Building Trust as a Manager!

September 17, 2018

Managers have to build trust with their team! I came across some tips I thought were very good and wanted to share the information?

  1. Be humble; not charismatic. It is natural that we are attracted to people whom we perceive to be inspiring, fun, and engaging. It makes sense that you need a little charisma or pizzazz to stand out from others and get noticed. Charisma can also be useful for engaging and inspiring others towards the organizational mission. However, too much of this may be a bad thing in the eyes of your team members. Unchecked charisma will lead to a reputation of self-absorption and self-promotion. When team members get the sense that you are focused on your own concerns and ideas, they feel unsupported. The team may start to worry that you will no longer do what is best for the team or organization, and that you will instead do what is best for your own agenda.
  1. Be steady and dependable; it will get you further. While you may have been noticed and promoted based on your charisma, being reliable, rule-following, and responsible is more important for your team. As a leader, you have a tremendous amount of autonomy and decision-making power. If we are to entrust our leaders with such power, we need to be confident in their ability to remain true to their word and to do what’s right for the organization. Showing your team that you exercise caution, take calculated risks, and will adhere to organizational principles will go a long way toward gaining their trust.
  1. Remember that modesty is the best policy. At times, we may all enjoy working in an environment that is less formal, or working for a boss who knows how to keep things light-hearted. However, there is still a degree of responsibility and professionalism that people come to expect from those in charge. Trying to be liked and known as “the fun boss” can tarnish your reputation in the long run. It’s OK to stay out of the limelight and keep some space between you and your team. It sends signals that you are there for their professional benefit and that they can rely on you when needed.
  1. Balance analysis with action. Although people appreciate a degree of logic and rationality in the decision-making process, be careful to not get so focused on data and analysis that you forget the larger context or the impact of your decisions. Spending too much time analyzing data can hold you back from making important decisions, especially in high-pressure situations that call for quick action. The data may indicate the best course of action for the bottom line, but this may not be the best decision for the broader team or relevant stakeholders. Leadership must be able to make a decision and take corrective action quickly, even if it initially hurts the bottom line.
  1. Be vigilant; vulnerability increases over time. Learning and adjusting to a new role, especially a high-visibility leadership role, can take some time. It’s during the first few months in a new role that we usually spend more time observing what’s going on around us. We also tend to be more mindful of our interactions with others and may spend more time managing the impressions we make on others. Over time, we become more comfortable in our surroundings and we stop paying attention to our reputations. It’s usually after the six-month mark where we see an increased risk of our dark-side tendencies impeding our success or derailing our careers. Keep your guard up, stay vigilant, and continually seek feedback.

The personality characteristics that will get you chosen as a leader are not always the same as the ones that will make you effective in that role. Spending too much time trying to get noticed or having a “win at all costs” mentality to get ahead can put you (and your team) at a higher risk of engaging in unethical behavior. Having awareness of your surroundings and an understanding of the ways you influence your team will help to keep yourself (and your team) on track.

Very shortly we will be offering a “Leadership Conference” which will offer six different topics for the day. Attendees will have an option for half day or full day participation. Information will be sent within the week.



Polygraph Testing: The Do’s and Don’ts!

September 11, 2018

We get a fair amount of calls regarding whether or not an employer can conduct polygraph tests on employees. More recently, lie detector tests, have been all over the news. The federal law that regulates their use in the workplace is the “Employee Polygraph Protection Act of 1988”.

For private-sector employers the EPPA imposes strict prohibitions on the use of any device to render a diagnostic opinion as to the honesty or dishonesty of an individual.

It prohibits employers from:

  • Requiring, requesting, suggesting, or causing an employee or prospective employee to take or submit to any lie detector test.
  • Using, accepting, referring to, or inquiring about the results of any lie detector test of an employee or prospective employee.
  • Discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against an employee or prospective employee for refusing to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding, or for exercising any rights afforded by the EPPA.

Despite these strict prohibitions, there are limited exceptions when an employer can administer a polygraph test (but not other forms of lie detector tests).

One exception covers prospective employees of armored car and other similar security companies. Another covers prospective employees of companies that manufacture controlled substances.

