Why Free Templates Cost You More: Ep. 57

Speaker A: Hi and welcome to this episode of HR and Cocktails. For those of you that are new, HR and Cocktails is a podcast about all things hr, from compliance to handbooks, onboarding, offboarding, and everything in between. Today we're going to talk about beyond the templates, why the details matter. And we're going to have that conversation today with Aisha Massengill. Hi. Thank you for joining us.

Speaker B: Thrilled to be here.

Speaker A: Yes, definitely. And so we are going to talk about why you need to get your, your templates customized. So, Aisha, thank you for joining me today.

Speaker B: Thank you so much for having me. I'm really thrilled to be here.

Speaker A: Yes, absolutely. So really quickly, just tell us a little bit about you and your organization.

Speaker B: Sure. Uh, this is my 30th year of practicing law, so don't let the smooth taste fool you. That's right. And I've done it in a variety of environments, uh, whether it be from law firms. Uh, spent, um, 20 years in, in house places. And now, uh, last couple years I've been operating Cedric Andrews Legal and Consulting. And, um, it's been the time of my life. Cedric Andrews represents the intersection of the two places I grew up in the Bronx, the Cedric Housing Projects in Andrews Avenue where I laid my head. And I always say, Cedric Housing Projects is where I learned to play basketball. And as a 12 year old girl would like to finally declare I got next, and get the kind of funny expressions from people when they would come to the court, say, yo, who got next? She got next. And they'd look at me and they're like, for real? I'm like, yeah. You know, and so that is something that has helped fuel me as I've practiced law over these many years.

Speaker A: I love that. I love that. And I'm not gonna, um, acknowledge the fact that you might be five.

Speaker B: I'm five three. And I've been five three for a really long time. So imagine that and extrapolate that backwards to a 12 year old. I probably was scrappy.

Speaker A: That's scrappy. That's scrappy. I love that. I love that. Yes. Well, um, again, thank you. Um, so how did you get here from the Bronx?

Speaker B: How did I get into Maryland? So interestingly enough, my sister, um, had moved here, um, into Maryland, and she just kept talking about this great town called Columbia. And, uh, I was just like, all right, it's okay. I lived in Pittsburgh at the time. She was talking about, well, listen here.

Speaker A: Okay, all right, Say hey. Hey now.

Speaker B: Hey. My kids were born in Pittsburgh. I actually worked for the Pittsburgh Steelers law firm. So it was a time. It's a wonderful city. It's a wonderful city. But, uh, she kept talking about this town. And, um, I'm a big fan of history and culture, and it turns out that James Rouse, who founded Columbia, actually did it on the principles of Long Island. And so I was like, there's a reason why it kind of resonates with me. Ah. Uh. And so I just was like, hey, let's move. And so we packed up our boys, who were probably like 3, 2 and 3 at the time, and decided to give it a go here in Maryland. And, you know, 25 years later, still been here. I took a little side quest. I lived in Atlanta for a couple years, but otherwise have been here and love every minute of it.

Speaker A: Yeah. No, Columbia, um, there's so much history in Columbia. I mean, you know, Harriet Tubman, you know, all of the things. You know, Freetown Road and, you know, all of the things. So many things in Columbia. So it's great. And I'm from Georgia, born and raised. Um, not in Atlanta, even though everybody from Georgia would like to be from Atlanta. But I am proudly from Augusta. Proudly from Augusta.

Speaker B: So you know Conyers, right?

Speaker A: Yes, yes, I do know. On the way. Exactly. Right before you get to Lithonia, which is a lot.

Speaker B: Estonia Mall.

Speaker A: Exactly. Stonecrest, where my uncle lives. So, yes. Um, so, yeah, different journeys. But being here, Columbia is amazing. I, too, have found it to be great. Um, so, you know, now, you know, kind of talking about being here, being in this place, being in this space. There are so many small businesses, so many businesses that don't have in house counsel, that don't have an HR department. Um, and so they, you know, some of them are smart enough to outsource. Right. Some of them are smart enough to pick up the phone and call us. And then there are those that I'm not going to say they're not smart, but they just don't have enough information to know. Right. That going online and getting a template from, you know, Legal Zoom or other places, while it is a starting place, it should not be your final destination. Right, Right. So talk a little bit about, you know, high level. The risk of just, let's call it going online and pulling out an NDA, just a blanket NDA, um, knowing that the state of Maryland is the state of Maryland. Right.

