The Law at Work, with Alan Crone – Episode 475 of The Action Catalyst Podcast

Employment law attorney, author, and Founder/CEO of the Crone Law Firm, Alan Crone explains how what you do defines who you are, reveals the 3 biggest constants over 30 years of law, as well as the list of things a new or small business absolutely MUST do to stay on the right side of the law, and shares why diversity is death (but not how you think).

About Alan:

Alan G. Crone is an Employment Law Attorney, CEO/Founder of The Crone Law Firm, Author of “The Law at Work: A Legal Playbook For Executives and Professionals”, Ask Alan! Podcast Host and speaker. Crone’s employment law firm team is committed to helping employees, executives, and entrepreneurs resolve workplace disputes, which may include issues between employers and employees, intellectual property disputes and/or other commercial issues. His book reflects Crone’s approach when working with clients, which is, “I’d rather solve your problem than win your lawsuit.” 

Crone’s vast experience includes representing his clients in Federal District Courts and state courts all over the country, being Chief Counsel for the Tennessee Department of Employment Security, and lead counsel in a nationwide class action Fair Labor Standards Act suit, where he successfully represented employees and employers in cases involving Title VII (race, gender, and other discrimination), age discrimination, the Americans with Disabilities Act, non-compete contract, on the job injuries, ERISA, union representation, union organizing, and other employment related issues.

He’s been a speaker at national conventions and regional conferences. 

A fifth generation Memphian, he is a voracious reader and semi-avid golfer. He has been active in local and state politics for decades.  He is the former head of the Shelby County Republican Party and Special Counsel to the Mayor of Memphis.

Alan is also the very proud father of 3 children and is devoted to his wife Allison.

Learn more at CroneLawFirmPLC.com.

The Action Catalyst is presented by the Southwestern Family of Companies. With each episode, the podcast features some of the nation’s top thought leaders and experts, sharing meaningful tips and advice. Learn more at TheActionCatalyst.com, subscribe below or wherever you listen to podcasts, and be sure to leave a rating and review!

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(Transcribed using A.I. / May include errors):

Stephanie Maas
So you’re in Memphis.

Alan Crone
Correct.

Stephanie Maas
I don’t know if you are familiar with this place, but there’s a house there that’s kind of well known. It was a singer back in the 60s, I think…

Alan Crone
Oh yeah. Aretha Franklin’s birthplace.

Stephanie Maas
There you go, yeah, that’s the one. Yeah, neat town you got there.

Alan Crone
Thank you. Next time you come, let me know. I’m a little plugged into this town. I’d be glad to make sure you have a good time.

Stephanie Maas
I will definitely do that. So your background in employment law is super fascinating. What got you on that path? And then talk to me about how, through the years, this has worked your way into inspiration for the book.

Alan Crone
Be glad to. Well, you know, I wish I could say that I had this burning desire to practice employment law even before I went to law school. That’s not true, you know, I went to law school, got out my first job. I was exposed to employment law, went to work at another firm, and then that’s really all I did and really enjoyed it. Your employment relationship is probably one of the top two most important relationships you have in your life. You’ve got your significant other, your spouse, and then the way you make your living. And in America, what you do is a big part of who you are. Very early on, I realized that how incredibly important it is to folks lives, that they have a fair work place and they have a clear path to be able to provide for their families and provide for their own personal self actualization. So it wasn’t hard to kind of fall in love with employment law from that standpoint, at that time, early in my career, I was a politician with a law license. I’m now a recovering politician in not in the mid 90s, I went to work for the governor in Tennessee and was the chief counsel for the Department of Employment Security, and among other things that we did workforce training and unemployment compensation. I did some work for the governor’s office in employment law, and so when I left government service, employment law was kind of hard, baked into my professional DNA, and over the years, I’ve become more and more of an employment law specialist. The book the law at work, people ask me, How long did it take you to write the book, if I’m truthful, 30 years and I wanted to write the book to give non lawyers a playbook on how to deal with some of these employment law issues out there. Because, you know, there’s a lot of misinformation. People think they know what the law is, but, you know, they really don’t. A lot of people just don’t think about it until it’s on top of them. Whether you’re a decision maker at a company or a employee or executive trying to figure out what your rights are. Hopefully it’s a good first place to go to begin to formulate a plan on on what you should do next.

Stephanie Maas
Very neat. I’d be curious with that 30 years plus of experience, how have you seen the environment between employee and employer change?

