Troutman Pepper Partners Tracey Diamond, Evan Gibbs, and Abbey Hazlett delve into the challenging decisions employers face when agents come knocking, seeking information about purported criminal activity by the company or an employee.
Explore the complex intersection of agency inquiries and workplace confidentiality in this episode of the Hiring to Firing Podcast. Troutman Pepper Partners Tracey Diamond and Evan Gibbs join Partner Abbey Hazlett to delve into the challenging decisions employers face when agents come knocking, seeking information about purported criminal activity by the company or an employee.
The discussion is sparked by the popular TV series Real Housewives of Salt Lake City, and the real-life implications when an employee is arrested and implicated in a criminal scheme. How should the company respond when an agent shows up at the reception desk? What confidentiality issues are at play? What documentation should an employer request from law enforcement agencies?
This episode provides insights for companies navigating these complex scenarios. Don't miss out - subscribe to the Hiring to Firing Podcast and stay abreast of all matters related to the ever-evolving world of employment law.
Hiring to Firing Podcast — Navigating Workplace Confidentiality and Compliance When Government Agents Come Calling
Hosts: Tracey Diamond and Evan Gibbs
Guest: Abbey Hazlett
Tracey Diamond:
Hello, and welcome to Hiring to Firing, the Podcast. I'm Tracey Diamond, and I'm here with my partner and co-host, Evan Gibbs. We are both labor and employment attorneys, and together we handle all workplace issues from hiring to firing. Today, we venture for the first time into the world of reality TV, we're very excited, with our partner, Abby Hazlett. Abby is a member of the White Collar Criminal Practice Group here at Troutman. And in particular, we're going today to talk about the nail-biting episode in season two of Real Housewives of Salt Lake City, and the infamous on-camera arrest of Jen Shah. But before we get to that tantalizing subject, Abby, why don't you tell us a bit about your practice, which is quite fascinating, in and of itself.
Abby Hazlett:
Hi, Tracey and Evan, thanks so much for having me on and for letting me drag you into the Housewives universe, which is one of the things that I love to do outside of the office, is watch the Real Housewives of every city, but especially Salt Lake.
Tracey Diamond:
So you're a TV aficionado, just like I am? Our dirty little secret.
Abby Hazlett:
I know. People sometimes describe it as a guilty pleasure, but I don't feel that way. We have serious jobs, and so you have to have shows that are silly, and funny, and entertaining in your spare time.
Tracey Diamond:
Absolutely.
Abby Hazlett:
I am in our white collar and government investigations practice in our Philadelphia office. We have a really great practice group, and we're lucky enough to work with you guys a lot, which we'll talk about a little bit more today. Our practice is focused on representing companies mostly, when they have an internal concern and have to do an investigation, or the federal government is coming and asking questions of them, or God forbid, executing a search warrant. And that's the bulk of our practice. We also do represent individuals here and there. Oftentimes, those individuals are employees of companies that are being investigated. And so we have a real kind of great mix of individual representations and corporate representations.
Tracey Diamond:
I know from working with you, Abby, and you're right, our groups do work very closely, if I wasn't a labor and employment lawyer, I would love to be a white collar lawyer because the work is just so interesting and so cutting edge. And the fact patterns, you can't beat it. When you think you've heard it all, you hear something else.
Abby Hazlett:
Yeah, you definitely never see the same thing twice. I am endlessly fascinated by why people make the decisions that they do. I've had clients who have made bad choices and are still very good people, and that part of the practice is always really interesting to me.
Tracey Diamond:
I think Evan and I can both relate to the why do people do the things that they do aspect of the work, for sure. So Abby, before we launch into our first clip, which is a teaser of the infamous arrest, can you set the stage for us a little bit, since you are the Real Housewives guru here? Tell us a little bit about Real Housewives of Salt Lake City.
Abby Hazlett:
Yes, of course. So Real Housewives of Salt Lake City is a relatively new franchise in the Bravo Universe. It follows a group of women, none are actually housewives, I think, and they all live and work around Salt Lake City, Utah. It's a really interesting show, because there's a lot of interesting angles about the Mormon church and other things that are a little bit new and different from some of the other cities.
