Attitude Problem? Deal with it!

Guest Post by Joe Jotkowitz

How many of us have had employees that could have been described as "having an attitude problem?" How many of us work with people with an attitude problem? Heck, how many of us have an attitude? However, to coach someone on her attitude is usually ineffective and increases the level of confrontation, hostility, and defensiveness.

Is attitude coachable? No, however the behaviors that lead to the perception of an attitude problem are coachable.

Too many times on performance reviews or evaluations, I've seen the phrases:
  • "has an attitude problem"
  • "not a team player"
  • "just not a fit for this environment"
  • "doesn't possess the right personality for this position"
These phrases have the potential to get you in trouble with the law because they can be interpreted in a so many different ways, and they usually don't produce the change in behavior you are seeking. To discuss someone's attitude or personality as feedback tends to spark an emotional response. People take these terms personally. They feel as if you're attacking their personhood as opposed to giving them feedback on their performance. So, that's the strategy to use, focus on performance.

If you perceive some to have an "attitude" as it where, ask yourself, "What is he doing to come across that way?" In other words, "What are the behaviors?" Perhaps he's interrupting people...; or rolling his eyes...; or using negative language such as "no" and "never" when you ask for his opinion...; or perhaps he just doesn't execute tasks that are a part of his job description. These are coachable items. These are behaviors.

One of the techniques you can use to think through someone's "attitude" or "not a team player" feedback, is to ask yourself, "What did I observe." In other words, it has to be something an employee did or did not do. These answers will fall into one of four categories:
  1. Look: How did he look? (e.g., rolling his eyes)
  2. Sound: How did he sound? (e.g., he interrupted people)
  3. Say: What did he say? (e.g., using "no" and "never" when requests are made)
  4. Did: What did he do? (e.g., not performing the duties outlined in the job description)
When giving feedback for performance reviews, be sure to focus on the performance not the person. This diffuses the potential for conflict and achieves a much more productive result. It's all about behaviors.

Joe founded The Executive Advisory, a communications consulting firm, and currently serves as Managing Director.

The Buck Stops There: California Employees May Not Transfer Their Standing as Class Representatives to Third Parties

The Second District of the California Court of Appeal recently handed a significant defeat to a California union by barring it from acting as class representative in a lawsuit seeking to enforce employee claims under the Labor Code.

In Amalgamated Transit Union, Local 1756 v. Superior Court, the Union had persuaded a number of its members to execute agreements that assigned their claims for alleged meal and rest break penalties to the union. These agreements also purported to transfer the employee's right to act as a class representative to the Union. Relying on these assignment agreements, the Union then filed a class action lawsuit, seeking over $10 million in alleged meal and rest break penalties from the employer on behalf of an entire class of workers.

The Court first noted that employees may lawfully assign their individual claims for damages to others. Such damages claims are a form of transferable property just like any debt. Thus, the Union did have standing to sue to collect any unpaid wages or penalties owed to the individuals who had expressly assigned their claims to the Union.

The Court held, however, that the Union did not have standing to act as a class representative. In reaching this conclusion, the Court held that standing to act as a legal representative for others -- whether in a class action or an uncertified "private attorney general" action -- is not a form of transferable property right. As the Court explained, "because the purported assignor (the employee) although authorized by [the law] to bring an action behalf of others, has no ownership interest in the causes of action owned by others, the employee necessarily has no right to transfer those causes of action to a third party." Thus, the right to act as a class representative could not be transferred to the Union.

If the Court had not ruled as it did, employees would have been permitted to sell their status as potential class representatives to the highest bidder. Indeed, the buyers of these rights could presumably have re-sold them like some form of tradable commodity, thereby spawning a whole new source of class action plaintiffs. The Amalgamated Transit ruling is no doubt especially disappointing to unions who have recently been looking for ways to exploit their access to their members in order to gain a share of the lucrative California wage and hour class action market.

Cal-OSHA and Key Occupational Safety Requirements in California

Ensuring health and safety in the workplace is California's Occupational Safety and Health Administration's primary goal (Cal-OSHA). In order to achieve this goal, Cal-OSHA has certain powers including the ability to conduct random inspections, issue citations, and assess penalties against an employer it finds has jeopardized the health and safety of the workplace. To avoid any citations or penalties, California employers must comply with all safety regulations, including the following key safety requirements:

1.Maintain a written Injury and Illness Prevention Program ("IIPP") and make sure the IIPP is distributed to all employees or displayed in a location for employees to easily view/access. If there are hazardous chemicals in the workplace, then the IIPP must contain a written hazard communication program as well, unless the employer already has a separate written hazard communication program.

