH:   Corinne, we know that a successful interview has a huge impact on whether an executive makes it to the next round and hopefully receives a job offer.  Why do you think it does not occur to most executives that it is worth the investment to hire someone to hone their interviewing skills?

VARGAS:  In my experience, the investment is often not the barrier to hiring a coach. Instead, I have found many executives do not consider interview coaching and support for two reasons: 1) they are eager to start the process of finding a new position and feel they want to tackle it as quickly as possible, which often means alone, OR 2) do not know coaching is available for tailored situations. Unfortunately, many clients find coaches after attempting to tackle the process on their own and in various states of rejection, frustration, and desperation.

However, post-coaching, clients often express the lessened anxiety and frustration they felt during the process compared to going it alone. They explain having a coach “on their side” to help them through various steps in the process proved invaluable. Skilled coaches can help clients though different steps or aspects of the process including interview question preparation, nervous and anxious manifestations, content presentation, transition story framing and storytelling in the interview context. Coached clients frequently state feeling more control over the process and a higher level of confidence and preparedness, ultimately bolstering a better representation of personal brand and better outcomes.

Fire someone with witness

My advice to an executive in transition or looking to transition, is that it is worth the time to at least explore a coach as it can save time, frustration, and help you achieve your goals with more confidence, focus, and many times speed. If an executive decides to explore the option, they should look for an interview coach who provides focused, tailored coaching sessions offering perspective and actionable feedback.

Continue reading

NON-CIRCUMVENTION AGREEMENTS

BY G. A. FINCH

 

This post is for those executives and professionals who have left their organizations  for one reason or another and are bursting with great ideas for business opportunities.  We have all heard stories from people who lament that “my business idea was stolen from me” or “this person I trusted cut me out of the very deal that I conceived.” anger-svg-med A well drafted non-circumvention document could have protected them from such shenanigans.    A non-circumvention provision or agreement is designed to prevent a party from taking an opportunity or idea brought to this first party by a second party and then doing an end run around the second party to a third party. football10Typically, the second party expects to engage in or execute some kind of commercial transaction together with the first party in relation to some third party.

The non-circumvention can also be mutual so neither party can go around the other using the information obtained from one another.  The third party could be a prospective seller, customer, client, vendor, supplier, investor, inventor, etc.  As the opportunity or idea is usually considered proprietary and confidential, the non-circumvention agreement is often used in conjunction with a non-disclosure/confidentiality provision.  Sometimes for good measure, companion non-competition, non-solicitation and no-grant-of-license provisions may be added.quiet-1

What does a scenario for non-circumvention look like?  One of my clients was negotiating with an investor to fund an acquisition of unique assets that had tremendous upside value and the client inked an agreement that prevented the investor from directly acquiring the assets from the seller without involvement of my client.  A confidentiality provision was also included in the agreement.

What does a non-circumvention provision look like?  Here are two examples:

  • “Non-circumvention. The Receiving Party and its officers, employees and directors will not make any effort to circumvent terms of this Agreement in an attempt to gain the benefits or considerations granted to it under this Agreement by taking any of the following actions:    The Receiving Party will not in any way use, sell, transfer, develop, market, finance, or invest in directly or indirectly, through its owners, shareholders, directors, advisors, employees, subsidiaries, agents or other parties under its direction or control, any product or  service that contains or uses the Confidential Information.”

 

  • “Non-circumvention. Receiving Party agrees that it shall not, either directly or through any third party, enter into any contract, joint venture, partnership, business arrangement or otherwise conduct any business whatsoever with any person regarding the Transaction without the written consent of Disclosing Party.”

 

The upshot in your business dealings is create trust but construct protection.  content_tn-smiley-face A non-circumvention agreement is a building block of protection.

 

Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.

Copyright © 2017 by G. A. Finch, All rights reserved.

SEVERANCE PAYMENT SLIP AND FALL

BY G. A. FINCH

 

I was fascinated with a 22 December 2016 Crain’s Chicago article “Feud explodes at one of the city’s most connected PR firms” by columnist Greg Hinz.  The story intersected two worlds in which I practice law and work: executive employment and governmental affairs.  Although not personally acquainted with the antagonists, Leslie M. Fox and Guy Chipparoni, from my own circles, I have some familiarity with their respective body of work and reputations.