Of more general application to most employers, the third exception covers employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation. Thus, an employer who reasonably believes that an employee has stolen is able to administer a polygraph to confirm the employee’s culpability.

Even if this exception applies, employers cannot use polygraphs carte blanche. There are certain key limits on their administration:

  • Prior to the polygraph examination, the employer must provide to the to-be-examined employee a written notice
    • explaining the employee’s rights and the limitations imposed, including the prohibited areas of questioning, restrictions on the use of test results, and the employee’s right to file a complaint with the Department of Labor alleging violations of EPPA;
    • explaining the specific incident or activity being investigated and the basis for the employer’s reasonable suspicion of the employee’s involvement;
    • reasonably describing the date, time, and place of the examination and the employee’s right to consult with legal counsel or an employee representative before each phase of the test; and
    • describing the nature and characteristics of the polygraph instrument and examination.
  • The employee can refuse to take a test, terminate a test at any time, or decline to take a test because of a medical condition.
  • The results of a test alone cannot be disclosed to anyone other than the employer or employee without their consent.
  • The polygraph examiner must be licensed, and bonded or insured. Also, the examination is subject to strict conduct standards.

Employers that violate the EPPA are subject to a civil money penalty of $20,521 per violation, in addition to legal and equitable relief such as lost wages and reinstatement, and, in the case of a private civil lawsuit, reasonable costs and attorneys’ fees.

Polygraph examinations provide employers a powerful tool to confirm and confront employee certain limited employee issues. Employers must carefully follow the EPPA’s requirements so that a slam dunk termination does not turn into a sure-fire lawsuit for the employee.

There it is!

Court Says Profanity “May Not Necessarily Create a Hostile Work Environment!”

September 4, 2018

Over the years that I have facilitated sexual harassment seminars, I have been asked whether or not profanity  in the workplace creates a hostile work environment.  First, let’s be clear, in my opinion; “There is no room for such unprofessional behavior. in the business setting.”  Ok, my opinion is one thing but  how do the courts view it? Does such language create a “hostile work environment” under federal anti-discrimination law? Or, could that kind of language be protected speech”

One Court of Appeals differentiated between different types of profanity. Interesting thought, but let’s take a closer look at what the Court said.

“We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”

The court’s decision focused on the difference between profanity of the general type, which it calls “general, indiscriminate vulgarity” (presumably, words like “sh**”), and “gender-specific, derogatory comments made about women on account of their sex.”

The court said in that case, that there was ample evidence that, as one of two female workers, the Plaintiff overheard coworkers used such gender-specific language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Indeed, the court said that her male co-workers referred to individuals in the workplace as “bitch,” “f**king bitch,” “f**king whore,” “crack whore,” and “c**t.”

And thus begins a discussion of profanity that hasn’t often been seen in the court system.

[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “f**king” would contribute to a hostile work environment. “F**king” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “f**king” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “f**k” and “f**king” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….

The court then focused on the notion that what is important to decide if conduct is “severe or pervasive” to create a work environment is the entirety of the situation.

Words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “c**ts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

The court opined that “Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.”

But what if the workplace just had a lot of profanity you say?

Then, the court says that might not be enough. “If the environment portrayed by the Plaintiff had just involved a generally vulgar workplace whose indiscriminate insults and sexually-laden conversation did not focus on the gender of the victim, we would face a very different case. However, a substantial portion of the words and conduct alleged in this case may reasonably be read as gender-specific, derogatory, and humiliating.”

For employers, the case is a reminder than a hostile work environment need not have pornography in the workplace to satisfy the standard; words can be enough depending on the context and the pervasiveness of it.  Employers should be mindful that profanity in the workplace — particularly when it is sexually-laden and directed at or around others — can have serious legal ramifications.

One last point: The employer here argued that the environment existed before the employee joined too and that it was not, therefore, directed to the Plaintiff.  The court easily dismissed that argument.   Once the Plaintiff entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that the Plaintiff had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.”

Well, there it is! The question as been answered and clearly the Courts are not going to put up with language as noted above. Put out the policies regarding the use of such language and enforce them.


Tips to Avoid Employee & Outside Cyber Attacks!