The IIPP cannot be general. Rather, it must address the specific safety issues in the particular workplace, and contain a discussion regarding at least the following elements: responsibility, compliance, communication, hazard assessment, accident/exposure investigation, hazard correction, training and instruction, and recordkeeping. A common safety hazard for all restaurants that should be addressed in an IIPP is the threat of violence, such as a robbery, and an emergency action plan in case of an emergency. For more information regarding how to develop an IIPP, including a written hazard communication program, refer to Cal-OSHA's publications that are located at http://www.dir.ca.gov/dosh/PubOrder.asp.

2.Inspect the workplace and identify all potential hazards employees may face while on the job. Use color codes, posters, labels, or other signs to warn employees of any potential hazards. Make sure to notify and train all employees regarding these potential hazards and document such training.

3.Establish or update standard safety operating procedures in the workplace so that employees can follow those procedures to maintain health and safety. Make sure employees are following these operating procedures, including always using the appropriate tools and properly operating equipment.

4.Immediately remove or correct any hazardous condition in the workplace that may result in a serious injury to an employee. Cal-OSHA assesses penalties against an employer based, in part, upon the severity of the safety violation, such as an employer's failure to abate a known hazardous condition.

5.Immediately notify (within 8 hours) the nearest Cal-OSHA office of any serious injury or fatality that occurs on the job. A serious injury is considered an injury that requires the employee to be hospitalized for more than 24 hours other than for medical observation, or an injury in which part of the body is lost or permanently disfigured. To find the nearest Cal-OSHA office, refer to Cal-OSHA's website at http://www.dir.ca.gov/dosh/DistrictOffices.htm.

6.If you have 11 or more employees at anytime during the calendar year, maintain accurate records of any work-related injuries or illness, including Cal-OSHA Form 300, Log of Work-Related Injuries and Illnesses, and Form 300A, a Summary of the Work-Related Injuries and Illnesses for the year. Employers must post the Summary for employees to review. Employees can also request to view the Log of Work-Related Injuries and Illnesses.

The above safety requirements only address a portion of the regulations employers are required to follow in order to maintain a safe and healthful workplace. If you have any questions or concerns about any health or safety issue in the workplace, Cal-OSHA provides employers with free consultation services and will even assist the employer in identifying hazards in the workplace. For more information regarding such assistance, you can access Cal-OSHA's website at http://www.dir.ca.gov/dosh/consultation.html.

Nancy Berner of CDF To Appear on “Your Legal Rights” Radio Program

Nancy Berner will appear on the PBS radio program "Your Legal Rights" from 7:30 to 8:30 p.m., February 21, to discuss the implications of San Francisco's Paid Sick Leave Law on employers throughout the state. The show is broadcast live in the Bay Area at 91.7 FM, KALW, and online at www.kalw.org. It is rebroadcast at other times on other California stations, so check local listings. We will be receiving a copy of the program, and will update the blog with a link to the show when it becomes available.

California Comes to Texas: Pressing Issues in Managing the California Workforce - Westin Galleria, Dallas, TX

On March 27, 2007, join experienced California-based employment law specialists from Carothers DiSante & Freudenberger LLP for a complimentary seminar addressing the most pressing issues facing Texas-based companies with California employees.

The event will take place at The Westin Galleria in Dallas, Texas.
Registration is from 2:45 p.m. to 3:00 p.m.
The program will run from 3:00 p.m. to 5:45 p.m.
After the program please join the presenters for a selection of fine California wines and hor d'ouerves.

Topics of discussion will include:

  • California Wage/Hour Class Action Litigation Update
  • California Jury Trial Practice
  • Top 5 Pitfalls Made by California Employers
  • Managing Leaves of Absence
  • Key California Employment Law Developments for 2007 - What You Need to Know and How It Will Affect You

Click here for more information and how to register.

Oral Arguments Set In Murphy v. Kenneth Cole

The California Supreme Court has set oral arguments in Murphy v. Kenneth Cole Productions to take place on Wednesday, March 7, 2007, at 1:30 p.m., in San Francisco. The Supreme Court's ruling will (hopefully) settle the issue about whether Labor Code AASUNsect; 226.7 penalties for meal and rest break violations are subject to a three year or a one year statute of limitations.

Click here, here, and here for prior posts regarding Murphy and related cases.

The Hazards of Dukes: Ninth Circuit Certifies Largest-Ever Discrimination Class Action Lawsuit against Wal-Mart

The Ninth Circuit Court of Appeals recently handed down its much-anticipated opinion in Dukes v. Wal-Mart. In a 2-1 decision, the majority of the panel approved the lower court's decision to certify a sex discrimination class action by 1.5 million women against Wal-Mart.