Let’s set the stage. In September, 2014, Greg Hinz pens a short Crain’s piece , writing “Two of the more colorful figures in Chicago’s world of media and politics are getting hitched – professionally, that is…. Neither Mr. Chipparoni nor Ms. Fox is a shrinking-violet type.  But both are capable of doing first class work.  We’ll see how they do together.” The hint of skepticism of Mr. Hinz was prescient.Boxing_gloves

Fox had helped organize and raise funds for Chicago’s hosting the 1996 Democratic National Convention and 1994 World Cup Games (the latter event yours truly had a bit part at the creation).  Chipparoni had been a flack for Illinois Governor Jim Edgar and founded his own successful public relations firm, Res Publica Group, of which he later asked Fox to become a part.

In December 2016, Fox filed a law suit against Chipparoni personally and his firm alleging that Chipparoni breached an employment agreement by not providing her severance benefits after she invoked a “Good Reason” termination provision  “because during her employment there was a consistent, persistent and continuous diminution of Fox’s contractual duties, responsibilities, powers and authorities which … were to be those customarily associated with the position of Executive Vice-President.”Bossth

Two of the most serious allegations were A) that Chipparoni diminished her ability to prevent Chipparoni from appropriating opportunities and assets belonging to the firm and B) that Chipparoni treated the firm as his alter ego and did not maintain the firm as a separate legal entity.  These allegations lay the foundation for a claim of personal liability of Chipparoni. Ouch!

Fox also has a more common variety breach of employment contract allegation that Chipparoni disparaged her to others.  We do not know from the complaint what alleged disparaging remarks were made.  We can assume that Chipparoni will file an answer to Fox’s complaint denying making disparaging statements or otherwise breaching the contract and file affirmative defenses to her claims.

In my executive employment blog, I have written that employers usually underestimate the destructive power that an angry, committed terminated employee can have on the morale, reputation, and resources of their organizations.  What many employers fail to understand in their not being reasonable in their severance offer is that the terminated, aggrieved employee may present a sympathetic image to a judge or arbitrator or the court of public opinion.  Moreover, the peeved employee may dig up bones of alleged legal and regulatory liability of which the organization’s higher ups may not even be aware.   The organization may have unintentionally birthed a whistle-blower.   A boss may have not ever thought of liability for the firm, let alone, his own personal liability

An employer’s having and abiding by a non-disparagement employment contract provision should be basic practice.  From the employer side, the employer does not want a disgruntled former executive trashing the company thereby diminishing the brand, reputation, and good will of the company.  The executive certainly does not want the executive’s ability to work effectively at the executive’s job to be made more difficult or to find new employment to be precluded by negative comments being made about the executive during the executive’s employment or after the executive’s employment.  In the Res Publica case, Chipparoni’s alleged disparaging comments has produced a claim of breach of contract.  A further take away for employers is that an employer must not say or write anything that injures the reputation of the executive that could form the elements of a defamation claim.

As I have blogged previously, severance payments are pragmatic.  Employers ought to consider providing for severance payment and a neutral letter-of-reference in separation agreements where there is no employee misconduct. These provisions often generate goodwill from a departing employee, thereby reducing lawsuits, and the provisions can be used to bind an employee to confidentiality, non-disparagement, and non-compete obligations as well as release most claims against the employer.  Severance payments demonstrate humaneness and compassion on the part of the employer.

courthouse

Employment lawsuits are expensive and generate bad public relations for a company. As long as the severance compensation is not excessive, it really is a no-brainer in terms of a cost-benefit trade-off for an employer.

Fox wisely obtained an attorney to review and negotiate her employment contract that sets the terms of her separation from Res Publica.  Among other things, it enables her to fire her employer when good reason is shown, namely, the diminishment of her executive responsibilities and receive a severance payment; it provides for non-disparagement of her to protect her reputation; and it sets out clearly the basis of her compensation. It remains to be seen whether she can prove her breach of contract claim, but protracted litigation creates bad optics for Res Publica and Mr. Chipparoni even if they prevail in the lawsuit.  After all, public relations and governmental relations are about achieving positive outcomes or damage control.  Neither positive outcome nor damage control has occurred here.  In my law practice I have seen that this kind of dispute probably will settle  sooner rather than later.