Speaker B: I mean, on a very basic level, um, it is not customized to your business. Um, you know, as a lawyer, I can talk about, like, hey, there may be some state law issues. So Depending on where you are across the country, you want to, you know, pay attention to that kind of thing. But on a very basic level, you don't really know how to fill that thing out. You don't know what things go in there to populate the agreement. You just know that you have a template and you throw it all together. You don't know if there's some things that should be pulled out, if there are some things that should be added that help protect your business. And I real quick, I literally just, uh, negotiated an NDA for a company last week and I was negotiating against like a very large M and a firm. There was so much stuff that they had missed and that was supposedly like a big fancy company. So imagine that. You know, you're a small business owner, you just want to get it done. But here's the thing. Eventually those documents come to bear and what feels like an easy throw together in the beginning, you actually have to enforce that thing or make it stand up or not. Or not.

Speaker A: Right.

Speaker B: That's a whole. You start rereading and you're like, ooh, it's not very clear. Ooh, it doesn't include that language.

Speaker A: Yeah. And I think some people use it as a deterrent and not necessarily to be enforced. But before we go all the way there.

Speaker B: Mhm.

Speaker A: I think we should get a drink.

Speaker B: Absolutely. Let's do it.

Speaker A: Yes. So what would you like?

Speaker B: Uh, as a New Yorker, I just want to get this dirty martini business handled.

Speaker A: All right. I love it. So a dirty martini coming up. Okay, so Aisha, you chose dirty, uh, gin martini. Why'd you choose that?

Speaker B: Well, I am a New Yorker by birth and so I'm a big Sex and the City fan and it always makes me have my grown and sexy vibe going on.

Speaker A: All right, I love that. I love that. So we have what we need. I am a shaken and not stirred martini girl. Say whatever you want to say. Um, so we have a shaker with our ice already in it. And then I have my favorite gin, which is Hendrix. Do you have a favorite gin?

Speaker B: I don't. I have a gin that tastes good and makes me feel right.

Speaker A: Oh, there you go. And I had a friend who used to say, gin makes you sin, so she stopped drinking it. So we're going to do four parts gin. Um, and, um, we will, you know, and when I make these at home, because this is like one of my go tos, I, um, eyeball it.

Speaker B: I'm not going to lie, but I

Speaker A: am measuring it for the benefit of everyone. Else, um, so four parts gin. Um, because we're doing a dirty martini, we're going to do half the amount of the driver mousse that we would normally do. So we would normally do one part. Um, but we're going to do, um, a half because we're going to do dirty, which is olive brine. Um, I like to buy my olive brine, like, already in a bottle so I don't have to, like, dig around the olives. Because why, when they sell it like this. Right, um, exactly. Right. So we're going to put a little bit of that in there. I don't like mine extra dirty. I have somebody, a friend, she's like, I want mine filthy. Oh, yeah. And I'm like, uh, what is she? What is she? I'm not sure. I'm not sure exactly. Exact. Exactly. So we are going to shake and we have our extra, extra cold martini glasses. They've been in the, uh, they've been in the freezer for like an hour and a half.

Speaker B: Oh, wow.

Speaker A: So we're going to shake and then we are going to strain into our glasses. Now, we decided that we were going to have, um, blue cheese olives. Yes. Yes, indeed. Yeah. So we have, um, so we have already stuffed our blue cheese olives. So we will place them here. And I love blue cheese olives. And a dirty one.

Speaker B: It's like a double O7 that makes

Speaker A: sure you're not stirred. So cheers. Cheers. That's good.

Speaker B: That's delicious. Yeah, that is absolutely delicious.

Speaker A: So we have our drinks and let me tell you, our eat these.

Speaker B: Okay.