The show really started to center around Jen Shah, who is now serving, I think, just about six and a half years in federal prison for a massive fraud that she pled guilty to in the Southern District of New York. She essentially was engaged in a telemarketing fraud that was taking advantage of vulnerable people, elderly, disabled, people who didn't have a ton of resources to give away in the first place. And so, Salt Lake City, which she was a character on for a very long time, turned in later seasons, to focusing on her arrest, her trial, and then ultimately, her decision to take a plea and go to jail.
Tracey Diamond:
Okay, let's listen to our first clip.
Man:
You, guys. There's police and they have handcuffs out.
Officer 1:
Homeland Security.
Officer 2:
We're looking for Jen Shah.
Woman 1:
She just left.
Woman 3:
Look at police here. What did you do?
Tracey Diamond:
This clip gives us a great jumping off point to discuss what companies can and should do when the FBI or some other police agency shows up on their doorstep demanding information about an employee. Are there confidentiality concerns? Is there any particular documentation that an employer should ask for when those types of agencies come calling?
Abby Hazlett:
Yeah, this is every company's worst case scenario, federal agents showing up and you have no idea what's going on. And what we advise our clients is that the best way to prepare for this is to have a plan of action, so that people know what to do. Because often, whether law enforcement's coming looking for an individual or they're coming because they're investigating the company, is that first person they sometimes encounter is a receptionist at the front desk.
We've seen this with clients before, and it is very, very frightening for that person. And people kind of lose sight of what they should and shouldn't do and should and shouldn't say. So having a plan, I think, is really important. And any interactions with law enforcement are risky, and what you're really trying to do is mitigate the risk. So you want your employees to know their rights.
Everybody who's ever watched Law and Order knows this. So you have a right to remain silent. You have a right to a lawyer. The police cannot search and take property if they don't have a warrant to do so. People need to know their rights, and you want to have that plan in place, so that the first person law enforcement encounters knows who to call. Oftentimes, that's the in-house lawyer or whatever senior manager is there. And you really want to have that specific point person who knows what next steps to do.
And so, what are those next steps? You want to ask law enforcement officers if they have any documentation. Do they have a subpoena? Do they have a search warrant? What are they there for? And then, if they don't have that sort of documentation, if it's just an inquiry at that point, you want to get business cards and you want to keep asking those questions. And one of the things I always say to our junior attorneys at the firm, and I think this is very true in this context too, you want to be politely persistent.
Don't let them push you around. You want to be asking all of those questions. "Why are you here? What's your documentation? Do you have a business card?" So you have a better sense of what they're doing, because that allows you to understand what the ultimate risk is. Is it a risk to an individual? Is it a risk to the company?
Tracey Diamond:
What you just said about not being pushed around? I think that's where I get a little bit confused myself of, how much should you be cooperating versus pushing back? And where do you draw that line between cooperation and pushing back? Or should you just be cooperating? Or should you just be pushing back?
Abby Hazlett:
Yeah, cooperating is kind of a big loose term, right? There's capital C cooperating, which is opening the doors and saying, "Here's all our stuff," and then, there's little C cooperating. You do not want to be accused of, for example, obstructing justice. On the other hand, you do not want to say something to law enforcement that is not true, because then you're sort of binding yourself into, you've lied to a police officer. So you want to be very careful in those interactions. And I think what you can say is, "Do you have documentation? What are you here for? Can I see that documentation?" If they don't have a search warrant, if they don't have a subpoena, then the line that we tell people is, "Thank you for stopping by. Can I have your business card? I'm going to contact my lawyer, and he or she will be in touch." That should suffice.
Evan Gibbs:
How often do you get advanced notice that the feds or maybe even local or state law enforcement's coming to a business?
Abby Hazlett:
That is really a situation where it depends on the nature of the government investigation. So going back to this episode of Real Housewives, they had no notice. Everybody was surprised. And you see that in the episode. Everyone's saying, "Who is that? Wait, they have badges. Is this a prank?" All of those questions. Typically, if you know, as a company, that an investigation is taking place, the agents aren't just going to show up out of the blue, if you already know.
