Business Communications: A Practical Guide for Drafting Effective and Unchallengeable Communications

06-01-2007

Every once in a while, even great communicators need to assess their communication practices. In today’s legal minefield, the last thing any professional wants to do is compromise business ethics, jeopardize confidentiality, or create a legal challenge based on poor business communication. Let’s begin with a scenario to set the stage:

Joe Smith, Chief Human Resource Officer, is sitting in his corner office on Friday afternoon ruminating about his weekend plans. His secretary beeps to say that a registered letter has arrived. Curious, Joe rips open the sealed envelope to discover a demand letter from an attorney threatening to sue the Company for breach of contract, age discrimination, sexual harassment, and retaliation on behalf of Bill E. Nuff, a former Sales and Marketing executive who was counseled out this past year.

Not too surprised, Joe contacts Sally Jones, VP Sales and Marketing and informs Sally of the lawsuit threat. Sally is furious, she took extreme measures to work with Human Resources to counsel Bill out in a way that was “full-proof” and to document all the information pertaining to Bill’s departure. To make matters worse, Sally and Bill used to have a close, friendly, joking relationship. Having started at the company ten years ago, they were peers and together went through both the glory days and economically-challenging times. They were the most senior people on the team and would joke about their age and the “young recruits” they now had to contend with. They also loved to share jokes (sometimes raunchy) which made the day a bit more fun. Because of their travel schedules, much of their communication and “catching up” occurred on-line, through e-mail and their company-issued Blackberry.

Now befuddled, Sally agrees to meet with Joe Monday morning to prepare for the lawsuit. Neither is an attorney, but they know that they need to start collecting “evidence” for their in-house Counsel. Sally spends the weekend going through her previous communications with Bill. By now, most have been deleted and she decides to delete the few remaining ones that people “would not understand” because of their joking relationship. A few others that related to business, she saves and labels as “Confidential.” She also finds the one she regretted where a joke and some personal information was shared with the Sales team distribution list instead of just Bill when she hit “send” too soon before realizing the e-mail was incorrectly addressed.

Joe goes to Human Resources to have Bill’s personnel file pulled. In there he finds that letter that Bill had once given to HR during his counseling where he outlined his belief that he was being pushed out based on his age. Joe also finds the documentation that shows Bill’s sales performance related to the others on the team. He puts it in an envelope labeled “CONFIDENTIAL.”

• Does any of Joe or Sally’s behavior throw up any red flags with respect to corporate communications?
• Will any of these communications be considered evidence if this case goes to litigation?

Seemingly innocent and friendly banter amongst co-workers frequently becomes the evidence in discrimination and harassment suits. E-mails or websites forwarded with potentially offensive material has cost many employees their jobs in today’s market. Companies are imposing low tolerance policies with respect to sending inappropriate business communications.

Planning your business communications and effectively structuring business writings is crucial to overall business success. Rob Sherman, J.D., communication skills expert and author of Sherman’s Executive Communicator states, “use every opportunity to speak as an opportunity to demonstrate your leadership.”¹ Never underestimate your ability to influence others when you communicate. Your leadership skills are under scrutiny each time you communicate. Those who recognize the power of the spoken and written word invariably rise within their chosen profession.²

Part I: Setting the Stage for Effective Communication Practices

Characteristics of Effective Communicators

Should I put it in writing?

Effective communicators often have the judgment and foresight to know when to say it, when to writeboth. Verbal communication followed by written is most effective in situations where immediate action is required, when an important policy change is being made, when a praiseworthy employee or event is identified, or when a company directive is announced. More general information requiring only future action is most effectively communicated in written form. Communication involving employee interactions, business negotiations, or third-party matters are best delivered verbally and then committed to writing so everyone is on the same page. it, and when to do

Is the communication clear?

Effective communicators present information clearly using organization, concise language, and visualization to express the matter. Rules for clear expression include being direct, providing immediate information and feedback, providing a complete and accurate reflection of thoughts, feelings, needs and observations, without vagueness, stating the real purpose, and communicating in a supportive manner, avoiding an immediately defensive reaction.