Speaker A: I love the olives. I love the olives. So. And for me, the gin martini has a lot more personality than a vodka martini. I know there are, you know, different schools of thought on that, but yes, I'm gonna eat my olive. The. I lovingly stuffed myself. So there you go. Um, all right. So we were talking about, um, you know, making sure that the documents are customized. And to your point, you know, NDAs are one, non compete's another. You know, people may, you know, try to get documents that they find off the Internet, but it's really important to have that customization because ultimately, to your point, it may not be enforceable. And right before we made our drinks, I was just saying that I think a lot of times what I hear, um, clients saying is, well, I just don't want them. I want them to think that they can't sue me. They're using it as a deterrent, but that's not a strategy. Tell me me why that's not a

Speaker B: strategy because, you know, like a good game of cards. Some, at some point someone's going to call your bluff, right. And you're going to have to read that. And it's a pennywise and a pound foolish, Right. The dollar that you think you're saving on the front end by snatching it off the Internet, eventually, if someone contests it, you're going to pay twice as much and the mess that you've made. The story I always tell is, uh, my kids, when they were younger, they used to save their little monies to go to GameStop, buy their games, and they would take their money and it'd be all crumpled up and they just splat it on the counter. And I was just like, babe, you gotta straighten that out for the person. They don't know what's there. And when you do that to your attorney, you cause more pain to yourself in the long run because we've gotta spend time trying to unravel what you've done and then we've gotta do it in a way that protects you and also puts your best foot forward against the opposition. So, uh, when you take that shortcut in the beginning, you're really just creating harm for you in the end.

Speaker A: Yeah, absolutely. And also, I mean, once you get a Maryland compliant non compete, you have a Maryland compliant non compete. I don't have to go back to you every single time unless something significant changes in the terms that then would require that. So why would I take the risk if I'm hiring a workforce that can get non competes a. You know, Maryland has created a salary threshold and all of these things that a layperson would not know. Right, right, right. So you can't give your, you know, $30,000 inside Sal, um, that you're probably paying a salary, but that's a whole nother conversation. You, you can't give that person an alcohol in Maryland because they don't meet the salary threshold regardless of whatever they're doing. Right. So I think it's important. And you know, I think another place where I see people templating it is handbooks. Let's m talk about this handbook. Let's talk about when you have a 12 person company and you have all the EEO, all the Cobra, all the FMLA in there and your employer size does not require all of those things. And now you've obligated yourself to it.

Speaker B: Yeah, you just bought yourself a ticket on a train that you do not want to be on. And there's case law that says once you start to follow it, you have to see it through.

Speaker A: Yeah.

Speaker B: So you may not have been, you know, you may not have had that 50 employees within the 75 mile radius. And now you've bought yourself a compliance headache because you just snatched it. I literally like all of these things that happened. You know, a friend of mine who's a government contractor doing really well, and he just told me, look, um, I worked with this guy who's at a bigger company, so I just took his handbook. So I know it's good. And the stuff that I was able to go through and be like, through his handbook, it was just immense, you know, and then he realized, oh, like it is different, you know, to have a handbook for my 10 person company.

Speaker A: And I mean, absolutely, from a compliance perspective. Right. I mean, because you don't have to have cobra, you don't have to have FMLA in the state of Maryland, you don't have to pay, um, safe and sick leave, you just have to offer it. Like it's so many things that if you don't know, you don't know and then you obligate yourself to it. And you know, to the extent that it's in your handbook and you say this is what you do, whether you're legally required to or not, this is what you do now. Now this becomes your, you know, um, guidebook. But also from the perspective of customizing it for your culture.

Speaker B: Right, I was going to say that, yeah. I mean that the, A lot of times I am presented with issues that are not truly legal in nature, but because I have an HR background as well, I'm able to highlight that. And that handbook is your opportunity to set the tone for, uh, the folks that you're working with. And so if you just say, I'll let my lawyer do it or I'll get the template off mind, it's a missed opportunity. And how you put the words together, like, I'm a fantastic writer. But it's important that it's capturing your tone, how you want to set the tone with the folks in your company. So if you just grab something off the Internet, that's a lost opportunity for you.

Speaker A: A hundred percent. And if you grab it off the Internet, it's gonna just, it's gonna feel very sterile. If you get it from someone else's company, that's their culture.

Speaker B: Exactly.

