In the wake of any crisis, stress and tensions run high. As a result, employers may be inclined to communicate prematurely, over- or under-communicate, or otherwise communicate without thinking about the potential legal repercussions that could follow (for example, regulatory scrutiny, shareholder lawsuits, employee lawsuits, etc.). To avoid a misstep that might compound a crisis, it is advisable to consider, in advance, the process for delivering—and the content of—any communications, and to act strategically rather than reactively.
Here are five tips to consider when preparing strategic legal communications for company stakeholders, employees, and the public in the wake of a crisis:
1. Consider the Timing and Order of Any Communications
In the early minutes and hours after a crisis, informing key people is imperative. Depending on the nature of the crisis, however, it may be advisable to share the information with certain company advisors and/or "need-to-know" people, only. Or, on the other end of the spectrum, the crisis might require that the information is shared widely with officers and directors, employees, the board, and the public. As soon as any crisis hits, employers should take a moment to consider when to begin notifying and who should be notified—and in what order. Specifically, consider the notification flow from the C-suite to the board (as applicable) down to the employees. Consider who should be notified first—the CEO, followed by the chair of the board, for example—and who should be notified thereafter. If a public-facing communication is required, this should typically be done swiftly, but not before counsel is onboarded and internal stakeholders are notified, to avoid surprises and the turmoil that may follow when internal personnel learn of a company crisis at the same time as the public.
Tip: When a crisis materializes, consider whether there is insurance coverage that may apply, and notify any insurers promptly, so as to maximize coverage opportunities.
2. Consider the Method of the Communication
How information is communicated is as important as the content. The nature of the crisis will dictate the medium. For example, if a crisis impacts IT infrastructure and personnel cannot access email, a communication via text or other email alternative may be necessary. If the crisis concerns a physical threat to employees on premises, a widespread announcement by way of numerous channels is advisable. Internal website landing pages can be effective for communicating critical and time-sensitive information to employees as well. If the crisis is widespread or otherwise public-facing, or if an image of stability for employees is central to the messaging, consider whether a company executive should communicate via a professionally curated video message.
Who is authorized to communicate should be established well in advance of any crisis as well. Employers should designate someone in HR or marketing to act as a central repository for questions, and any engagement in employee or customer or other stakeholder questions should first be vetted by legal. Company policies should make clear to employees that only certain personnel are authorized to speak on behalf of the company, and that if employees receive inquiries about the company they should not respond (including avoiding saying "no response") and direct any inquiries to a specific individual in HR, marketing, or legal, as may be appropriate.
Tip: Employers should establish, in advance, a method for communicating with employees outside of work phone and email in the event those are inoperable or inaccessible in the wake of a crisis.
3. Content is (Always) King
In any crisis, authentic and transparent communication that draws on company core values will resonate. However, crisis communications should be crafted with the close advice and guidance of counsel to ensure the full landscape of potential legal repercussions is considered and nothing is said that will exacerbate a crisis (or create new or additional legal issues). The content of the communications will also evolve over time. While employers may feel pressure to communicate immediately in the wake of a crisis, particularly in the face of employee questions and concerns, saying too much at the outset before the full nature and scope of the crisis are known may be a misstep. In the early days of a crisis, it may be enough to ensure employees and others that the matter is being handled with the full attention of the employer and alongside legal counsel, that the employer takes the matter extremely seriously, and that updates will be forthcoming as the employer is able to provide them. We can always say more, but it is difficult to pull back a statement that is made prematurely or without key information in hand.
Tip: Employers should spend time in advance of any crisis thinking about a clear "core values" statement that would be relevant in any crisis. Working with counsel to think through potential crisis scenarios that are specific to the nature of your company (as examples, a data breach, or active assailant, or food or product recall, an unexpected C-suite departure, or allegations of workplace misconduct, etc.) is also advisable, so that "holding statements" can be prepared in advance—and held or issued as needed when a crisis hits.
4. Prepare FAQs and Build on Them
When a crisis hits, employees and others will have many questions. Anticipating those questions in the form of an FAQ document, and adding to the document as actual questions come in, will position the company to respond swiftly and in a uniform manner to what may be an influx of questions. Directing employees and others to a FAQ landing page also lessens the burden of the many questions people will inevitably have in the wake of a crisis.
Tip: Consider different FAQs for different stakeholders, including investors, customers, employees, and others. With each set of FAQs, legal should undertake a close review to avoid the pitfalls discussed above.
5. Anticipate a Leak
No matter how closely held employer communications are, or how much an employer might urge employees and others to keep internal communications confidential, the reality is that the information very likely may be leaked. In advance of issuing any communications, review the communication through the lens of a potential headline in a major newspaper or industry publication. Employers should get comfortable with every line (and the statement as a whole) being quoted in some fashion, and reproduced or replicated on employee social media accounts. Alongside legal counsel, consider how a communication can further and bolster a company message, so that if it does leak, it serves as a marketing piece of sorts for the company, even in the wake of a crisis.
Tip: Depending on the nature of the crisis, and if the crisis is or becomes a public-facing one, working proactively with friendly journalists to get the company narrative out may be advisable. Again, counsel should steer this to ensure that a proactive narrative makes sense in the circumstances—and, indeed, despite all of the above, there may be times when a company can say very little, if anything at all.
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In short, thinking strategically about communications in the wake of a crisis, and leaning on counsel to support the process and content of the communications, will go a long way to lessening (rather than elevating) the ripple effects of a crisis. This, in turn, will allow you to get back to business as gracefully and quickly as possible.