Information Governance | Intelligent Information Management (IIM)
In this series, we've been exploring the intersection of IIM policy and the law in order to help IIM practitioners and legal specialists work together more effectively by gaining a better understanding of the relationship between the two.
So far, we've covered:
- Part 1 - IIM Policies and The Principle of Hearsay
- Part 2 - IIM Policies and "Ordinary Course of Business"
Now, let's compare IIM policies to contracts.
Drafting Policies vs. Contracts
Contracts and policies both have legal implications. Nonetheless, they are quite different. Their purposes are different, and the skills needed to draft them are different.*
When I went to law school, the topic of corporate policies came up only sporadically, and we learned nothing about policies and procedures outside of their legal implications. When I practiced law, policies and procedures were treated simply as extensions to the contractual documentation.
When I moved out into the business world, I learned that policies were a lot more than that. Today, I run workshops on policy drafting, and I spend much of my time teaching people how to draft rules that don’t sound bossy. Interestingly, whenever I get pushback on that approach, it invariably turns out that the objection comes from a lawyer.
Many lawyers, of course, have no problem with policy documents sounding more inclusive and less confrontational than they have historically. But some are not convinced; they want policies to sound strict so that people know they mean business! In essence, they want policies to sound like contracts.
I get that. I get that their interest in the policies is limited to legal issues. But policies are not simply documents setting out terms and conditions. They have implications for the leadership style, management approach, corporate culture, and workplace wellness issues that touch everyone working at the organization.
The goal of a contract is to set out the agreed rights and obligations of the parties. The goal of a policy is to help the organization function properly.
A contract is intended to protect the parties.** Its main concern is legal defensibility. We tend not to care whether the other side is positively engaged or feels warm-fuzzies when they read it. We don’t care whether they buy in emotionally to our approach. If the contract contains cold, strict sounding language, so be it.
On the other hand, we want our policies to encourage buy-in and to induce compliance. We don’t want them to cause people to put their defenses up. Well-written policies set a positive tone for the organization. They contribute to the ongoing employee experience long after the initial employment contract is signed. Similarly, customer policies contribute to the customer’s experience long after the initial sale or service.
When you make a policy sound like a contract, you’re missing out on an opportunity. Instead of improving engagement, it will engender resistance. Ignoring the human relations elements can prove toxic to the corporate culture and damaging to productivity.
IIM Practitioners and Legal Professionals - Working Together
Policy drafters need to work together with legal professionals, but each in our own spheres. We don’t want our policies to be drafted exclusively by lawyers any more than we want contracts to be drafted exclusively by policy writers.
In theory, the lawyers and the IIM practitioners are on the same page when it comes to the outcomes they want to see. But when it comes to setting rules, it is important to keep in mind that we will be working on the front lines with the people who are subject to those rules.
Absolutely, pass all your draft policies through the legal department for an opinion. They will tell you about any risks that stem from what you put in the document. Once you understand those risks, your goal is to make sure that your policies are not creating a risk that you are unwilling to accept.
But stand your ground when it comes to regulating the tone of the voice in the document. That tone of voice will have implications for you down the road.
If lawyers and policy writers work together, we can balance the legal elements with the human factors supporting the types of leaders we want to be.
*Like Parts 1 and 2, this Part cannot be taken as legal advice; it is for educational purposes only.
**At least, to protect one party. Employment contracts rarely protect the employee in the same way they protect the employer. Same for the customer.