Speaker A: Unless they got it off. Right, right, right. But that's their culture. And also, what people also don't understand about going and getting somebody else's handbook, they may offer different, they may have different pain thresholds of things that are not compliance or statutory. Right. So they may offer, you know, say you could work from, um, remotely if it's, you know, bad weather where you may not be able to offer remote work. Right. So if you say I offered room, uh, we offer remote work on an inclement weather day and you really can't, how are you going to handle that when the situation arises when it snows in a state of emergency and people can't leave the house where you had an opportunity to review that and say, hey, we don't offer remote work if offices are closed unless you're an exempt employee, you can use your time off. Right. And so having those conversations and helping people to understand what the expectations are, how we do things in our organization. Um, and, and those are not things I can tell you, going through handbooks. Those are not things that people are contemplating when they're writing a handbook. They're m not thinking about there. And they're definitely not thinking about it when they're getting somebody else's template.

Speaker B: Right.

Speaker A: You know, we pay for a volunteer leave and then somebody comes to you because, uh, you know, this employees know their rights better than the handbook, better than the employee, than the employer does, Right?

Speaker B: Yeah.

Speaker A: And they'll be like, well, what about that volunteer leave? And then you're like, I don't do volunteer leave. Like, yes, it is. On page 27 of the handbook, it said we do get 10 hours of volunteer leave. Right.

Speaker B: They have the same access to the Internet that you do and they will use between that and terminations, like, the employee always has that sixth sense. When the time is near, they will start doing their little things in the background and they're ready for you. All that time that you're waiting and deciding, they are 10 steps M ahead of you already. Let me tell you.

Speaker A: Let me tell you about that. I am dealing with the situation right now where if I believe in calling a spade a spade and people. And when people come to me and they're like, well, I want to do X, Y and Z and it's employment at will. I always tell them employment at will is like a piece of Swiss cheese with big old holes. It's more holes than it is substance. Right. And unless you know how to navigate employment at will, you just creating the whole situation for yourself. So these individuals, you know, decided that they were going to interpret employment at will for themselves, Right? And, um, they were like, well, we're going to just say that, um, you know, it was because other people were complaining and there's. Here's all these things that they've done over the last year. And I'm like, I love that for you. Um, where's the documentation where you advise this person of this in writing and advise them that failure to improve and what improvement looks like could lead to a further disciplinary action, up to and including termination where that happened? Oh, well, I mean, in the handbook it says it's employment at will. And in the handbook it says that they don't perform. I was like, but also your handbook says progressive discipline. So let's be clear. Okay. Yeah.

Speaker B: Uh, it's a, it's a disease, I think, particularly with small business owners, because in my experience, they have a lot of autonomy. And so they're just like, well, the law says I could fire them for any reason. And I will tell them like, yes. And a jury will kick you in the teeth for it.

Speaker A: Mhm.

Speaker B: Because they'll become very angry that you don't have any good reason, even though legally you don't have to.

Speaker A: Correct.

Speaker B: And that is where information and expertise miss each other.

Speaker A: Right.

Speaker B: So you get the template, you get the document. You have a little bit of knowledge about its employment at will, but here's how it plays out in the real world.

Speaker A: Yes.

Speaker B: I have a client, actually a well known company. Um, they let a salesperson go, a woman. And they were like, we were trying to do the humane thing and you know, let her go. And to your point, she's not a dog. No, they said they, they, uh, she was a bad salesperson. Her numbers were bad. The numbers kind of showed it, but they didn't, they were not clear in their communication. And then ye. At the last second she said, oh, and I've been sexually harassed. That part. And so now we're dealing with that. And if you would've done just not let your hubris win and given her severance and had that security, it would have been closed. But you dragged it on. And $150,000 later, here we are.

Speaker A: Yeah.

Speaker B: In an at will state.

