Carson Burnham is a standout employment lawyer with a highly regarded discrimination and sexual harassment practice and a strong presence across the US.
Carson is chair emeritus of the cross-border practice, and co-chair of the M&A practice, at Ogletree Deakins. She specialises in worldwide ethics investigations for US and European multinationals; strategic approaches to employment law issues in cross-border M&A; and managing executive-level compensation and disputes. Her practice covers sexual harassment and bullying investigations involving parties from multiple countries; implementing changes to compensation practices; and resolving disputes with represented employees. She also focuses on corporate restructuring, engaging a local or expat workforce, policy implementation and training, and litigation across borders.
What attracted you to a career in the law?
I come from a working-class part of northern New England in the US, where people are confronted every day with the social injustices that the working poor are expected to accept courageously. So I felt drawn towards an occupation where I could promote ethical principles before I even knew what that occupation was. As things turned out, I became a lawyer, and now devote my practice to helping corporations navigate the laws impacting employees, to ensure they treat their employees fairly. I was lucky to find success in an occupation where I can make a small difference, especially in times like this when principles of right and wrong and the rule of law are under constant attack by the very people responsible for protecting them.
How does your previous experience in-house at Novell enhance your work in private practice?
In-house lawyers are expected to think differently than outside counsel, in that their primary objectives are to understand and advance the interests of the organisation as a whole, rather than to be experts in one particular subject available for consultation. In-house attorneys also need to be problem-solvers, so when an issue arises the in-house lawyer’s responsibility is to identify it, determine a solution and carry out that solution. This requires having an understanding of the many ways legal advice will impact a business, as well as the many ways business issues implicate the law. In addition, it requires the in-house lawyer to become an expert at influencing leaders across multiple functions to assist when an issue needs to be resolved.
After working in this role for several years and then returning to private practice, I’m able to draw from my own experiences in-house and work with my clients behind the scenes to help them devise and carry out the business solutions they are responsible for managing. This results in a collaborative, consultative relationship meant to help my clients to advance within their own organisations.
In the cross-border employment law field, my support focuses on assisting clients with implementing business objectives. When a client comes to me for assistance with an issue that impacts employees in multiple jurisdictions, my support is designed to work with them to understand the desired business result and the most effective way to reach that result, taking into account the client’s priorities in relation to cost, speed and risk tolerance. My personal objective is to help clients manage change while treating employees with dignity and respect, and to give them the legal and practical tools to make that happen along the way.
You founded the firm’s cross-border practice group – how do you ensure the firm stands out among competitors in the labour and employment market?
Our cross-border practice group operates as an integrated global solution to support clients’ issues in every country. We model ourselves in the manner our clients strive to achieve themselves – working collaboratively across borders, time zones and languages to provide consistent support, rather than tackling issues on a country-by-country basis or staffing matters according to a structure typical of law firms that is designed to promote their own business objectives over their clients’. This distinguishes us from general practice firms with a large global footprint, since those firms’ employment work is limited to local support in individual countries, without offering the holistic understanding of how a particular matter fits in to an organisation’s international strategy. Our model also distinguishes us from the smaller labour and employment boutiques who have not developed the same deep bench of experienced attorneys at all levels. Using a virtual-office model staffed by lawyers in multiple locations from a wide variety of international backgrounds, we are able to provide clients with a team experienced with the full range of industries, subject matters and jurisdictions in which employment matters arise.
How has the surge in corporate investigations and whistle-blowing cases affected the type of work you have been seeing recently?
Employees have demonstrated a willingness to come forward to report matters of concern – worldwide – particularly when they feel these reports will be taken seriously. As a general matter, an organisation’s willingness to investigate and remedy matters leads to noticeably positive cultural change, which builds as employees begin to trust leadership to follow through on their commitments to policies. We have observed not just that there is an increase in investigations, but the way investigations are managed has changed as well – whereas investigations were once perceived as a defensive measure, they are now being used as a useful solution to identify and remedy concerns before they become crises.
Of course the flipside is also apparent. In organisations whose corporate culture does not actually support the principles underlying their written policies or mandatory training, the increase in reports of violations has been a source of frustration, particularly for leadership who are accustomed to governing without being questioned. These changes, brought on by the #MeToo movement and generational shifts in the workforce, are resulting in unanticipated conflicts, which tend to get in the way of productivity and profitability.
To what extent has there been a change in clients’ approach to investigating and handling such matters in recent years?
Clients are seeing a new value to having outside counsel conduct investigations, since external third parties do not have any real or perceived authority over the daily lives of participants, and employees generally welcome the opportunity to provide information that will lead to improvements in their environments. We are also engaged more often to interview employees for informational purposes when an organisation is experiencing an anomalous level of attrition or workplace conflict, in comparison to the remainder of the organisation. This reflects our clients’ interest in identifying and resolving matters early on, when remedial measures are still available that focus on improving circumstances that can lead to concerns, rather than terminating employees after a situation has become toxic.
What are the main challenges you face when assisting clients with their compensation practices?
The driving force behind changes to compensation practices is usually a desire to improve financial results by rewarding for work that adds value and discontinuing financial rewards for work that does not contribute. In all countries outside the US, however, the amount and type of employee compensation is contractual, meaning that a company is not authorised to discontinue it unilaterally and employees (and their representatives in many cases) must agree to the change. While this concept is simple enough to manage on an individual level, the sheer volume of a workforce inhibits many organisations from implementing changes on a consistent basis. In addition, many organisations that grow through acquisition inherit the compensation plans from predecessor organisations, none of which was developed with the same objectives as the acquiring company.
To address these challenges, we work closely with clients to develop compensation plan changes that conform to the procedural requirements needed to implement them lawfully. Just as importantly, however, we also focus heavily on communication and implementation strategies that will allow organisations to obtain the best possible outcome for managing compensation plan changes. Typically, we collaborate with clients to build a strategy that will enable them to partner with internal management, HR and legal at the local level, in a way that incorporates their advice without losing the key components that address the reason for the change in the first place. This extra effort, which goes beyond the basics of legal advice, helps organisations improve cultural and communication gaps between headquarters and subsidiaries, and assists our clients on an individual level to lead a project successfully where many others often fail. In the end, when project leaders at headquarters recognise and prepare for the misgivings that subsidiary management understandably have when asked to effectively renegotiate employment terms with their employees, that up-front effort to seriously consider and assuage the inevitable issues marks the difference between a successful outcome and a negative experience.
As labour and employment law issues become increasingly global for corporate clients, what are the key qualities lawyers currently practising in the area should possess?
Lawyers who assist clients with issues in multiple countries need to be prepared to explain things in a way that will resonate with all sides, and also to let each side know what to expect in response to various ideas and positions. In many ways the job is three parts diplomacy to one part advocacy, since business matters are extremely personal in the employment context.
What is the best piece of career advice you have received?
A corporate executive once told me: “No one really knows what they’re doing. We’re all just faking it.” That still helps me to consider that the most difficult challenges in business come from uncertainty, and the most effective way to manage uncertainty is to stay calm and do the best work you can.