Is the communication positive?

Further, effective communicators strive for positive communications, not negative, even if angry, frustrated or in disagreement. They use “I” statements in place of accusatory “you” statements and keep their tone and inflection in check, even during times of high stress or duress. Another important characteristic of effective communicators is they know just how much information to disseminate. They recognize when to keep things to themselves, and they appreciate how much information is too much. They dole out information on a need to know basis which means, not gossiping, keeping private information private, carbon copying wisely, and escalating information and communications when necessary.

According to the American Corporate Counsel Association, effective communicators avoid writing “CYA” memos or blaming memos which do nothing to solve a problem proactively. Instead, memorandum which serves to “pass sentences” on the actions of others indicates to outsiders that someone acting on behalf of the company was involved in wrongdoing and is interpreted that the business is then guilty of wrongdoing.³

Who is the audience?

Effective communicators also assess their audience and communicate accordingly. If assessing the audience, consider whether you are communicating with an internal or external group. Would the group know the lingo, acronyms, inside jokes? Or, are you sharing information with an outside group that is best kept internal? Further, the communicator should consider his or her relationship with the audience: formal and distant or close and personal. This can set the conversational tone. Finally, is the audience a group or an individual? We’ve all seen the e-mail intended for an individual that accidentally makes its way to a group mailing list. Not only is this embarrassing to the communicator, but it could be an easy way to fuel a lawsuit if the communication contains privileged information or offensive information.

What is the purpose?

To improve communication, the communicator must also consider the purpose of the communication. Is it intended to: 1) inform – provide new information and educate the recipient; 2) motivate – encourage performance or move people to action; or, 3) negotiate – make an offer or provide a counteroffer in a written agreement? For example, an informational piece should not read like a novel and a negotiation should be clear as to what is being offered or accepted. You must also assess whether your communication passes the “who cares?” test. Why am I communicating, to whom is my communication addressed and why do they care what I am communicating? If you can’t answer those definitively, then question why the communication is occurring. Legal issues stem from not protecting privileged information, divulging confidential information, or not documenting critical information. Carefully consider what the communication is intended to accomplish and act accordingly.

Is the communication attractive to the audience?

In addition, tailor communication based on the preferred method of the audience. For example, if you are wondering why your boss never reads the 40 page briefs that you prepare researching all minutia details and providing significant statistical and quantitative data supporting your findings, it’s because she is a strong intuitive person who prefers to see how people will feel about the idea and prefers to openly discuss ideas than read and respond in writing. Despite your best efforts, your hard work will not satisfy her preferred methods of communication. According to Sandra Krebs Hirsch and Jean M. Kummerow, who authored Introduction to Type in Organizations and adapted work from Isabel Briggs Myers, co-founder to the famed Myers-Briggs Type Inventory, people have preferred methods of communication and interaction in work settings based on their personality type.⁴ Effective communicators are able to determine the communication preferences of their audience and present information in a way that appeals best to the audience, not necessarily the communicator.

Is the communication respectful?

Effective communicators use only nondiscriminatory language and terms that express equality and respect. Ensure communications are free of sexist language and free of bias based on such factors as race, age, ethnicity, religion, sexual orientation, marital status, parental responsibilities, and disability.⁵

Nondiscriminatory language alternatives:

 Examples taken from: Business Writing Tool Kit, SHRM

What form should be used?

Finally, we have so many communication methods that we often question which to use. Why should I take to the time to type and mail a letter when a simple e-mail will suffice? Or why would I send individual letters when I could address a whole group with a form letter and list the promotions as a group?

Communication Methods:

All of these methods can be scrutinized. E-mails are no less “formal” as written communications than a letter, but people often spend less time crafting and considering the implications of a typed e-mail. Poorly worded or unclear memos can confuse the reader and diminish your credibility. Bottom line: think before you act. Know your audience, know your purpose, and assess the risks of having the info in writing and NOT having it in writing. Circulate only as necessary and follow corporate circulation and storage procedures.