 

Copyright © 2017 by G. A. Finch, All rights reserved.

 

POLITICS AND LINKEDIN

BY G. A. FINCH

In recent weeks I have seen LinkedIn updates and discussions about whether talking politics or curating politically tinged or themed posts and links and other materials is appropriate on LinkedIn.  It is clearly because of the political season and the stridency and controversy surrounding the presidential election that political matters have spilled over into the business social medium of LinkedIn.

We would expect people to discuss political subjects on Twitter, Facebook, Instagram and You Tube.  We would not expect the typical business with a presence on Twitter or Facebook to engage in political discussions.  Businesses exist to make money for their owners and managers and employees, and they do that by attracting customers and clients, not repelling them with unfavorable messaging.  Professionals want to get  hired by a client or recruited by or promoted by an employer and to not turn off the employer or the client.unclesamsmokesandvotes

Growing up as a young adult, I was always told that one should avoid talking about politics or religion if one wanted to steer clear of controversy and keep conversations pleasant.  Although it was a general statement, I knew that this rule was honored in the breach when it came to discussions with family, friends, and neighbors and one’s various clubs and affinity groups.  What was clear was that the prohibition on speaking about politics and religion in polite society especially was to be strictly adhered to in the work place.  This is great advice and a good personal policy to have.

We have seen businesses make policy and business decisions to affirm or condemn certain actions that have a political or ideological cast to them.  These are sometimes viewed as ethical, moral, justice or religious values stances.  Some corporate boards or business owners choose to undertake a risk of adverse impacts on their business in order to do the “right thing” as they see it.

Should one’s LinkedIn page be a forum for one’s political views?  I was an early adopter of LinkedIn.  I use it for my business and professional life and to connect with other business people and professionals.  If someone works or has worked for a political party, a political candidate, or an elected official, then that affiliation is relevant information.  It gives me context and background about that person.  Would I be interested in updates, postings, or articles that are   political?  No.  Would I post or send an update with a political theme?  No.  I do not believe most people join LinkedIn for political content.  They join it to present their credentials to the world and to see other members’ credentials and to make possible connections.

Political content is a divider on LinkedIn, not a connector.   Political statements can easily offend.  One’s displaying political content can cause one to have fewer professional or business opportunities and not even know the opportunities were missed.  Personal political content is more suitable to a blog, a Twitter account,  and a non-business  website and, perhaps, Facebook and Instagram.

 

Copyright © 2016 by G. A. Finch, All rights reserved.

MORALS CLAUSE

BY G. A. FINCH

Getting Booted for Behaving Badly

I grew up in Southern California and it was commonplace to hear about the lives and sometimes scandals of screen stars and entertainers, but I had never heard of “morals clauses.”  My first year contracts course at the University of Michigan Law School did not cover this concept, so I was unfamiliar with this legal terminology. I was a newly minted young lawyer when the term first entered my consciousness in 1984 because the reigning Miss America, Vanessa Williams, became the subject of notoriety arising from Penthouse magazine publishing nude photos of her.retro_pinup_ocal Using a morals clause in its standard agreement with contestants, the Miss America Pageant took her crown away because of these nude photos.  It was a big deal then; it probably would not even raise an eyebrow now.

Although, it is one of my oldest blog posts, I get more hits and reads of my post “TERMINATION FOR CAUSE: MORAL TURPITUDE,” which is a closely related concept used in employment contracts for executives and professionals.  Anything having to do with “morals” is always of interest to people, especially when it affects their compensation.

Protecting Organization’s Brand

Morals clauses are more commonly used with entertainers and athletes.  Companies desire to use celebrities as spokespersons or endorsers of the companies’ products or services – think NBA stars or Olympic Gold Medal athletes on boxes of Wheaties cereal.  Historically these clauses were directed at both criminal actions and socially disapproved behaviors reflecting the mores of the time.

As companies and organizations seek to enhance their brand, reputation, and goodwill, they also want the ability to protect these assets from damages arising from the personal

actions of their monk_buddhistvendors, consultants, spokespersons, partners and employees.