But oftentimes, our clients call us, because their employees have gotten knocks at the door. And the FBI loves to show up when people are having their morning coffee. The FBI goes out, they try to talk to an employee or two, and then, that's how the company learns that they're under investigation themselves.
Tracey Diamond:
Before we go any further, let's play the longer clip, that shows the FBI coming calling, and I believe the housewives were in a bus. They were about to go on a weekend trip when the FBI show up outside the bus. So let's take a listen.
Women:
I don't know why the Popo are here. Why are the police here? NYPD? Wow. They have SWAT team and stuff. What the heck? Is this a prank? Wait, what the (bleep) is going on?
Officer:
When did she leave?
Women:
No, I'm freaking out.
Officer:
She's with her husband, you said?
Women:
Wait, Jen? If they were asking about Jen, this is not good. Is Jen playing a prank on us though? Wait, hold on. What does HSI stand for?
Officer:
We need to speak to her. That's all.
Women:
Do you see any guns on him? Are you serious?
Officer:
Do you know that she's okay? Did she leave?
Women:
She left here. She's on the phone and she left here. She got in the car and took her bag and she said that her husband had internal bleeding and she was headed straight to the hospital. She didn't want us to stay with her. Something's weird. She asked me to turn off her mic.
Officer:
Thank you for your help. We just want to make sure she's okay, that’s all.
Tracey Diamond:
Abby, you said something earlier about how really important that you tell the truth, but what struck me with this, one of the many things that struck me about this clip is that the FBI seemed to be saying over and over again, I guess it was Department of Homeland Security kept saying over and over again, "We just want to make sure she's all right." Which didn't seem very truthful to me. Do they have to tell the truth or can they say whatever they want?
Abby Hazlett:
So they don't need to tell the truth. Right? But that is a one-way street.
Tracey Diamond:
That's crazy.
Abby Hazlett:
It is crazy. It is really crazy. And a lot of people think that the agents are always going to be truthful and forthcoming and say what they're there for. I have heard from many clients that agents show up and they say, "We just want to talk. Nobody's in trouble here. We just want to talk." The FBI doesn't just want to have coffee with anybody. That is just not what happens.
And so if agents are showing up at your offices, somebody is getting investigated for something, right? That does not happen out of the blue. And in this episode over time, Jen Shah receives a phone call, she leaves the area, she's arrested on a highway simultaneously basically, there's a search warrant being executed at her home. These are very well coordinated and planned out. And so having the agents say, we just want to make sure she's okay was not true, and that's okay for them to say.
Evan Gibbs:
I'm curious, when agents come to a business and let's say for example, they want to come inside and look around or something like that, who can speak or I guess give permission on behalf of a company? You mentioned that a lot of times their first contact is going to be a receptionist.
Abby Hazlett:
Yeah.
Evan Gibbs:
So if they come in and say, "Hey, we want to look around, we know employee X works here, we want to go to their workstation and look around." Does it have to be somebody with managerial authority that permits them to do that? Or can the receptionist just say, "Oh yeah, sure, let me open the door and badge you in. Here you go."
Abby Hazlett:
The receptionist shouldn't, right? And this is why you need to have a plan in place. And that role is important in situations like these. It's important for companies that are in highly regulated industries too, which is a lot of where our clients come from. I do a lot of work for pharmaceutical companies. They are not immune to agents showing up at their offices.
Tracey Diamond:
Financial services companies.
Abby Hazlett:
I had one client, they had, I think it was like an 8:30 AM raid. They're a manufacturing company and agents came in. That is where you want to have a designated senior person. If it's corporate headquarters, there's an in-house person that's your right person. If it is a manufacturing facility, the manager who is on duty that day, that is your right person and they are there to ask the questions that we talked about before. Do you have a subpoena? Do you have a search warrant? Can I have your business card? What are you doing here? If they don't have a subpoena and they don't have a search warrant, you can turn them away. But if there are a number of agents, they're probably going to show up with that documentation.