Alan Crone
Well, I think, I don’t know exactly when it happened, but I think that there’s much more of a even playing field between labor and management now than there used to be, although that’s not saying a whole lot. But you know, with the gig economy and the great resignation and all of those things really has changed the way people approach making a living. I’m not even going to say work, because I think people now make a living and pursue careers, as opposed to, you know, just going to a job. Management can no longer stand at the top of the mountain and just dictate the terms and conditions of employment, you’re seeing a lot more strikes now. I don’t think that that’s a coincidence. Everyone from the writers and actors to the UAW and airline employees are realizing that they’ve got a lot more bargaining position than they used to have, and they’re flexing those muscles because people who are willing to be an employee is a shrinking amount of people. I think it means that companies have to become much more mission driven. They have to hire people that align with that mission. That is really what’s going to get you a good worker is someone who isn’t coming to work just for the paycheck, but is coming to help you achieve a mission that they believe in.

Stephanie Maas
I’m going to go on the flip side of this coin. What have you seen stay the same? What issues are you still dealing with today that you got introduced to 30 years ago?

Alan Crone
People. People are the constant when you’re talking about any organization, but particularly a business, the people and how they relate to one another, is the constant. You know, no matter how much you you train people, no matter how much you have policies and procedures, the human condition is always going to raise its head. But. Positively and negative. I mean, you’re always going to have people that don’t know how to act appropriately. You’re always going to have people that are greedy or that want power or want to manipulate, and you’ve got to deal with that in your organization. You’re always going to have people that don’t know, whether it’s intentionally or unintentionally, don’t know how to navigate the psychosexual relationships between co workers, and you’re going to have harassers and all of those things, people is the constant. And I think that in the early part of my career, management dealt with that by edict my way or the highway, or you’re going to do this or else, and that sort of thing. And that still works to a certain you know, you got to have standards. But I think that dealing with that human element now is dealing with the psychology of leadership and the psychology of followers. Dealing with that is is so much more of a priority now. Whereas, you know, 1020, years ago, managers thought they could just ignore, ignore that and be off their authoritarian about it. So people would be the first constant. And then I think the other, you know, constant is a lack of communication and positive confrontation in the American business place Management students, when they come out, they don’t understand. They they’re not taught how to properly confront and enforce standards, and I think that causes a lot of people to be not very confident in their management style. They don’t know how to to get people on the same page, so they just lay down the law. The other thing that hasn’t changed is how devastating turnover is to an organization. If you’re in an organization and you’re constantly turning over. That’s probably more of an indication about your management than it is about the people that you’re hiring. If someone comes to work for you, I would say, you know, there’s that moment that, that honeymoon moment when you when you offer the job, and the person accepts everybody in that transaction, has hope, and then when that relationship deteriorates, and you have turnover, now you’re back to square one, huge, huge cost to to the organization, both financially and psychically, right? I mean, nobody enjoys getting fired. Nobody enjoys firing people. If you do, then you’re probably psychotic and should be doing something else. And when that happens, that’s a failure of the recruitment process. It’s a failure of management, it’s a failure of the employee. Now, more and more as we as we get into all kinds of different, you know, management tracking and KPIs and all of that, we’re having to figure out how to avoid that from happening, because we can see in real time how much that turnover is costing us.

Stephanie Maas
That is definitely one of my favorite topics. What else would you say are some of the common workplace challenges, especially if you’re a small business owner, or if you’re in a leadership role where you have responsibility and authority? What are some of the other common challenges, workplace issues that we’re facing today?

