You’ve heard it before either in the board room, an industry conference or webinar: someone heard from their legal team that they shouldn’t be engaging in some sort of new business activity. The latest version of this has been social media but it has come through the years with various regulatory and technological changes. We heard there were some pretty strong statements made about social media at the SHRM Legislative Conference and this should surprise nobody paying attention. The annual conference SHRM puts on has all of three sessions by my count on social media with only one of those being a progressive use of social media for internal purposes (kudos to Briana Marrah of Parker LePla for that one).
Still, something doesn’t strike me right about blaming the lawyers for this one. It is the easy route. Saying your legal team won’t let you do it is the biggest business cop-out you can give. And honestly, it isn’t an excuse I am willing to accept anymore.
Understanding A Lawyer’s Role
A good lawyer will help you evaluate one thing: the legal risk of a given business action. They can research past case precedents, key decisions and give you the skinny on what has happened in similar situations. They can tell you how you can help yourself setup the best possible legal case for what you want to try to do. This is useful and good.
Now this may be just the lawyers I’ve worked with but I’ve never had a lawyer help me evaluate the business risks associated with a certain decision. So for example, if I’ve had a lawyer look at potentially using Facebook as a recruiting tool, they’ve told me about the risks associated with possible EEO issues but they’ve never told me the risk of having a competitor use Facebook and get higher level talent at a much more reasonable cost.
That’s a serious business risk. One that needs to be weighed against other risks that you’re taking (including the legal ones).
Abdicating The Power Of Decision
So when the lawyer comes back and says that social media is risky to be involved with, business leaders will often abandon their power of discretion and risk evaluation and say it was outlawed by legal. Progressive business people cry foul at the fear mongering lawyers who have set in motion social media bans and have frustrated the lives of many Gen Y employees. Meanwhile, the true danger of such actions are swept under the rug:
Company leadership is often abandoning decision making and are instead adopting the least risky moves suggested by their legal, HR, marketing, accounting and IT teams.
Now all of these departments mean for the best I am sure but business leaders simply aren’t using them correctly. Yes, when you’re accountant says you might have a cash flow problem if you make a business purchase, you should listen. That being said, if it is the right decision to make, you find a way to mortgage some of your future for a chance to make the right decision. When HR says hiring 30 people in two months is going to be next to impossible, you should listen. But if you absolutely need those people, you lean on them and make the impossible happen.
That’s what real leadership is: it is understanding the risks and challenges from different perspectives and pushing forward on the correct broad strategy for your company with those challenges and risks in hand.
A Delay On Killing All Lawyers
When we resort to throwing lawyers under the bus for decisions that company leadership have made, we hold the wrong people responsible for some of the awful business decisions that happen. Of course various teams in your organization are going to tell you about the risks from their interest areas.
Leadership is about defending the lawyers and owning your decisions. It is easy to blame lawyers for a 10 page social media policy but much more difficult to target the people who signed off on the policy at the top (or who earlier abdicated policy generation to their legal team entirely).
What say you?
March 22, 2010 at 3:02 pm
Hey Lance. Hope all is well with you and your wife.
Here’s the deal about the comments made about the “scarey” lawyers at SHRM’s Employment Law & Legislative Conference last week and the social media content: the focus was on employment law. And honestly, is anyone really surprised about the can of legal worms being opened when internal recruiters use FB and LI to source talent? Really? This is a surprise? The focus of these sessions was not on the use of social media for other purposes like employee engagement, branding, customer service, etc. The place for that content is at our other conferences. Having said all that, I think your post is on the money — as usual. Risk mitigation has got to be a core HR competency. And by risk mitigation I don’t mean compliance. You said it well. Thanks.
March 24, 2010 at 9:14 pm
Thanks China. I understand there are risks and that a legal conference would focus on it. But let’s be honest: employment lawyers have been fear-mongering for clients for much longer than social media. If I see another HR webinar or seminar with the term “danger” in it from a law firm, I will just lose it. It kills me that many people just eat this stuff up and don’t question how it fits into their overall business strategy.