Tracey Diamond:
So let's say they don't have the search warrant, is it going to be perceived as not cooperating if you say, go get a search warrant and come back? I had that situation recently for a client and she wasn't sure, is it going to be perceived as obstructing justice that I'm saying I'm not letting you in without a search warrant?
Abby Hazlett:
No, it's not. They don't want it to happen, but it is not out of the ordinary and it is not a reflection on the guilt or innocence of the person. If they say, "Give me your business card, I will have my lawyer contact you." It is your constitutional right to do it. And it is not a reflection on guilt or innocence in any of this.
Tracey Diamond:
To your point about making sure you have a plan, it's really interesting. I bet you if I surveyed my clients, most of them probably have not had this discussion with their front end employees of what do you do if some government agency comes calling? And it's a hard conversation to have with employees. We may someday have the FBI show up at the door, so this is what you do. Do you have thoughts on how best to train employees or have that conversation with employees?
Abby Hazlett:
I think it's important to kind of normalize that this could happen. It could happen for a million different reasons. It could happen because God forbid you have a employee dispute or I have some retail clients who are very mindful of having people come onto property who could be a risk to employees and patrons and all of that could be a reason that you're interacting with law enforcement.
So I think it doesn't have to be big and scary and that generally people like to have a plan. And so part of mitigating the risk here is mitigating the operational risk. No receptionist wants to be hung out to dry dealing with the FBI. They don't want that either. So if you present it as this could happen, we hope it never does, and we just want you to be prepared so you know what your rights are and so you know who to pass the baton to actually deal with this.
Tracey Diamond:
So interesting. Bringing it back to the TV show for a moment, it was clear during this clip that the other housewives were completely confused and alarmed about what was going on in a gossipy sort of way, of course, because after all, they are the real housewives of Salt Lake City. But in the real life, what if anything, should the company say to other employees when there's been an arrest in the workplace?
Abby Hazlett:
It's such a good question and this is where the Housewives did everything wrong. First of all, backing up. If you are committing a fraud, and Jen Shah has now admitted that she did that, don't go on reality TV. Probably not the best venue for you. She's not the first housewife to go to federal prison. I guess she will probably not be the last.
Tracey Diamond:
So let's talk about that just for one second because I find that incredibly fascinating from a human psyche point of view. I don't think you necessarily have the answer to this or any of us do know what went on in Jen Shah's head, but what would possess an individual who knows that they're doing something that could get them into trouble or may even know they're being investigated to go on television?
Abby Hazlett:
I know. It has to be such a toxic mix of narcissism and hubris. You just have to think. You're never going to get caught. And one of the issues that came up in some of the pretrial proceedings was that the prosecutors wanted to use video from the show.
Tracey Diamond:
Well it's evidence, right?
Abby Hazlett:
She was living beyond her means. She was lying with ease. And that is one of the clips from this episode. She gets a phone call, she doesn't say who it is, but she hangs up and she says with a complete straight and earnest face that her husband is in the hospital with internal bleeding, which was definitely not the case. I wouldn't do this under any circumstances, but certainly not if I knew I had a big old fraud going.
Tracey Diamond:
So if you're an employee that's engaging in wrongdoing, moral of the story is keep your nose down, avoid the cameras.
Abby Hazlett:
Yeah. And it does bring us back to sort of that interesting question that we talked about that you guys see in your practice. And I certainly see in mine is good people make wrong choices all of the time. It feels like her behavior was a little bit beyond that, but I've seen so many employees do the wrong thing, make a bad choice, say something that wasn't true to their employer, say something that wasn't true in documents that end up to the SEC.
And the reasons that people do that I think are so complicated, but part of what makes our job interesting and also, especially Tracey, I've worked with you enough to know that having those soft skills as a lawyer, especially anyone who's being able to build rapport with employees to get the truth of what's going on early so you can deal with it's just really, really important.
Tracey Diamond:
Having that open line of communication and having the employees not see the employer as a threat but more as a partner probably would go a long way there. All right. I just want to get back to that question about how do you message to other employees when there's been this sort of big gossipy distraction in the office of someone getting arrested?
Abby Hazlett:
Yeah, and sorry, I took us on a tangent talking about Jen Shah.