August 27, 2018

Your employees are your company’s weakest link, and therefore, your greatest threat to suffering a cyber-attack and resulting data breach. While employee negligence (that is, employees not knowing or understanding how their actions risk your company’s data security) remains the biggest cyber risk, another is growing and also demands your attention—the malicious insider. In fact, one recent report stated; “malicious insiders are responsible for 27 percent of all cyber crimes.”

Believe it or not, there are actually organizations/hackers who recruit malicious actors. These cyber criminals recruit with the goal of finding insiders to steal data, make illegal trades, or otherwise generate profit. Advanced threat actors look for insiders to place malware within a business’ perimeter security.

There are three types of people who fall into the “insider” category. They are negligent employees who don’t practice good cyber hygiene, disgruntled employees with ill will, and malicious employees who join organizations with the intent to defraud them.
What is a company to do? For the negligent employees who don’t practice good cyber hygiene—training, training, and more cyber-training is the best way to go.

No amount of training, however, will stop a disgruntled employee with ill intent, or a malicious employee who joins to do harm.

These latter two categories need more specialized attention—an insider threat program. The Wall Street Journal explains:

Companies are increasingly building out cyber programs to protect themselves from their own employees.… Businesses … are taking advantage of systems … to find internal users who are accidentally exposing their company to hackers or malicious insiders attacking the company. These “systems,” however, can prove costly, especially for the small-business owner. While investment in a technological solution is one way to tackle this serious problem, it’s not the only way. Indeed, there is lots any company, of any size, with any amount of resources, can do to develop an insider threat program.

Aside from the expense of costly monitoring programs, what types of issues should employers include in an insider threat program? Here are seven suggestions:

  1. Heightened monitoring of high-risk employees, such as those who previously violated IT policies, those who seek access to non-job-related business information, and those who are, or are likely to be, disgruntled (i.e., employees who express job dissatisfaction, who are on a performance improvement plan, or who are pending termination).
  2. Deterrence controls, such as data loss prevention, data encryption, access management, endpoint security, mobile security, and cloud security.
  3. Detection controls, such as intrusion detection and prevention, log management, security information and event management, and predictive analytics.
  4. Inventories and audits for computers, mobile devices, and removable media (i.e., USB and external hard drives), both during employment and post-employment.
  5. Policies and programs that promote the resolution of employee grievances and protect whistleblowers.
  6. Pre-employment background checks to help screen out potential problem employees before they become problems.
  7. Termination processes that removes access as early as possible for a terminated employee.

No company can make itself bulletproof from a cyber-attack. Indeed, for all businesses, data breaches are a “when” issue, not an “if” issue. However, ignoring the serious threat insiders pose to your company’s cyber security will only serve to accelerate the “when.”

So, there it is! You can take this seriously or just ignore this potential problem The reality is this is a growing concern and I will be discussing this in detail on my LA Talk Radio show this coming Sunday at 3 pm PST.


Arbitration Agreements: All but Gone!

August 20, 2018

In its continuing, apparent quest to undermine federal law, the California legislature is moving to make it unlawful for employers to require applicants or employees to agree to resolve employment-related disputes by way of arbitration.  AB 3080 would add provisions to the California Fair Employment and Housing Act (FEHA) and to the California Labor Code making it unlawful for an employer to require an applicant, employee, or independent contractor to agree to waive any forum (i.e. court) for the resolution of a dispute arising under FEHA (discrimination, harassment, and retaliation) or the Labor Code (wages/wage statements/meal and rest breaks/working conditions).  The bill further specifies that an arbitration agreement is unlawful even if applicants or employees are permitted to opt out of the agreement.  In other words, even where an employee is permitted to opt out of the arbitration agreement, the agreement still will be deemed to have been forced on the employee as a condition of employment, and therefore, will be considered unlawful.

The problem with AB 3080, apart from the fact that it is horrible for California employers, is that it is plainly unconstitutional and preempted by the Federal Arbitration Act (FAA).  The California Legislature is on clear notice of this problem, too.  In the past, the California Legislature has adopted similar laws that have discriminated against arbitration agreements and the courts (including the United States Supreme Court) have refused to enforce these laws, finding them preempted by the FAA (which favors enforcement of arbitration agreements according to the terms agreed upon by the parties to the agreement and displaces state laws that discriminate against arbitration).

