Google was once considered an excellent workplace with on-site childcare, foosball tables and climbing walls. But employees reported that the company culture changed—and sudden layoffs and tense environments came with that. Google’s 2023 Q1 round of layoffs occurred mainly over email, as many employees tried to log in for work one morning only to find they couldn’t access the system. While this was technically a legal approach, it felt to many employees that it lacked humanity.
Layoffs have unfortunately only picked up in pace in 2023. Consequently, employment law—and how a company’s GC and in-house legal team put it into practice—has been significantly impacting the day-to-day lives of many workers this year. The best GCs must look beyond the law and place a premium on conducting layoffs with humanity, empathy and kindness.
Whether an organization has 10 or 10,000 employees, they all have the same perspective: work is personal. Most people spend more time at work than with their families or pursuing their hobbies. So, they want to know that their hard work has meaning. And this is why it is critical to avoid treating layoffs like any other business transaction—because there are people on the other end whose lives are seriously impacted.
Considering the human element of employment law results in better legal and worker retention outcomes. Employees who feel valued are less likely to leave the company or generate lawsuits. A company also enjoys a better reputation in the marketplace.
Kind companies are also less likely to go to trial and pay large verdicts. When I was an employment litigator, I advised companies to go into a mediation to resolve an employee dispute with an opening statement that includes the employee’s successes and attributes rather than starting with a blame-the-employee attitude. My experience showed that focusing on the legal defensibility of the claims rather than vilifying the plaintiff often reduced anger and helped move the parties toward a reasonable settlement, resulting in reduced legal expenses to the company and the end of the litigation for both sides.
Creating these cultures must come from leadership, not only from the GC but also from their colleagues in the C-suite.
The GC’s Role in Layoffs
Ideally, the GC should be in partnership with the CHRO or head of people in an organization, and they should take proactive steps to build and foster this relationship. A great way to approach this dual role is to consider the GC role as a culture keeper. When the GC and the CHRO work hand-in-hand, they cannot only minimize risk but also ensure that their company is a stellar and well-regarded organization to work for.
Specifically, GCs can help the CHRO by identifying where employment law compliance supports employees. When leadership is in the habit of asking for input on these matters, review layoff procedures and new policies to be sure they include a human element.
While it is more logistically challenging to lay off hundreds or thousands of employees in a human way, it is not impossible. A decision to put resources into ensuring a human being is there to inform and discuss the layoff with the affected employees can go a long way in mitigating your employees’ pain, which leads to the mitigation of legal risk.
For example, ensuring easy access to references from the company will also provide meaningful support to laid-off employees. Company culture is demonstrated through communication with employees, and the general counsel can significantly impact how a company shows up for its employees in the best of times and worst of times.
Additional human-focused steps the GC can (and should) take include:
Lead with humanity: The GC’s own conduct in the organization when dealing with internal and external clients goes a long way in setting the tone for the company. For example, the GC is often involved in negotiating employment contracts with the highest level executives who join the company and should be attentive to whether the conversations and negotiations they are having with future colleagues reflect well on the company. In this way, the GC controls the first impression that senior executives have of the company.
On the other end of the spectrum, a GC involved in the separation of higher-ranking employees in the company—and how they treat people in connection with the end of their tenure at the organization—is also very important. When the GC ensures that executives are treated well on the way out, the GC is protecting the company from a reputational and a legal liability standpoint. Any time the GC deals with an employee relations issue, it is an opportunity to control the narrative from inside the organization and out.
“Maintaining the highest of standards for the company and for all employees and creating a culture of kindness are not mutually exclusive,” says Kathleen Henry, EVP, GC and CHRO of Eastern Bank. “A GC who is empathetic and kind will necessarily foster a more transparent environment, one where problems and potential issues are communicated to leadership early, which mitigates risk more effectively.”
Reflect and question: The best leaders are always reflecting on how they are doing and whether their actions are aligned with their goals and values. A GC can be transformative in enhancing the humanity of the company’s culture by asking themselves whether their company’s mission and values are clearly reflected in how and what the company does in connection with its employee relations. For example, a company that talks about the importance of empathy and compassion in the workplace should be examining whether these attributes are actually reflected in its policies and actions toward its employees The GC can be instrumental in examining whether the company’s actions comport with its stated priorities and policies by constantly asking questions about whether the way the company treats its employees aligns with the company’s policies.
Kindness in employment suits all companies. Driving employees through fear, intimidation, or indifference proves to be counterproductive. The human approach does not have to be at odds with the legal one—ever. Even when a legal approach demands action that may be unwelcome to the people in an organization, such action can be effectuated in a way that acknowledges and respects its employees as human beings. “All people want to be treated fairly and with dignity—it is how a company handles issues that arise in the workplace that matters most,” says Kim Clarke, who most recently was VP & GC of Radius Health.