Speaker A: Yeah. Oh, yeah. And similarly with this client, in the interim of all these shenanigans, um, this individual said that their manager had made some comments about, um, you know, being managed by, you know, and their feelings toward a certain group of. Right. That this person happened to fall into. Right. And so, um, I'm like, yeah, so if we had just died and then. And then when the manager came back and said, well, uh, we want to terminate. I'm like, okay, well a. The business runs the business. This is my first statement. All the time. The business runs the business. However, here are some things to consider. Right. And I'm like a. There's no progressive discipline. Performance review was good. This document that you put together, which is basically just a narrative summary of all the things that they've done wrong that you haven't explicitly told them about along the way, are here. And, oh, side note, we got this Dre Common over here. M. Yeah. And so they're like, well, I just don't feel like I should have to write them up. And I'm like, well, you don't have to. You can do whatever you want to do, but here's the risk that goes along with that. And then to add on to that, they were like, well, I'll do the written warning, but when it's over. Yeah. You know where this is going, Right. I've already made my decision. I'm like, well, that's also not how it works, because the per. This is not an exercise. Right. If you tell somebody that this is what you expect of them at the end, there should be some goodwill. Right. That you're going to allow them to perform in this job if they continue to be successful. So people read into whatever they want to, because again, they're like, okay, well, I'll write them up. But it's employment at will, so I should be able to do whatever I want to do.

Speaker B: And here's the thing about that. You have to continue to be a human being.

Speaker A: Yes.

Speaker B: And you have to run a company that other people will want to work for. M. And in all of these decisions are human beings, lives at stake. And I've overseen thousands of people be laid off. M. And I always say it's a sacred exercise, because at the end of that conversation, someone is going home and. And they're going to tell their spouse, their partner, their kids, I just lost my job. And people are scrambling trying to figure out what happens next. So you never want that person to be surprised unless they do something really outrageous. And that's the goal situation. But if they are just not meeting your expectations. People are not mind readers. You have to let them know they're not meeting your expectations so that they have a time to cure it. And to your point that, you know, performance improvement plan. It drives me nuts when people treat that as pro forma.

Speaker A: Yeah.

Speaker B: It's some. That is the person's opportunity to recover.

Speaker A: Right.

Speaker B: Right. And they should, because I've actually seen people have pips and go on to be wonderful employees.

Speaker A: Yes.

Speaker B: So you really need to approach it that way. Or don't do it.

Speaker A: Or don't do it. Also, why, if your goal truly is to have someone in that role doing the job well, why does it matter if it was the person who wasn't doing well before? Why does that matter if that's really the goal? And then that triggers to me is something else. Right. That, that's what that says to me. Um, so yeah, yeah, I know that we were talking, um, you were talking earlier about the cost of fixing things. And um, you know, I, I see. You know, I feel like there are times you have clients that are one way or the other. There are some clients that are like, you know, wanting to throw a severance at everything. M. Right. And I'm like, but mhm. Why can't we just do this the right way? Why are we just throwing the severance at everything? And then there are some managers and some organizations that regardless of the risk, they're like, I just, I don't care. They have to be gone today. And no, I'm not getting ready to pay this person. X, Y and Z. How do you know? Because it, because they have these, their policies, they have their things that they are interpreting on their own and they're doing their own thing. And again, there's so many things. Um, I mean you get to see a lot of times after they've messed it up and then a lot of times they'll call us and be like, well, we have an EEO claim and we need to put some processes into place or we have mandated training that we have to do because we had a foreclos finding. Uh, we need to bring somebody in to do it. But how do we get in front of those businesses to help them understand the importance of the implementation? The importance of it's not just sufficient to have a document or to say you did a thing if you don't know what to do with it and if you know just enough to be dangerous.

Speaker B: So people, uh, who follow me or listen, I always use my kids as examples in a lot of what I do and what I teach. And I always say my oldest can hear the lesson and can follow the instruction. My twins are experiential learners. They have to experience the lesson and then they go, oh, uh, okay. So to me that's how I approach my employers. Some folks, they're like, yes, listen, we want to do the right thing. I think everyone wants to do the right thing. But it also is a process of like, you got to slow down. I know that you are in the business of trying to make money. I need you to slow down for five minutes so I can get your attention. Oh, you're not going to give me that five minutes? Then your soon to be former employee is going to get your attention. So you decide. In my business, one of the things that I really stress is I want to be in relationship with you so that we can walk side by side on these issues. And I can give you the benefit of my experience to say, this is not going to end well. Um, right. And so how do we get ahead of that? How do we navigate that now as opposed to the pain? Because everyone, even at I've worked for some huge global companies and people would say, like, we're just going to fight it. I'm like, no, you're not. So a lot of times they want to fight. And then, you know, it's like, hey, we got to do litigation prep. We got to do deposition prep. We have to pull you out of your meetings. I'm asking you for every document you've ever produced in relationship to this known to man. So it's way more disruptive, it's way more tiring. And some people have to, like, go through it or they have to pay the money and write the check. Other people, you can just have try to be in relationship with them enough to have the conversation to say, I'm really big on context. This is what we do and this is why we do it. That's the danger of folks who are in love with templates. They just say, gimme, gimme, gimme, and they don't understand the context as to the why you do that. And then they create the problem on the back end. When I'm able to get in front of someone and say, I'm asking you for this, but let me tell you why. I think it's an easier conversation, 100%.

