NON-CIRCUMVENTION AGREEMENTS

February 24, 2017

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.

SEVERANCE PAYMENT SLIP AND FALL

January 23, 2017

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.

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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.

 

POLITICS AND LINKEDIN

November 9, 2016

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.

MORALS CLAUSE

October 18, 2016

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

September 30, 2016

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.

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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.

NEVER START A JOB BEFORE EMPLOYMENT AGREEMENT IS SIGNED

September 13, 2016

BY G. A. FINCH

Too many times, a situation in which an executive starts a job with an unfinished employment agreement does not turn out well.  Not always the case, but often the case.  An executive does not want to be in the percentage of employees who get terminated without a back-on-the-marketcompleted, signed employment agreement.   The executive’s relying on the employer to do the right thing in terms of what the employee thinks the deal was, is not a good choice.

Obviously an executive has the most negotiating leverage when a company is seeking to hire the executive.  At the start of the relationship, there is good will between the employer and prospective employee and there are high, positive expectations on both sides.happy_lady

An executive is eager to demonstrate trust and enthusiasm by agreeing to start while an agreement is being finalized.  I know of executives who have quit their prior jobs, forsaken substantial benefits, and relocated to distant cities without a signed agreement.  Two scenarios usually are the case.  One scenario is that the executive and the employer are still hashing out contract terms after the executive has started employment.  Another scenario is the executive has started working and has never received a signed agreement – it falls through the cracks so to speak.

There is an old saying that “Familiarity breeds contempt.”  An employer’s shiny new executive now has blemishes and scratches upon closer inspection.  The sense of urgency has dissipated once the employer has gotten its prized employee.  It is human nature to value something less after it has been obtained.

Accordingly, an executive must never start a job without a completely finished, signed agreement in hand.  Moreover, whatever “final” employment agreement is tendered to him, the executive’s attorney must review it one last time to ensure that the final draft reflects the latest iteration of the negotiated contract terms.  Last minute language insertions or failure to include agreed-upon provisions can and do happen, sometimes carelessly and in good faith by the employer and sometimes by design.  An executive’s insistence upon having in hand an executed agreement prior to work commencement is prudent and makes common sense.  In order for the executive to be able to maintain a congenial relationship with his prospective colleagues or bosses, the executive’s attorney should take the responsibility for requiring a signed agreement.legal-document-2

An executive does not want to be in the more difficult position of proving up the terms of an unsigned, draft contract in a court of law than the easier position of proving up a final, signed contract.

 

 

POWER WORD PLAY (A Term, Word, or Concept an Executive Ought to Know): MORAL RIGHTS

May 13, 2016

BY G. A. FINCH

To the uninitiated, the term “moral rights”, would at first blush (pun intended), seem to suggest having something to do with bad character, improper behavior or religious and philosophical subjects.

Actually it has to do with intellectual property rights of an author, artist, or creator beyond mere copyright interests.

Moral Rights is beginning to appear more often in employment agreement provisions pertaining to intellectual property rights.  The employer usually seeks to obtain a waiver of the employee’s moral rights to works subject to copyright which works are made by the employee within the scope of employee’s employment or using employer’s resources or confidential information.

It is a European legal concept and not rooted in American jurisprudence, although similar and analogous concepts have been asserted or litigated in the United States from time to time.  I believe burgeoning multinational corporations and global trade have facilitated the infiltration of moral rights provisions into American legal documents. The American version of moral rights became codified as the Visual Artists Rights Act of 1990 (VARA) pursuant to the mandates of the Berne Convention.

VARA provides that the author of visual art has the right:

 

A) to claim authorship of his work,

B) to prevent the use of his name as author of any visual art that he did not create,

C) to prevent any intentional distortion, mutilation or other modification of his work that would prejudice his honor or reputation,

D) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of the right.

 

Under VARA, only the author of the subject visual art has these rights whether or not the author owns the copyright. VARA does not provide moral rights for authors of literary or musical works.

Black’s Law Dictionary sets out the most succinct global definition of Moral Rights:

“Moral rights include rights of (1) attribution (also termed “paternity”): the right to be given credit and to claim credit for a work, and to deny credit if the work is changed; (2) integrity: the right to ensure that the work is not changed without the artist’s consent; (3) publication: the right not to reveal a work before its creator is satisfied with it; and (4) retraction: the right to renounce a work and withdraw it from sale or display…”  Black’s Law Dictionary, p. 1030 (Eighth Edition, 2004).

 

INTERNAL REVENUE CODE SECTION 409A

May 13, 2016

 

BY G. A. FINCH

If your employment agreement has deferral of compensation provisions, you may very well see a section or paragraph captioned “Internal Revenue Code Section 409A” or simply “409A.”  Its official citation is 26 U.S. Code Section 409A – Inclusion in gross income of deferred compensation under nonqualified deferred compensation plans.

This section is too complex and tedious for most lay person executives to understand and figure out.  Your reading Section 409A of the IRS Code is certainly an instant cure for insomnia.080914_jmanscratchhead_tnb

At the outset, before you execute an employment agreement, your retaining an attorney is necessary to interpret and apply Section 409A to the various scenarios of deferral of compensation to ascertain whether such compensation adheres to Section 409A’s deferrals and distributions timing rules.

