After weeks of restrictions around the world, many countries have embarked on the process of gradually and cautiously loosening these and rebuilding their economies. Together with Obelisk consultant and legal author Philip Allery, we look at 10 areas that all in-house legal leaders need to review after lockdown in order to speed up bringing revenue into the business and protect the organisation and its employees.
#1 Determine your priorities and re-allocate work where necessary
Focus your attention on the work that is going to make the biggest difference to your organisation’s success over the next 12 months. After the emergency measures of the last seven weeks or so, you will now have to work out what short-term work should take priority and make sure that medium- or longer-term projects that can’t be delayed still have the resources they need. Encourage feedback from team members and commercial colleagues; if you are all still working remotely, make the extra effort to ask for input regularly and give team members clear criteria to help them push back on requests for work that isn’t a priority.
#2 Institute a review of standard terms
If your business is a sales business and depends on acceptance of standard terms, now is a good time to see how likely they are to be accepted. If you’ve had feedback that you as a company are perceived to be “difficult” on contract terms, then now is the time for the legal team, in conjunction with the commercial function, to look at the businesses’ contracting practice. Now is also a good time to look again at how to support the business in terms of credit control. For example, reviewing clauses relating to payment and the ability to stop supplying if invoices are not paid or a customer’s credit rating changes significantly.
#3 Speed up the NDA process
NDAs are often missed in contract reviews. However, the quicker an NDA gets signed, the quicker a commercial dialogue can start. Be prepared to get in touch with the other side’s lawyer directly if needs be. It is also worth looking at the process itself. Some legal departments train up commercial people to sign off their own NDAs working to a play book. If the business is in a sector that has a lot of NDAs for example the chemical sector then consider whether a ‘cab rank’ system might speed up the process or outsource this work to a remote service provider like Obelisk.
#4 Define a common approach to typical commercial issues.
Most of these will be well known, but a discussion in the team will bring out any additional issues that may have arisen during lockdown. This would be a good time to consider whether elements of any of your ‘playbooks’ need to be reconsidered. A common approach will help you be more agile, by enabling team members to work across different business units more effectively, or by helping you to set up external remote resource to help you deliver on any peaks in your workload.
#5 Be alert to risks from criminal activity
Unfortunately the pandemic has provided a distraction for criminals to exploit, particularly in areas such as cyber-crime. Make sure that your IT policies are up-to-date and that colleagues across the business who are working remotely are using equipment that is protected with anti-malware software. In particular, pay attention to processes for monitoring and dealing with any attacks or breaches. Similarly, make sure that anti-bribery and anti-money laundering processes are being followed correctly and any deviations from normal operation procedures due to the lockdown have been documented and there is a plan in place to restore standard measures as soon as possible.
#6 Revisit and communicate your data and privacy policies
The pandemic opens up numerous new privacy questions. In terms of your employees, you may have new requirements to obtain and retain health-related information. If so, you must have a policy in place to protect both you and your employees. Similarly, if your business is moving more of its operations online, then you need to make sure that your policies on data collection and retention are clear, available and adhered to. In the UK, the Information Commissioner has communicated a refreshed set of priorities and guidance, here.
#7 Define your responsibilities as an employer
Ensure you are following relevant government advice and guidance across your operations for the return to work of those who are unable to work from home. With companies such as Twitter announcing permanent “work from home” plans, now is the time to make sure that you have equitable policies in place regarding home-working, furlough and redundancy, and that they are widely available and understood by HR and senior management.
#8 Identify any employee groups with special requirements
Your first thoughts will be to consider employees with health conditions, or vulnerable family members, and make sure that their needs are addressed by your policies. You also need to think about other groups who may need extra consideration, for example the UK government has published guidance for working with apprentices, who may need to complete training and assessments at this time.
#9 Familiarise yourself with measures around the world
As the initial peak of the pandemic passes for many countries, approaches to loosening lockdown will vary. Even across the UK, the devolved nations are moving at different paces. Make a conscious effort to track differences in policy in the countries most relevant to your operations, both those where you have employees on the ground and those that are critical to your supply chain. This map from the Financial Times is a useful starting point.
#10 Make sure you are there for the team and the business
As the legal leader in your company, you need to be mindful that the team and your colleagues in other areas will be under pressure both in terms of increased workload, particularly after any redundancies, and the complexity and urgency of issues to be addressed as you find your way in the “new normal”. If you have a team to manage, make sure that they are aware that you are available to help and give direction, even though you are still working remotely. Ensure your communication with colleagues in other functions, particularly the commercial teams, are clear and you have a clear mechanism for prioritising work requests that takes into account urgency, commercial value and potential risk.