For example, National Football League Pittsburgh Steeler running back Rashard Mendenhall’s Talent Agreement with Hanesbrands, Inc. contained the following morals clause:

“If Mendenhall commits or is arrested for any crime or becomes involved in any situation or occurrence … tending to bring Mendenhall into public disrepute, contempt, scandal, or ridicule, or tending to shock, insult or offend the majority of the consuming public or any protected class or group thereof, then we shall have the right to immediately terminate this Agreement.  HBI’s decision on all matters arising under this Section … shall be conclusive.”

Because of certain tweets by Mr. Mendenhall on Twitter concerning the death of Osama bin Laden, Hanesbrands, Inc. invoked the morals clause and terminated its Talent Agreement with Mendenhall who then filed a breach of contract suit.

monkeys-speak-no-evil-etc

A recent consultant contract with which I was involved had the following clause:

“The Company may terminate this Agreement without notice if Contractor is deemed to have engaged in misconduct, unethical behavior, or actions that disrupt or are inappropriate in the workplace.”

The consultant would not have gotten the contract without agreeing to this clause.

A CEO employment contract had the following for-cause termination language:

“Any actions taken by Employee which in the sole opinion of the Company’s Board of Directors materially adversely affects the business, goodwill or reputation of the Company or its customers.”

The CEO in this instance was able to negotiate away this broad, absolute language.

Personal Behavior and Private Actions

What we see here is conflict between the right to engage in personal behavior and the right of the employer to protect its brand and reputation.

If one is the attorney for the employer, then one would want to expand the scope of these clauses to give the organizational client complete flexibility to control any potential or actual damages to its brand or to control any future direction of the brand.

If one is the attorney for the employee, consultant, or celebrity pitch person/endorser, then one would want to carve out as much right to personal action and privacy as possible and have more specificity of actionable behavior.  The definition and application of morality can be vague, subjective and arbitrary.ten-commandments

Meeting Halfway

If one takes the King Solomon approach, then where there is an instance in which reasonable people could disagree as to the degree or appropriateness of the purported transgression, as determined by an arbitrator or mediator, then some liquidated sum payment to terminate the talent or employment agreement is probably the way to go.

Parties are prudent to spend ample time negotiating and crafting termination provisions as well as the morals clause subsections of those provisions in particular.

COVENANT NOT TO SUE

BY G. A. FINCH

“A covenant not to sue” as the term suggests is a legal promise not to file a lawsuit.  It is usually a companion provision to releases and waivers in a release agreement. Releases and waivers are de rigueur in employment separation/severance agreements.  Lawyers drafting separation/severance agreements favor including a covenant not sue because it can be raised as an affirmative defense in litigation if the party giving the covenant not to sue then decides subsequently to file a lawsuit.

courthouse clipart

As the employer’s attorney is the person that usually does the initial draft of a separation agreement, the covenant not to sue is a provision  that an employee reflexively gives to an employer without much thought and not vice versa.  When I represent the employee, I negotiate for the covenant not to sue be mutual, i.e., what is good for the goose is good for the gander.

canadan goose clipart

If the employer requires peace of mind that the separation agreement will prevent future controversies, so should the employee have the same.

In a separation/severance agreement, a covenant not to sue is subject to certain limitations and exceptions concerning 1) an employee’s ability to file administrative charges with the Equal Opportunity Commission and corresponding state or local agency, 2) an employee’s ability to file a lawsuit to challenge whether the employee signed the agreement knowingly and voluntarily for purposes of the Age Discrimination in Employment Act, 3) an employee’s ability to being a witness in a class action suit against the employer,  or 4)  an employee’s ability  to waive a right which waiver is prohibited by law.

 

Final points:  Although releases and covenants to not sue are usually set out together in a separation/ release agreement, there is a subtle difference between them.  A release gives up or relinquishes a right to enforce a right or a claim that could have been enforced while a covenant not to sue is an agreement not to assert a right to bring a cause of action in court.   Put another way, a release extinguishes a right and a covenant not to sue does not allow a right to proceed to litigation.  A permanent or perpetual covenant not to sue, as opposed to a set time limit not to sue, has the same effect as a release or discharge.

This may be too much information for the typical executive to know or care about.  The important thing to remember is to make reciprocal both releases and covenants not to sue.