Tracey Diamond:
There's so much to talk about here.
Abby Hazlett:
One of the things you see is that they were gossiping. One of the cast members, this is another big no-no, especially because it was on camera, she started calling her lawyers and speculating on the phone about what is happening with her lawyers, which is a huge waiver of attorney-client privilege. Never have a conversation on camera with your lawyer.
That speculation and gossip is the biggest challenge companies face in these situations, and I've seen clients not handle this aspect well. And so again, this comes back to having that plan of that one person who was responsible for managing the situation. You want to be careful in choosing who that person is. In the moment, if you have federal agents who have a search warrant, they're at your offices, they're collecting documents, they're looking through things, the worst thing you can do is have employees huddled in various locations talking about it.
I had a client where a senior executive thought it would be a good idea to take certain employees for long walks during a search warrant. That was not viewed favorably by the government and there was a concern that perhaps that executive was obstructing justice. Don't do that. If there's a search warrant executed at your offices, it might be best to send people home until that process is finished unless the agents need or say that they need everybody there.
And then after that, you want to send a communication plan. And part of it is doing that very early risk assessment of is this about the company or is it about an individual employee? And a clear, simple email to employees I think is important so that they know that somebody is taking care of it. You can say, "We know you saw law enforcement was here today. We've hired outside counsel who is handling this." I think it's always good to reiterate the company's values. Most big companies have mission statements. If you feel like that is the right tone and tenor to say, "We're committed to doing business the right way." You can certainly say that. Say that you'll update employees as appropriate or necessary and then give employees in that communication, someone to go talk to if they have questions or concerns.
Tracey Diamond:
What if an employee says, "The government wants to talk to me, should I talk to them or not?" How should the employer respond to that?
Abby Hazlett:
This happens all of the time. So employers have to strike a balance. You can't tell employees not to talk or not to cooperate with law enforcement. You can tell them however what their constitutional rights are, which is talking to the government at a time and place that they want and with a lawyer. If the government agents want to talk to an employee about something that relates to their employment, we often, if we're representing the company, get them individual counsel, sometimes we can represent them. Sometimes it makes more sense to get them an individual lawyer to represent their interests. I know we like so many other firms who do this type of work, have lawyers who we work with routinely who we're really respected and will be focused on their client's best interests. And so that's typically what we advise clients to say.
Evan Gibbs:
How often do you see the issue come up where there's, let's say there's a search warrant or some kind of subpoena that relates specifically to an individual employee. Let's say the government comes in and they want to, for example, seize that person's corporate laptop that wants a company on device or maybe a company on cell phone or get an image of the company email account or their teams chat, stuff like that. How often does that come up and I guess what's your recommendation on how that should be dealt with?
Abby Hazlett:
It does happen. Oftentimes if agents show up and they're focused on one person, it's typically because of something that's outside the scope of their employment, not always. Right? It kind of gives you an indication of they're like, "I just want Evan's laptop." That kind of tells you they're really focused on Evan as opposed to the whole company. If they show up with signed documentation, subpoena, search warrant, you kind of have little choice but to turn it over.
But what's important is that you get the agent's name and that you're in touch with them. In these situations, I think it's always wise to get outside counsel, to have outside counsel establish communication with that agent, with the assistant US attorney, assuming it's the federal government that's leading the investigation so that you can understand what was taken, understand what's going on with the investigation, and advise the company on best path forward.
Evan Gibbs:
Is there a litigation hold obligation if this happens to an employee at work?
Abby Hazlett:
I think that really depends on what the understanding is of this scope of the investigation. It probably makes sense if agents are coming and they want company devices, then certainly it makes sense to put a hold on everything and take that employee off of the regular retention cycle and put a hold in place.
Tracey Diamond:
What about taking it a step further when the company information may be on an employee's personal device and it's the company that's being investigated, what obligations does the company have to obtain that information off those devices or get the employees to agree to not destroy those devices or information on the devices?
Abby Hazlett:
That personal device piece and the ephemeral communication piece on those personal devices, I think are the trickiest issues for in-house counsel right now. And I think, Tracey, you've done a webinar on this. I've done a podcast on this. The department of justice's view right now is that the line between communications at workplace and communications that are more personal is so blurred that they really view personal devices kind of as akin to corporate devices.