Part II: Special Issues with Electronic Communications, Including E-Mail

Contrary to popular belief, E-mail does not disappear, nor do many computer files which have supposedly been "deleted." Employers should be continuously on alert for workplace situations that could abuse or disclose privileged communications and proprietary information. First, be aware of circumstances or situations where employees are using the internet in a way that undermines or violates the business's rights, interests, and practices. For example, using e-mail to disclose the employer's trade secrets or proprietary information, or to engage in inappropriate contacts with competitors or customers. Further, employers should institute strict electronic use policies and ensure that employees do not have an expectation of privacy in business matters or business-provided equipment. Employers should advise employees of the right to search if necessary and recognize that all e-mail communications and internet access is discoverable if related to an investigation or litigation matter.

Moreover, employers must be continuously diligent of the sending or receiving of potentially discriminatory or offensive e-mails or websites. The legal risk associated with the receipt or dissemination of electronic information containing sexual content, racial or religious material, inappropriate jokes or language, or links to inappropriate material is great. Many legal decisions and settlements highlight the risk, both reputational and financial, to organizations that have not acted swiftly in eradicating inappropriate use of electronic equipment by employees. For example, in an age discrimination case, the plaintiff was allowed to bring in evidence of “stray remarks” which turned out to be some of his strongest circumstantial evidence that the company was trying to create a “younger” image and fired him because of his age. The comments were in e-mails and stated during group meetings or functions calling him “old geezer” and “old fart.” Thus, despite the facts presented that the plaintiff was not reporting for work when assigned, lost his license for a drunk driving offense and was not able to travel to his assignments which was considered an essential function of the job, and was reportedly in a bar when he should have been working, he was successful at trial and on appeal. In another example, a subsidiary of a nationally-known corporation faced a gender discrimination case, where the female plaintiffs stated that women were treated less favorably than men and presented evidence of an e-mail that circulated titled “the top 10 reasons beer is better than a woman.” Their argument was that no one in the organization stopped the e-mail and instead it was circulated amongst the workers. It was used as evidence that the company “devalued” women and was admissible to the court.

On the contrary though, e-mail and other computer files do not always have to hinder the organization. Saved e-mails can be utilized as part of a legal defense. For example, attorneys often utilize e-mail messages to insulate the business from liability where it proves that the e-mails were not "unwelcome" for purposes of sexual harassment law, but solicited by the person claiming harassment. In one case, it turned out that nearly all of the e-mails complained about were replies to sexually provocative statements made earlier by the Complainant herself!

Summary: Be an Ace Communicator

• Know your audience
• Disseminate information on a need to know basis
• Choose your communication method wisely
• Protect any communication privilege
• Preserve any work product protection
• Maintain secrecy in company proprietary and confidential information
• Maintain proper document retention practices
• Do not discriminate in communications
• Use clear, concise and open communications
• Pre-empt problems or concerns by seeking counsel or assistance.

Back to Joe and Sally in our opening scenario…Several red flags went up as you consider their actions. Any written or electronic communications will become evidence in a litigation matter, unless protected by Attorney-Client Privilege or as Attorney Work Product (see accompanying article in this Business Communications series: Preserving and Protecting Business Communications: A Practical Guide for Protecting Privilege, Maintaining Confidential Information, and Properly Preserving Communications in the Workplace published in the EmploymentSource Newsletter).

The information discussed by Joe and Sally is not “Confidential” and cannot be protected from disclosure under the legal rules. Further, the lack of discretion in sending, forwarding, and copying potentially offensive information is problematic to their situation. Further, later destroying relevant information could be very troublesome to the situation. Best practice is to act instead of react. Edit all writings for challengeable content and continue to show respect and consideration in all business communications. Protect communications and keep confidential information from straying from the intended recipients. Carefully monitor electronic communications and do not let professionalism slip in casual communications. Drafting and disseminating well-organized, carefully considered communications can go a long way to advancing your career and avoiding legal pitfalls.