March 22, 2010 at 3:15 pm
Lance,
Good discussion. HR people need to begin to understand the tools like FaceBook and Twitter for things beyond recruiting and business purposes. These are social tools no different than exchanging business cards at a SHRM conference. Chances are that most HR people will have conducted or been involved in a harassment investigation in the next 12-18 months (if not already) that involves either sexting, facebook, twitter, or all three. I had two separate investigations just 4 1/2 months ago within days of one another. I was prepared to properly investigate because I had an understanding of the tools, their purposes, the legal pitfalls, and how and why my employees were using them. HR people need to get with the program and learn about these tools and how they are used for more than recruiting and blog promotion.
Jessica
@blogging4jobs
March 24, 2010 at 9:16 pm
It will be interesting to see how HR folks evolve. We seemed to figure out how to do the whole regular networking thing without breaking too many rules. Social media is no different. People have told me some of the oddest things in person that they probably wouldn’t put on their Facebook page. It is up to any good HR pro to be on the up and up with how they handle such information.
March 22, 2010 at 4:42 pm
If you read what I wrote in my post on scary lawyers, I said that they did a competent job of presenting the lawyer point of view, and stuck to the typical pattern of recommending avoidance to mitigate this risk. This is certainly fine from that point of view. I just don’t think it was balanced enough, and didn’t do justice to presenting both sides of the topic, which I think it is important for SHRM to do.
I certainly didn’t advocate that the lawyers shouldn’t be heard, just that it was a biased point of view, and I would like to see SHRM do a better job of discussing this stuff to the large group of people who don’t live inside this echo chamber and rely on trips to SHRM conferences and the like to get some information.
It is ironic that we are having this dialogue when ERE is was being held simultaneously with the SHRM Employment Law & Legislative Conference, and it was a veritable celebration of social media, including all the free streaming video. I know they are different shows, with different target audiences, but…
March 22, 2010 at 4:49 pm
And I agree that it is ultimately a business decision on whether a company should be involved in social media at all – let alone how they utilize it.
I think this is an opportunity for HR to play a strategic role, and SHRM, as well as groups like ERE have a great opportunity to contribute to how that happens.
No need for any lawyer slayings!
March 24, 2010 at 9:17 pm
Yep. And really, I think you understand that Mike but you had the most recent post about that conference that I could reference.
Let the lawyers do their talking, soak it in and then make a decision based on all of your business factors. That’s all I ask.
March 22, 2010 at 5:11 pm
No, actually, Lance, I’ll blame the lawyers.
And the HR people, and the finance people, and the marketing people, and all the other organizational staff (including those damn consultants) that forget their advisory role and start dictating policy.
Business decisions are to be made by business people, with the influence of a small army of advisers.
We all know that… and here’s something else we know: people tend to abdicate responsibility for choice when there is a strong voice to get behind. Advisers who forget or ignore this fact of human nature and allow their voices to become out-sized at decision time have overstepped their bounds.
Do the business people need to grow a backbone? You bet your vertebrae they do.
Do staff players need to take one on the coxis for their role in this clusterfudge? You bet your ass they do, too.
The challenge, of course, is—as a staff member—to build awareness of the other staff perspectives without beginning to ape them. Because when that happens—when HR becomes a mouthpiece for legal, e.g.—that’s when the function loses its own unique voice and becomes a waste of time.
I think this is the point Michael was making: that HR seemed to be aping the attorneys on this issue, rather than making the business case for these new technologies based on an HR-centric POV.
It’s certainly a pattern I’ve seen play out repeatedly…
March 24, 2010 at 9:21 pm
I think we spend a lot of time blaming the lawyers. And every self-interested department. Why does HR get so much heat?
I don’t hear people going after company leadership that often though. People assume legal or HR or one of those people got to them first. But here is my deal:
1. How do I feel about company leadership that is just willing to ape the lawyers or HR people?
2. More seriously, how do I feel about company leadership that can’t see that they have the wrong team advising them (or the wrong expectations)?
I just can’t get over that. I know you’ve probably hit on it before but I just wanted to make this hate-on focused on business leaders and decision makers.
March 23, 2010 at 4:36 am
HR aping the attorneys: I think you have something there, Jason. For me, that phrase captures the frustration the “new HR” has with the old.