Tracey Diamond:
Of course they do, right?
Abby Hazlett:
Yeah.
Tracey Diamond:
Because they're going to cast the net as wide as possible.
Abby Hazlett:
Of course. And so they want those personal devices that might have work email on it. Maybe your employees are people who use WhatsApp to communicate with each other or there's teams loaded on the phone. It's so thorny. And I think that what DOJ is saying now is that companies need to really look at their overall risk profile. The highly regulated industries, financial services, pharma, those industries versus sort of a lower risk industry and tailor policies on personal devices and communications like WhatsApp, Snapchat to their industry and to how their employees operate and really abide by that. And if you have a policy that gives good clean lines and you're doing monitoring of that, then maybe you can have an argument to be like, there's no work stuff on the personal devices. We have a policy.
That approach I think is going to be very hard to take given what the financial sector has gone through with employees just ignoring all the policies and doing whatever they want on their personal devices.
Tracey Diamond:
It is worth emphasizing that having that policy in place and making sure it's clear, and then training employees on the policy and managing it to the extent you can is super important here. If you're going to have any prayer of not being responsible for everything an employee says or does on their own device.
Abby Hazlett:
Yeah, absolutely. And I certainly don't want to imply employers should throw in the towel. The policies, the training, and I think training once is not enough on this. You need to kind of do it on a regular basis and then figure out a way to monitor it. And that is tricky too because there's, I think a lot of pushback on employers being too big brother. You can see that conversation about return to office and counting swipes. So the monitoring piece of that I think is hard to do in a way that is effective and not, to your point, Tracey, creating an adversarial relationship between in-house counsel and the business.
Tracey Diamond:
I have a question really more for Evan because it's more on the labor employment side than the criminal side, which is what should the employer do if an employee has now been arrested, whether it's inside the office and cause a big scene or whether it's just on their own time, can the employer go ahead and fire the employee?
Evan Gibbs:
I think it's got to be a case by case basis. What are the charges? What exactly is going on? Is it in any way workplace related? Would it in any way impact their ability to do the job, their safety concerns around interacting with customers or interacting with other employees? I don't think there's a blanket answer. I mean, if somebody called me and said, "Hey, Bob, this executive or this person was just arrested, I don't know the charges. What should we do?" I would say, "Well, look, if they've got PTO stored up or whatever, let's put them on a paid administrative leave for the time being until we understand exactly what's going on and then lies with the US attorney's office or whoever's conducted the investigation, see what information we can find out and then make a determination from there."
We're thinking of these sort of nefarious characters and maybe there's an assumption that they're not very good employees, but what if it's like a really high performer? What if it's your CFO, something totally unrelated and there's somebody that's really hard to replace and otherwise they're a great employee? It could really be a sticky situation. So I hesitate to give any kind of, well, this is absolutely what you would always do. I think you really have to think it through and be really deliberate in those situations.
But I can certainly see situations where you find out and it's some serious conduct, even if it's totally unrelated to work, you can absolutely let somebody go. And I think number one, pretty much every state has a right to work state. Pretty much everybody's employment is at will, so you could fire them for conduct that's even unrelated to their job. And if you've got an executive who's got an employment agreement, pretty much every executive agreement I've ever drafted and I've ever seen drafted by others includes a four calls termination that includes some kind of criminal conduct. So you'd have to review those types of provisions really carefully and make sure that you're covered under that provision, understand what the implications might be. There's a lot to think through.
Abby Hazlett:
And I think a couple points, to sort of echo what you're saying, Evan, our judicial system is innocent until proven guilty. That is certainly the case. Megan Ramen, one of my partners in my practice group, and a whole team of Chapman Pepper lawyers represented executives in a criminal price fixing case for, I believe it was boiler chickens, I think. And they had three trials, first two hung jury, third acquittal. These were very senior executives and they took this three times to trial and a jury found them to be innocent in the end. So that is, to your point, Evan, why it's so important to think carefully about this and continually reassess this is not a one-time decision.