Business groups and employment lawyers alike, have explained to the Legislature that AB 3080, like preceding statutory efforts to preclude arbitration agreements, is unconstitutional and have urged that it not be passed.  Thus far, the Legislature appears unmoved.  AB 3080 was passed by the state Assembly, was passed out of committee in the Senate, and is now advancing to the floor of the Senate for a vote that will occur sometime between August 21-31.  Given the political makeup of the senate, it seems likely that the bill will be passed and presented to the Governor.  If signed into law, California employers will be left to foot the bill in court to litigate the invalidity of this clearly unconstitutional law.

In addition to its virtual ban on employment arbitration agreements, AB 3080 would also prohibit contractual provisions that prohibit an applicant, employee, or independent contractor from disclosing information pertaining to an incident of sexual harassment.  This would impact settlement of sexual harassment claims.  Employers will want to monitor the continued progression of AB 3080 as it pertains to this issue as well.

I will keep you posted. This is just another example of the insanity California employers have to face in order to do business in this state.


Reasonable Accommodation & Common Sense!

August 13, 2018

Let me ask you, “Would you rather spend seven figures to lose a lawsuit, or $1.69 to allow a diabetic employee to drink a bottle of orange juice?” This is where common sense must take over. This employer paid the price not understanding that a reasonable accommodation is just that—“reasonable!”

Linda Atkins, a former cashier at Dollar General, is a type II diabetic. She occasionally suffers from low blood sugar, to which she must quickly respond by consuming glucose to avoid the risk of seizing or passing out. When she asked her manager if she could keep orange juice at her register in case of an emergency, he refused, citing the store’s “Personal Appearance” policy (which prohibits employees from eating or drinking at registers).

In late 2011 and early 2012, Atkins suffered two hypoglycemic episodes. Because she worked alone and did not want to leave her register unattended, she took at bottle of orange juice from the store’s cooler and paid for it after the fact.

Shortly thereafter, a Dollar General Loss Prevention Manager audited the store to address employee theft and other merchandise “shrinkage” issues. Atkins admitted to drinking orange juice twice before paying for it because of a medical emergency. She was then fired for violating the employer’s “grazing” policy, which prohibits employees from consuming merchandise before paying for it.

The EEOC sued on behalf of Atkins, claiming that her ex-employer failed to reasonably accommodate her and discriminated against her because of her disability.

On appeal, the Court had little difficulty concluding that the jury correctly found in favor of Atkins on her reasonable accommodation claim:

When she asked her store manager if she could keep orange juice at her register because of her diabetic condition, the manager told her “it’s against company policy” and to “be careful of the cameras.” Once Atkins requested this reasonable accommodation, the employer had a duty to explore the nature of the employee’s limitations, if and how those limitations affected her work, and what types of accommodations could be made.… But that’s not what it did. The store manager categorically denied Atkins’ request, failed to explore any alternatives, and never relayed the matter to a superior.

And on her discrimination claim:

A company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him. Imagine a school that lacked an elevator to accommodate a teacher with mobility problems. It could not refuse to assign him to classrooms on the first floor, then turn around and fire him for being late to class after he took too long to climb the stairs between periods. In the same way, Atkins never would have had a reason to buy the store’s orange juice during a medical emergency if Dollar General had allowed her to keep her own orange juice at the register or worked with her to find another solution. This would have been a common sense approach.

This legal and common-sense error cost the employer a judgment of nearly $725,000 (which includes almost $450,000 in the claimant’s attorneys’ fees, and does not include what it paid its own legal team to fight this absurd fight). The bottle of OJ at issue was worth $1.69 (plus tax). Which is the better economic decision?

Come on people use you heads out there!


Court Awards Attorney Fees to the Employer Based on a Frivolous Claim!

August 6, 2018

Here is a decision that will hopefully deter frivolous lawsuits by former employees as well as plaintiff attorneys! As employers know, there is little disincentive for an employee to sue, because plaintiff-side lawyers represent them on a contingency fee basis and most claims are brought under statutes that allow an employee (but not an employer) who prevails to recover the attorneys’ fees incurred in the case.  However, it is important for employees to recognize that an employer may refuse to settle and may win at trial.  If the employer wins, the employer often has a statutory right to recover its costs of suit from the employee.  Depending on the extent and type of litigation, the employer’s recoverable costs could be in the tens of thousands of dollars.  In some instances, a prevailing employer also may recover its attorneys’ fees incurred to defend the unmeritorious case. Well, her is one time an employer fought back and the Court awarded them attorney fees to be paid by the former employee AND her attorney! Let’s look at the facts.