I wasn’t at the conference, but it sounds like some balance would have been helpful to the development of our HR profession; for example, showcasing an organization successfully using social media for recruitment and more, along with their attorney to discuss mitigating any risks. Instead, many conference-goers may have left with their anti-SM/traditional HR bias reinforced.
March 24, 2010 at 9:23 pm
Balance is always nice. I’ve always appreciated lawyers that could do that well but there are few that do it at all.
March 23, 2010 at 5:28 am
Actually, I think that there is nothing wrong with blaming the lawyers. In the early 00′s, they made great scapegoats for corporate scandals. If a project needs killing and the projects sponsor can’t seem to realize that, get the lawyers to do it. I’m sure that every good in-house legal team realizes that role.
Until Jason’s demands come true and I am able to execute a 360 slam dunk (both equally probable), blaming the lawyers is a fine route for a fairly savvy person to use to help with their decision making. Use the blame effectively, not out of fear.
March 24, 2010 at 9:22 pm
There is a certain strategic value for letting them (or anyone else for that matter).
I am more concerned about the people that don’t realize that it is only useful for that purpose and actually doesn’t produce better results.
March 23, 2010 at 8:32 am
Some lawyers can actually promote projects and are a fast track tool to getting your project done. Yes, as a lawyer I have quashed a few projects in my day, but had anyone had a solid reason for justifying the pain, I may have let them proceed.
Unfortunately, when you ask me to make a solid stand on policy I often have to leave a trail for the record. That does not mean you abandon your trail as I rarely would ever say a flat out NO, but it does mean you may have to apply less weight and you always have to apply sound judgment. When I say you have to “save money” that does not mean you abandon a 50K project that has an immediate tangible in the pocket return of a 250K – it means plead your case for me to lobby to make sure you get your 50K.
March 23, 2010 at 8:42 am
John, it’s interesting to me that your language makes it seem as though you are the final decision maker on issues that cross your desk… As opposed to someone who has a role to play and voice to add to a larger process.
March 23, 2010 at 8:57 pm
If you’ve even allowed your legal team to waste their time on a 10-page social media policy, you probably don’t get what it’s about and your company is unlikely to get involved in any meaningful way.
Social media is already being used – by customers, competitors, employees. It’s not going away. The train has left the station. Companies have to decide whether the risks are worth the benefits. And whether they have the guts to use something that involves a lot of experimentation.
If you have customers and decide not to use social media effectively, your competitors will probably love it.
March 24, 2010 at 9:25 pm
You’re right.
Although, I’ve seen some gracious recoveries from some wrongheadedness so I wouldn’t count out anyone in that position. I would just say they missed the gun and have some catching up to do.
March 29, 2010 at 5:45 pm
On target. Lawyers will always say no. Strategic HR is more than understanding cash flow and social media is changing the way we work. Risk mitigation is a core competency plus the ability to present the pros and cons to make sound business decisions for our organizations. A little common sense never hurts either.
April 16, 2010 at 1:04 pm
What job seekers really need.
Why is it that the job boards out there have nothing in between the coveted 5 figure positions and Snag-a-job?
People need to find job that they can get by on without having to meet the impossibly high standards being set for the perfect candidate (who surely cannot actually exist).
I am with you on the corporate bla-bla in job descriptions. They are so vague as to be utterly uninformative and leave you with absolutely no idea what kind of work they want you to do.
We need recruiters who will concentrate on placing all that senior talent we read about in articles telling us that corporation America has finally discovered EXPERIENCE.
We need to purge the bait & switch ads from the job boards – posts that look like a job and redirect you to an on-line college or worse to a jobsearch website attempting to get you to register with them for the 20th time.
We need to stop recruiting agencies from masquerading as employers.
We need some of these websites to improve their search capabilities so that if you use “insurance” as a key word, it doesn’t include unrelated jobs that offer medical INSURANCE benefits. The geographical accuracy is woefully poor. Most don’t have a clue what towns and cities are in NORTH JERSEY.
I am working but looking for so long that I am completely disgusted with the technology. It’s gotten so bad that when I am asked for a “keyword”, I put in
INDOORS.