Alan Crone
The number one is the inability to answer this question? What do I have to do to be successful here? Again, I don’t think we communicate our expectations very well to employees. Every case I’ve ever been involved in, even if there’s intentional discrimination, intentional harassment, there’s always this element of bad communication up and down the chain again, it goes back to Mission. How does this position fit into the mission of my company? What qualifications do I really need this person to have? How do they need to manifest those qualifications on a day to day basis to be successful? I tell people all the time, ask that question in an interview, and if you get a good answer, that’s where you need to work again. I think lack of good confrontation, people don’t want to correct other people. They don’t know how to go about it, and so if you haven’t expressed those those expectations correctly, that’s one reason why people are hesitant to confront because they kind of realize, either consciously or subconsciously, they really have never told this person that whatever the part of this job is is important. I represented a man who was 65 year old, black guy, we’ll call him Jesse. Jesse had worked for this company for 30 years. It was not an upper level position. He was kind of a supervisor, but very important for the company. He was supposed to be at his at the job at eight o’clock, but for 30 years, he got to his job between 815 and 830 mainly because of the public transportation system in Memphis. Well, for years and years and years, nobody said anything to Jesse. He had had a African American supervisor. They all got along. Well, one point he got a new supervisor who happened to be white. This fellow noticed, well, Jesse’s coming into work 15 to 30 minutes late every day. So basically, went up to Jessie’s, look, you’re late. One more time. You’re fired. Sure enough, the next day, he was 15 minutes late and he was fired. And Jesse came to my office and I said. Why did they tell you that you were fired? And he said, Well, it’s because I was late. I said, What was the real What do you think was the real reason you were fired? And he said, Well, the only thing I can think of it is because I’m black. I’ve been late for 30 years, and nobody ever said a thing. Now I get a white supervisor and I’m fired. The facts of that you can argue with, and ultimately, we settled the case. But it was a good illustration of this, this thing, I have a confrontation. I’m not saying that being on time isn’t important, but nobody ever communicated that with Jesse. And rather than sit down and talk to him about it and find out what was going on and maybe how they could, they could change it, the guy just, just fired him. The supervisor thought that he was enforcing a standard, but what ended up happening is they lost an employee with 30 years of institutional knowledge and a lawsuit and a big settlement. Again, going back to expectations, let’s say that you’re going to hire a an accountant, or let’s say you’re going to hire a banker. You say, Okay, I need, I need a commercial banker. You find someone who’s been in the commercial banking industry for 20 years. They got great reviews and you put them in just because they’ve been a successful commercial banker somewhere else doesn’t necessarily mean they’re going to fit into your culture. Doesn’t mean they’re going to have your values, doesn’t mean that they have your priorities, and doesn’t mean that they’re going to do the job exactly the way you want it to be done. The hiring person hasn’t has a vision of what it is to be a commercial banker. The commercial banker has 20 year, maybe experience of what he has been as a commercial banker. And for whatever reason, those don’t, those don’t align. Maybe the decision maker just says, You’ve been a commercial banker for 20 years. Don’t, you know? As opposed to, here’s what, what we really need.

Stephanie Maas
I hear you talk about communication, and one of my favorite sayings is good communication is as much about the communicating as it is the comprehension. You know, you’ve talked about the quality of recruiting, you’ve talked about retention. How does the laws, the employment laws that we have and that we’re working towards, how does that weave in to help with communication and comprehension and retention and recruitment? Pull those together for me.

Alan Crone
What a great question. What a great question. Employment law compliance is not just good legally. It’s good business for precisely the reason that you’re talking talking about. And I think again, it requires some some thought and attention. Well, first of all, the employment laws are not written to make you a better business, to make you more profitable or anything else. The employment laws are written to give protect minimal amount of protection. And when I say minimal, I mean minimal amount of protection to certain workers in certain circumstances. But there’s a way to take those requirements and supercharge them for business. One of the things that overall, that Title Seven of the Civil Rights Act of 1964 brings is this idea that you have to treat everyone the same, that you can’t have discrimination, that you can’t have harassment. You know not harassing your employees is good business again, if you take that, and you take it to heart, and you say, Okay, how can we take this legal requirement and supercharge it and into making our business better? And so one way you can do that is to, you know, take that, those trainings that that right now are kind of pro forma, you know, watching a video of some guy come over and say something inappropriate to some woman. And okay, what should they do now? That sort of thing to go on beyond and talk about awareness of body language and sexual cues and all of these things, what is appropriate and what isn’t appropriate in the workforce, and turn that into a communication opportunity progressive discipline, essentially this notion of they’re getting written up, and then you have a warning, and then you know that, that you get an opportunity to change your or correct your behavior before you know something bad happens to you, what the law calls an adverse employment action, right? You should have that be not progressive discipline, but progressive training. So you know the law doesn’t say that you have to have progressive discipline. You know that you have to have three strikes and you’re out that sort of that’s just something that’s kind of evolved. If it’s clear on the face of your communication, your lexicon, what you do from the moment that you begin to discipline or coach or train or whatever you want to call it, that the real goal is not to set you up to be fired, but is to give you every opportunity to succeed. At the end, you can either show demonstratively that either you just didn’t have the capacity to do what was right, or you didn’t have the willingness, then that becomes a pretty clear signal to everybody, the employee management, and, you know, a judge or jury later on, if it comes to that, that the company did everything it could to salvage the relationship, make the person successful, and they just weren’t able to do it. You know, I tell people, Look, I can tell you how to never get sued for an employment violence. Conversation very easy. Never fire anybody. It starts with designing the position, understanding, you know, that unicorn that you need in that position, recruiting to that and then train, train, train. It takes some time. It takes weeks and weeks and weeks of training, of mentoring to get that person up to where you want them to be, but it’s worth it?