Sandra D’Amato Flores was a branch manager for Opus Bank who decided to jump on the bandwagon of employees suing their employers for often baseless wage and hour claims in California.  As is common in these wage and hour cases, Flores alleged that she was misclassified as an exempt employee and denied overtime compensation as a result.  She filed an individual lawsuit seeking unpaid wages from Opus.  Then, she separately filed a putative class action lawsuit on behalf of all of Opus Bank’s branch managers in California, alleging that the entire class of employees was misclassified and denied overtime compensation.  Flores’ counsel, eventually recognized that Flores had a conflict of interest in seeking to pursue her own individual lawsuit against the Bank while simultaneously seeking to represent a class of employees on similar claims in a separate case.  As such, her attorneys proposed substituting in a different, former branch manager to represent the class.  Unfortunately for Flores, the other former branch manager had signed a severance agreement releasing any and all claims, known or unknown, against Opus Bank in exchange for being provided severance benefits.  As a result, he rather obviously had no standing to pursue any claims against Opus Bank, either on his own behalf or on behalf of a class of employees.  However, Flores, through counsel, was unconvinced, and insisted on litigating the issue of whether the former branch manager’s severance agreement barred his claims.  This was not the wisest of decisions, given that the severance agreement had a provision entitling the prevailing party in any action to enforce the severance agreement to recover its attorneys’ fees.  Sure enough, the Los Angeles Superior Court agreed with Opus Bank that the severance agreement barred the former branch manager’s claims and awarded Opus Bank close to $55,000 in attorneys’ fees against the former branch manager and his attorneys.  The former branch manager, apparently unhappy with this outcome, sued his attorneys for malpractice. Now there’s retribution for you!

Meanwhile, Flores’ individual wage and hour claims went to trial. Opus’ defense was that Flores was properly classified as an exempt employee, due to the fact that she earned a salary well above the minimum required for exempt status and easily spent the majority of her time on exempt duties.  Indeed, Flores was responsible for managing a branch of the Bank (and at times, two branches), with ultimate supervisory responsibility over all branch employees and branch operations, and was responsible for representing Opus in the community and developing business for the Bank.  Following the bench trial, Judge Wiley found in favor of Opus Bank and issued judgment (as well as an award of costs) in favor of Opus.

Not to be deterred, Flores appealed the judgment following the bench trial against her, and also appealed the order enforcing the other former branch manager’s severance agreement, as well as the order awarding Opus Bank its attorneys’ fees incurred in enforcing the agreement.  Last week the Court of Appeal issued its opinions in favor of Opus Bank on all three appeals.  The Court held that the trial court’s judgment in favor of Opus Bank on Flores’ individual claims was supported by substantial evidence, and dismissed the other two appeals, agreeing with Opus that these appeals were procedurally defective because (1) Flores was attempting to appeal non-appealable, intermediate rulings of the trial court without any final judgment ever having been entered in the class action; (2) Flores did not have standing to appeal the order adjudicating her former colleague’s rights or awarding attorneys’ fees against him, and the former branch manager did not himself appeal these orders (no doubt because he did not want to risk being ordered to pay even more attorneys’ fees to Opus Bank for causing the Bank to incur fees to defend the appeals); and (3) Flores’ counsel did not file a valid notice of appeal on their own behalf in order to challenge the fee award issued jointly against them.  As such, the order awarding Opus Bank its attorneys’ fees against the plaintiff’s attorneys, Flores’ former branch manager colleague and also awarded its (Opus Bank) costs on appeal from Flores.

The takeaway here is that, contrary to popular thought, it does not always pay to sue.  In this case, the employee (and her counsel) have to pay.  Let this be a word of caution to other employees out there to think twice before carelessly pursuing unmeritorious claims against their employer.

This was a great decision for employers!