Speaker A: And I also am high context and I give lots of detailed information. Like, I literally, when I am showing my team, like, what an ideal response to a client is, it's usually like, here's the short version of the answer so that you can just executive summary. Know what I'm saying? And then there's the. And here's the reason why, you know, Fair Labor Standards act fact sheet 10A says X, here's the hyperlink, and here's the boiled down version of that. But here's the link. So if you want more detail, right? And here's this. And here's this. And here's also an opinion letter as to why an administrative assistant is not exempt.

Speaker B: Yes.

Speaker A: Um, just one example. So you know, I definitely agree that giving the context is really important. Um, and I have several experiential learner clients. And when I remember when I was in corporate, I used to have some experial. Experiential. I can't even say the word anymore. Experiential learner. Um, managers that just were like, I don't care. And so I feel like this is Pee Wee's pay house. The word of the day is hubris.

Speaker B: Mhm.

Speaker A: Right. Mhm. Um, because that's really what it was. It was like, I'm in control. In control. I'm in charge. I'm your deciderer. I will do the decidering.

Speaker B: Right, exactly.

Speaker A: And it's just like you can do that, but that's not, that's not going to end well. Um, so it's always interesting to walk down that path with them as well. I have a colleague, um, so I have a client that has an internal HR person, but they have a management team that's really interesting. And so I'll tell her because she gets all frustrated when she gives this information to people. And I'm like, no, no. I am like Whoopi Goldberg in the color purple when Mr. Went there to cook. And she said, you know what? I'm ready to sit on the porch and wait for stuff to blow up. That is me. I'm like, ooh, I already know what's gonna happen. So I'm just gonna sit out here in this rocke chair and I'm just gonna wait and wait and wait. Because I already know what's gonna happen. I don't need to be in there and watch it. Right. And so, um, you know, they definitely have their. It's always better when they decide that they want to, um, take the information, um, work with you, be proactive. But unfortunately that's not always the case. So if you had one thing that you could just tell, you know, business owners, executives that don't have an internal, um, legal department or an internal HR department, what would you tell them about the reason why they should get consultation on documents, anything that someone needs to sign, anything they plan to enforce or use to, to deter, um, what would you tell them is the reason why they should do it?

Speaker B: I think people want to be right and it's a high price to be right in this space. And most times you're wrong. It's something like 2% of cases actually ever go to trial. You're going to pay.

Speaker A: Mhm.

Speaker B: You're going to pay at the beginning or you're going to pay at the end. And so what I always ask my clients is, I don't expect you to be an expert in the law. I want you to spot the issue and access the resource. And in the case of the work that I do, I am a resource to folks. So you spot the issue. You know, ooh, we probably need a policy for this. We probably need a document for this. But I'm going to get the expertise to help me get it done right the first time. And then, like you said, then you can repurpose once you know, you have a foundation, but, you know, you'll spend far more time, energy, and resources trying to figure it out. And then you're 75% of the way there. There's still that 25% out there that is still lingering and hanging over you. And that's the part that's gonna bite you in the rear end. And you've worked so hard to build your business. I can't help you. Once you've gone through the windshield, I can't pull you back. So you click in. So let's click in together.

Speaker A: Yes, yes, yes. And if you are in Maryland and you go to Glen Burnie, you see that big crash test dummy that's standing outside the mva? Don't be that crash test dummy. Right. Um. Right. And maybe I might be dating myself, because I definitely remember those commerc. Um, well, Aisha, thank you so much for joining us today on this episode of HR and Cocktails. And thank you for joining us today.