Stephanie Maas
You know, I think there’s an opportunity for a mental shift as well. Is, hey, what if you never get to fire anyone ever? How would that change your behavior in terms of how you dealt with folks? But if we could take a step back and say, Hey, let’s take a different vision. It sounds like we could solve a lot of these problems, but that’s really hard to do. So what do you recommend to business owners, leaders, etc, when they’re in this pressure cooker, how do you get them to start thinking differently? It is exhausting. It takes a lot more energy. How do you get them to start thinking differently?

Alan Crone
I think the first thing is, if I’m a mid level manager and I’ve got six to 10 people in my organization and I don’t know how to manage them, I get into a growth mindset and take some classes, get some training, even if have to pay for it myself. I see managers that have absolutely no idea how to lead someone and coach someone to success, other than just saying, here’s the KPI. If you don’t meet it, you’re gone. I think that’s a deficit in their training and their understanding of what of what their other options are, all right. Well, that’s a certain way of managing, but that’s probably not going to get you. That’s not sustainable. That’s one thing that can be done is really try to get some training and understanding how to do that. The other is, and I’m a broken record on this mission, you get somebody to buy into what it means, and what that means, not just to the business, but, you know, you just created 10 jobs, which is 10 families, maybe three kids that weren’t going to go to college now or going to college. That is the kind of motivation that gets people up in the morning. Those are the people that you want working for you. It’s not just me making a quota, but it’s me making somebody’s life better. They’ve got a higher motive than just working for the company. So, you know, those are just two ways I think that that we can solve that problem. It’s going to take a mind shift. You know, it may take a little bit of stepping back and saying, Look, you know, one, one issue that I deal with in my law firm all the time, and I think people across the board don’t, there’s not many metrics for it, and that is capacity. Because at some point, you know, if you’ve got a team and that team is trying to do the work of three teams, again, that’s not sustainable, but most people have no idea what their capacity really, really is. And you find out when someone’s capacity when they come to you and say, I gotta quit. I just can’t I don’t care what the money is. I can’t do this anymore, particularly for small business people, is okay in the short term, but it is not sustainable long term.

Stephanie Maas
Yeah, people are just burning out. They’re stepping out instead of working through that. So we have talked kind of high level on some things. I want to get into a little bit more boots on the ground. Let’s say I am a small business owner. Five things that I should have to protect my business, my assets. I come to you, hey, I’m starting this business where I’ve got it up and running, where a couple million in revenue, couple million in revenue, what do I absolutely got to do?