Evan Gibbs:
That's an excellent point. From an employment perspective, companies have to, especially in this environment where things get shared on social media so easily and PR can get out of hand so quickly that even if you think, man, this person's got a great defense. I really genuinely think they're innocent. They're in state court, or I guess they have speedy trial and federal court too, they make a speedy trial demand. It's over and done really quick. And even if they're acquitted, maybe there's some bad evidence to come out or maybe it's just such a bad look. The company says, "Look, even if you're innocent, we just can't be associated with someone who's accused of this kind of conduct." And typically just because someone is ultimately acquitted, it's not going to give them, for example, a wrongful discharge type of claim against the company.
Again, you have to be careful, and if it's an executive, you've got to look at that for cause language in the agreement. But typically, and we've seen this, we've seen this so much with the Me Too era starting back in 2017. We've seen this a lot where folks do get terminated when there's just accusations and a lot of times for whatever industry, whatever the optics might be that might make the most sense for the company and the situation.
Tracey Diamond:
Higher risk caution, companies don't make a decision based on someone's arrest record alone because that's not allowed. That's against the law. So if you're going to let someone go and they've been arrested, make sure you document carefully what the reason is. If it's a lower level employee and they're literally in jail, and so they're missing work because of the time they're spending in jail, that might be a grounds for termination just for their failure to you're at work, but it shouldn't be a decision based on the fact that the person has been arrested to Abby's point of you're innocent until proven guilty.
Abby Hazlett:
And Evan's point about the PR angle on here, I think it's so important for in-house counsel to think about too, Jen Shah was different. It was on page six and the New York Times, that's a whole sort of different PR thing. Even if you're getting dragged into the local legal paper, like here in Philly, we have the Legal Intelligencer, that needs to be managed. Depending on the circumstances, we often work with crisis communication firms who are really helpful at guiding companies through those issues and figuring out how to message not only to the press if there are press inquiries, but also to employees because you have to make the assumption, anything you send to the employees is going to get posted on Glassdoor or Twitter, which is now X. It's going to get out. And so a really great crisis management firm is really useful in those situations.
Evan Gibbs:
I totally agree with that. And I don't know, I'm sure you two have both been faced with a situation before, but a lot of times clients will look to us in sort of a crisis management role.
You think, what should I say to the employees and what do we put on social media? What do we do in this and that? And I've learned very quickly where our role as attorneys end and where the role of an experienced crisis management or PR firm picks up. And I think that clients would do really well in these situations just based on my experience to get a crisis management or PR firm involved early. Because stuff can just spiral out of control really quickly. Even if it's only for internal communications.
We've used them for that before too, just helping to message this. When do you have meetings? How do you announce it? What are the talking points? What do you not say? Especially if you've got a larger organization and you've got a lot of eyes listening to what you're going to say, it is absolutely critical to make sure that you get this right. You can't unring the bell once you say the wrong stuff or put the wrong stuff on social media or whatever.
Abby Hazlett:
And I think ideally, you want all three legs to work really well. You want in-house outside counsel and PR crisis management working collaboratively. We write like lawyers. We shouldn't write like lawyers when we're talking to employees,
Tracey Diamond:
But we could keep the privilege attached to communication, so that's important.
Abby Hazlett:
Yeah, keeping the privilege attached to drafting is important, and then making sure that the communications fit the voice and the culture of the company I think is really important for employee communications. You don't want it to feel overly finicky and employees to be like, who is writing this? Right?
It feels fake. It feels insincere, and I think that just creates more operational risk. So having everybody working together and working on a plan. I think when I've been able to do that with clients and they're on board for that approach, it works really, really well at quelling some of the gossip in the swirl.
Tracey Diamond:
We could talk about this all day. There's so many facets to this conversation. It's both super complicated and also super interesting, but I think this is probably a good time for us to break off. I really appreciate everybody listening in. Please don't forget to check out our blog, HiringtoFiring.law. Subscribe to our podcast and hey, go on LinkedIn, tell us what you think about this episode, and whether you want to hear more about Real Housewives and other reality TV. Thanks so much for listening.
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