Failure to comply with the rules concerning deferred compensation has onerous consequences of 1) inclusion of such deferred compensation as gross income for the subject taxable year, 2) payment of the amount of interest on the underpayments, and 3) a penalty amount equal to 20% of the deferred compensation which is required to be included in gross income.IRS_tnb

Accordingly, employers often have a Section 409A provision in the employment agreement that allows the employer to adjust payments under the agreement to comply with Section 409A and allows the employer to disclaim any liability to the employee.

A typical provision can be lengthy paragraphs and include some language like the following:

 

“Anything in this Agreement to the contrary notwithstanding, the parties intend that   all payments and benefits under this Agreement comply with Section 409A of the Code and the regulations promulgated thereunder and, accordingly, to the maximum extent permitted by law, this Agreement shall be interpreted in a manner in compliance therewith.  To the extent that any provision hereof is modified in order to comply with Section 409A, such modification shall be made in good faith and shall, to the maximum extend reasonably possible, maintain the original intent and economic benefit to you  and the Employer of the applicable provision without violating the provisions of Section 409A.  Notwithstanding the foregoing, the Employer shall not be required to assume any increased economic burden in connection therewith.  Although the Employer intends to administer this Agreement so that it would be exempt or comply with the requirements of Code Section 409A, the Employer does not represent or warrant that this Agreement will be exempt from, or otherwise comply with, Code Section 409A or any other provision of applicable law.  Neither the Employer, its affiliates, nor their respective directors, officers, employees or advisers shall be liable to you (or any other individual claiming a benefit through you) for any tax, interest, or penalties you may owe as a result of compensation paid out pursuant hereto, and the Employer shall have no obligation to indemnify or otherwise protect you from the obligation to pay taxes pursuant to Code Section 409A.”

 

The point of this blog post is that your deferred compensation provisions could trigger 409A tax consequences and your employer, through its employment contract with you, is shifting the risk to you as employee.

I WROTE IT SO WHY CAN’T I USE IT?

April 5, 2016

BY G. A. FINCH

You are leaving your job or you have already left. After you leave, you want to use all of your power point presentations, white papers, newsletter articles, and blog posts that you did for your employer. Not so fast. Are you allowed to do that? Who owns the written work that you produced? Increasingly I am called to advise incoming or departing executives and professionals on how to preserve and protect their intellectual property rights or understand how to avoid violating the intellectual property rights of their former employers. This post focuses on copyrights, not trademarks or patents or trade secrets.

quill_writingYou need to know the copyright laws. You also need to know what confidentiality/intellectual property agreements you may have signed either in an employment agreement or in a separation/severance agreement or both.

The basics for a copyright are:

  • A work must be original
  • A work must be completed and in tangible form like a written article
  • A copyright holder has the right to reproduce, to distribute, to modify the work, and to perform or display it
  • A copyright holder does not have to register his\her\its work to gain copyright protection and does not have to display the copyright symbol

An employee should note well that ordinarily the employee’s work authored within the defined scope of employee’s employment constitutes a work made for hire. Although the employee physically created the work, the employee may not own it, rather the employer does. Most savvy employers will eliminate any legal ambiguity of copyright ownership by having the employee sign intellectual property and invention assignment agreements.

Although they can vary in length from three sentences to two pages, an assignment of intellectual property provision typically looks like the following:

“ASSIGNMENT OF INVENTIONS. I agree that I will promptly make full written          disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company ….”

no_copyrightPrior to commencing employment, an employee would do well to carve out in a written agreement any invention, original works of authorship, etc. to ensure such work product or invention is not assigned or deemed owned by employee’s new employer. Also prior to any departure, the employee should set out in an agreement what works employee created that were not created on the job or are not assigned to the company.

When the employee does not own the written work employee created, the most obvious and practical thing to do is simply ask permission from the previous employer.

Lastly, there is a limited way to use copyrighted material without permission and not infringe. This way is called “fair use.” For example, if you fairly and reasonably use a short quote and credit it for commentary and criticism, news reporting, teaching, research or parody, you are probably okay. The evaluation includes whether your use adversely affects the market for or value of the work. When in doubt, consult an attorney.

POTTY MOUTH IN THE WORKPLACE

August 24, 2015

By G. A. FINCH

Does boorish behavior matter? As part of our daily work routine, we all experience instances where co-workers, bosses, clients, customers, and vendors use profanity, recount indelicate stories, tell off-color jokes, or over share personal information. It seems that decorum and verbal restraint are neither required nor in vogue anymore. Verbal boundaries have all but disappeared.angry-boss-cursing-grimacing-5343683

Does anybody else miss polite conversation in the work world that used to be the norm? I am not a prude and have myself used profanity on occasion in work-related situations. I would like to think that the few times I use profanity, it is to emphasize a point or to provide colorful context to a story or an experience; maybe my perceived degree of use is a distinction without a difference and I am rationalizing my own verbal indiscretions no matter how limited they may be.angry-cursing-phone-concept-20381448
I know that I am turned off by an excessive use of profanity or habitual tellers of dirty or ethnic jokes. I also get uncomfortable when a work-related person over shares personal information or unusual circumstances, when it is clearly not appropriate to the circumstance or the relationship.  The initial entertainment value of an over sharing story begins to lose its appeal pretty quickly, especially from repeat offenders.  What may have seemed funny or salacious can then make us cringe.

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Despite the increasing coarseness of our popular culture, I think there is something to be said for etiquette – it makes people more comfortable and it reduces the likelihood of offending people. I think those executives and professionals who use no or little profanity, who do not over share, and who resist off-color humor do set themselves apart in a positive way. Crude behavior does have consequences.