Alan Crone
Well, the first thing is, matter how big your organization is, you need an employee handbook, and you need written job descriptions for every position, for all the reasons we’ve been talking about. It’s one of those things that you say that to operations people in a business, and they are job descriptions. And it’s one of those check off kinds of things. No, no. This is a great business tool, because you really need to make sure that what you say people are doing or what they actually are doing, and that is so important, whether it’s compliance with the Americans with Disabilities Act, the Fair Labor Standards Act, Title Seven, all those things, the first thing that a plaintiff lawyer is going to ask for and discover it, yes, give me the job description. If the job description is wrong, good trial lawyer can just make you look silly because your job description is wrong. I could do a whole show on job descriptions. So that’s the number one job descriptions, employee handbooks, which is another way of saying, communicate your expectations, communicate your standards. The second thing is, once you’ve communicated your standards, once you’ve communicated your expectations, they’re non negotiable. If they’re negotiable, then they’re not a standard, or they’re not an expectation. And you should make sure everybody knows. You know if five widgets a month is a non negotiable, and the person can’t do five widgets a month, ask them to seek their salvation elsewhere. As they used to say at my high school, it’s non negotiable. That’s going to do two things. One, your guys that are doing eight widgets a month are going to appreciate you, because they see that that you value their effort. The people that are doing four realize I got this really they’re serious about. That, and you’re going to get better production out of it. The next thing everyone should have is you should protect your intellectual property. My product or my service is not the value of my company. The value of my company is and how I do those things, there are agreements that you can have that really tie that stuff down. Non competes, non solicitation. Those agreements are, can be enforceable. Most of them are not as enforceable as people think, because, again, they’re kind of off the rack. Somebody says, Well, we need to those salesmen. We need to get a non compete with them. And so they go to the internets, they pull down an agreement, and they everybody signs it, and then when you have to go and enforce it, there’s problems because it’s not customized to your situation. And I’m not in the the person who ordered it isn’t going to get what they thought they were getting, and they’re going to have some lawyer like me say, Well, you know is give you that kind of experience which which you don’t want. So understanding what your intellectual property is and what it isn’t is crucial. Part of it may be the cocktail of vendors that you have assembled. The identity of those those vendors is proprietary. And that doesn’t necessarily mean that it’s secret that you know somebody couldn’t figure out who you use for SEO or who you use for supplying that vanilla that that makes your cupcakes taste so so good, but somebody doesn’t have to do a commercial about it or publicize it. So you want to make sure that if that vendor relationship is important, that you protect it, either through exclusive contracts with the vendor or non disclosure agreements, or what, whatever it is, of course, part of that means you’ve got to understand what it is, and then, you know, communicate that to everybody else. So the third, the third thing I would say, from a legal standpoint, is have a relationship with a lawyer, have a relationship with an accountant, with a banker. You know, you should be going to lunch with, with those folks once a quarter, at least, to keep them apprised of your situation and ask them for advice and so forth, keeping good tabs on on those professional relationships and advice and then, and then, finally, I would say, Be fair. Be fair. Be Real, Be human. When you start a business, you’re not starting a family. We’re not family, but you’re a good team. You’re a collaborative team. Have values, have a mission, have a reason other than just making money, that you come to work every morning. I find that when I put my focus on that vision, and I you know, my professional mission is to transform the American workplace, one client, one case at a time. That’s not something that’s going to happen overnight. That’s why we have that disclaimer at the back of it. But you know, when I keep my focus on that mission, great things happen when I’m concentrating on me, how much money I’m going to make, how much growth My firm has, and that sort of thing. That’s when it all kind of falls apart. Because true success is is elevating other people. And so if you do those things every day, then every day you’re going to be a little bit better. And you’re going to look up after a year, after five years, after 10 years, and say, Man, we really have come a long way, although I don’t remember getting here. Those are the things I would do.

Stephanie Maas
Super helpful. So that opened up a whole nother can of worms for me. I have like 10 more questions again. I think the book itself is going to be critical, both, quite frankly, for employers and employees. I’m a big believer that, you know, knowledge is power.

Alan Crone
You know, I think everybody, every reasonable person, would agree that you shouldn’t make business decisions based on accidental factors like race and gender and sexual preference and all those things. And I really think that if I was a decision maker, I would be thinking every day, okay, how can I eliminate the implication that that might even be a factor? And I think one of those things is in order to create, first of all, I say diversity in a in a business is death. And by that I mean true diversity. And true diversity is when you have a diverse opinion on what the mission of the organization is, now, color, gender, all those things are accident. Are accidental in the true scholastic definition of of accidents, right? I mean, as long as you have people that are mission focused, then it doesn’t matter. All those other things don’t matter. But if you’re a white guy like me, I gotta go outside of my my sphere of influence to make sure that those accidents are purely accidental. In other words, I’ve got to go out and go where other people are, more diverse areas, and make sure that I’m recruiting at hcbus. I’m recruiting in the Latino community. I’m I’m going to the women’s lawyers organizations, and meeting people and making relationships so that when I’m recruiting. So I’m recruiting across the the vast spectrum, because, again, the the number of people who meet my mission is a limited number amongst the universe of everyone in the on the planet. I’ve got to really expand my my scope of recruitment just beyond my little circle of friends. And that’s the that’s the way that you really do increase diversity in terms of those accidental characteristics that people have, is to really expand your your view.

Stephanie Maas
Well, I love that. Super, super fascinating. Like I said, I’ve got so many other questions I’d love to ask, but I want to be respectful. And if I’ve learned anything about attorneys over the years, it is how important time is to them. So I sincerely appreciate your time. You obviously have a passion for what you do, and thank you very much for giving your valuable time with us today.

Alan Crone
Stephanie, I appreciate it. Really enjoyed talking with you.