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“We Have Nothing To Fear But Fear Itself”: A Few Thoughts About Executive Employment In A Time Of Pandemic

Most importantly, I hope that you and your families and friends are well and staying healthy in these challenging times. Our hearts go out to those who have lost loved ones.

Our executive employment law practice is fully functional, with the four of us all working remotely. Executives in the sectors we serve — academic, finance, media and industry — are still being hired and fired, and we are available to help them with their employment agreements on the way into or out of executive positions, or even while simply navigating the rough seas which seem to surround all employment responsibilities these days.

There is no doubt, however, that folks are frightened, primarily because of the massive amount of uncertainty that the health crisis has engendered and transferred to the economy as well as individuals. Will things get worse? How long will the quarantines last? Am I personally at risk? Will my family be OK? When, if ever, will things return to normal? And a hundred more such questions.

I don’t need to tell you that what we really fear is the uncertainty itself, the state of “not knowing.”

So rather than give you another analysis of all the recent tax and stimulus legislation (which can be found on the website and blogs of virtually every big law and accounting firm), it may be helpful to re-visit some of the bedrock principles of our executive employment practice. These basic tenets are applicable whether you are employed by a university or college, a financial services firm, an entertainment conglomerate, or any other employer in the U.S. who provides goods and services.

1.  It’s Your Contract.

Executives should be familiar with the terms of their own employment. This sounds elementary, but executives are often so engrossed in their job responsibilities that it is easy for them to forget the details of their own employment situation. This is a good time to pull out your employment agreement and any amendments and refresh yourself on the particulars, even if you only have an offer letter (which is still an agreement, although, if not properly negotiated, may not be very protective of the executive). It is also a good time to refresh your understanding of the employee handbook and any other documents concerning the benefits, options, retirement, pensions and/or restrictions applicable to executives, as well as any other document related to your unique employment situation.

Being familiar with your rights (and even their limitations) as an executive will enable you to think clearly about your situation in the miasma of uncertainty swirling around the employer’s business, particularly while you are spending your work time engaged in making crucial decisions in furtherance of that business. It also will save you time and money when it becomes necessary to seek legal counsel regarding your employment status, since you can then educate us about that status far more efficiently. Smart executives are always on top of the details of their own employment rights (e.g., severance, benefits, retirement options) as well as any contractual restrictions, such as non-competition and confidentiality clauses to which they are bound.

2.   Don’t Resign!

I have been singing this particular song for so long that some of my readers are no doubt tired of it (see “Don’t Resign!” on our website, in the blog section). Nonetheless, it is worth an encore in these troubling times. Indeed, in the past few weeks we have been consulted both by executives who heeded this fundamental advice and those who quit their jobs before consulting us. I would only say that our ability to be helpful and to find a creative solution to the problem at hand is decidedly strengthened when you are still employed and have left open all of your options.

3.   Transitions Particularly Require Careful Analysis.

We are frequently consulted by executives who are voluntarily leaving one employment situation on their own to accept another position. In normal times, and particularly when both the current and prospective employers are large, financially stable institutions, the process (and our resulting legal counsel) is straightforward, requiring only a review of the particular facts and the controlling documents.

In times of great uncertainty it becomes even more necessary to make a careful examination of the risks involved in such a transition. Sometimes we are able to counsel a course of action which allows the executive the ability to have his or her cake and eat it as well. And even if such a solution is not possible, the executive who takes counsel about an important career move in chaotic times is far more likely to avoid “sorrow tomorrow.”

4.   Don’t Be “Penny Wise and Pound Foolish.”

The older I get, the more I appreciate the proverbial wisdom which was the staple currency of my parents and grandparents.

Following the adage above, there is nothing so cost-effective as consulting a knowledgeable employment attorney, hopefully before, but at least immediately after a problem develops, a challenge presents itself, or an employment opportunity appears on the horizon.

The earlier we are engaged on an executive’s behalf, the more we can help and the more cost-effective we can be.

People are notoriously fearful of lawyers and legal costs, but, here too, I maintain that fear is based on uncertainty which good lawyers can minimize or dispel. Most executives consult an employment attorney only a finite number of times in a career, in contrast with medical professionals whom we routinely consult at least once a year and often even more frequently, so I find it perplexing when executives with substantial amounts at stake in their employment agreements, as well as the potential ramifications which their decisions about those agreements have on their on-going careers, often seem to be more worried about legal fees — usually amounting to a fraction of what is at risk — than they are about their problems with the agreement itself.

We view the goal of our executive employment law practice as either to make money for our clients or to protect them so as to save them money. We also understand that clients want us to do only what is necessary, and, thankfully, we have no need to create make-work hours. By regular billing and close contact with our clients, we strive to have our executives feel that they understand and can control the legal assignments they give us.

The bottom line is that it is always less expensive to address the legal aspects of an employment issue promptly, if possible even before it arises, and the legal fees involved will almost certainly be far less than if the problem goes unattended.

I have been attempting to dispel the general gloom of the last few weeks by resorting to various collections of light verse, from which I offer you the following:

“On the Vanity of Earthly Greatness” by Arthur Guiterman (1871-1943):

The tusks that clashed in mighty brawls
Of mastodons, are billiard balls.

The sword of Charlemagne the Just
Is ferric oxide, known as rust.

The grizzly bear whose potent hug
Was feared by all, is now a rug.

Great Caesar’s bust is on my shelf,
And I don’t feel so well myself.

None of us feels so well these days, but, as Spring comes, we will all get through this difficult time together. Don’t hesitate to reach out to us with any questions and concerns you may have.

Warm regards,

George Birnbaum

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.