The certified class included all current and former female employees who worked for Wal-Mart during the relevant statute of limitations. Neither the lower court nor the Ninth Circuit made any attempt to address whether these discrimination claims might have merit. Rather, the only issue at stake was purely procedural -- i.e., whether the case could be tried as a single class action despite the different facts involved in proving whether each particular woman was truly a victim of discrimination.
Under Rule 23 of the Federal Rules of Civil Procedure, class certification depends mainly on whether the "common issues" shared by the plaintiffs outweigh the differences in their respective cases. But the majority opinion in Dukes appears to significantly lower the standard of "commonality" necessary to obtain class certification for large and diverse groups of plaintiffs.

For example, to the extent that Wal-Mart promulgated centralized personnel policies and procedures, the majority found that these supported a finding of "commonality." Yet, to the extent Wal-Mart lacked such centrally imposed policies, the majority held that that, too, was evidence of "commonality" -- because it demonstrated a "common" policy of permitting subjective decisions by local managers. Predictably, Wal-Mart had no way of escaping this logical Catch-22.

In his dissenting opinion, Judge Kleinfeld issued a sharp criticism of the majority's decision. As Judge Kleinfeld wrote:

This class certification violates the requirements of Rule 23. It threatens the rights of women injured by sex discrimination. And it threatens Wal-Mart's rights. The district court's formula approach to dividing up punitive damages and back pay means that women injured by sex discrimination will have to share any recovery with women who were not. Women who were fired or not promoted for good reasons will take money from Wal-Mart they do not deserve, and get reinstated or promoted as well. This is "rough justice" indeed. "Rough," anyway. Since when were the district courts converted into administrative agencies and empowered to ignore individual justice?

The Ninth Circuit may decide to grant en banc review. Moreover, the United States Supreme Court will no doubt have an opportunity to weigh in by granting certiori at the conclusion of the Circuit Court proceedings. Given the size and scope of the issues involved and Wal-Mart's demonstrated preference for fighting rather than settling high-profile litigation, this will probably not be the last word on the Dukes case.

LAX Living Wage Ordinance Rescinded, But Businesses Still Need to Be Aware

On January 31, Los Angeles City Council unanimously rescinded the ordinance that would have applied the city's living wage ordinance to a select few hotels located on Century Boulevard near LAX under terms of a compromise with city business leaders. However, many questions still exist as to the final terms of the compromise, which includes the drafting of a new ordinance in attempts to assuage some of the local businesses' primary concerns with the rescinded ordinance. However, business leaders are just realizing that the terms agreed to under a new ordinance do nothing to protect businesses against the concerns they had under the rescinded ordinance.

First, the new ordinance increases the workers' pay at the dozen or so hotels targeted by the original ordinance to $9.50 an hour upon the passage of the ordinance, and on July 1, 2007, this amount increases to $10.64. Click here for an article in the Los Angeles Business Journal.

Second, the compromise proposes a system for determining whether the living wage could expand in the future based upon the economic effects of such an expansion. The economic effects would be determined by two economists, one selected by the chamber of commerce, and the other selected by the Los Angeles County of Federation of Labor. The primary concern for Los Angeles businesses was that the original rational for extending the living wage ordinance to the hotels on Century Boulevard could be used to extend the living wage to all employers operating in Los Angeles. It appears that the compromise does nothing, or very little, to actually prevent this slippery slope.

Los Angeles business leaders still need to be vigilant as there will be many more battles in this ongoing effort to increase the minimum wage of workers in Los Angeles under the guise of a living wage.

California Court Creates New Cause of Action for “Negligent Failure To Prevent Retaliation.”

In Taylor v. Los Angeles Dept. of Water and Power, 144 Cal.App.4th 1216 (2006), the Court of Appeal recently handed plaintiffs lawyers a favorable holdings for use against California employers in retaliation lawsuits.

Discrimination, Retaliation and Harassment.
By way of background, the California Fair Employment and Housing Act ("FEHA"), generally creates three distinct causes of action for discrimination, retaliation and harassment. A discrimination claim arises where an adverse employment action such as termination or demotion is allegedly based the employee's race, sex or other protected characteristics. An harassment claim exists where the employee is subjected to a hostile work environments based on a "severe or pervasive" pattern of offensive actions such as verbal insults or unwanted sexual propositions. Finally, a retaliation claim may exists where an employee is subjected to an adverse employment action because of making protected complaints about discrimination or other illegal conduct.

Each of these three major FEHA claims has distinct elements of liability and distinct remedies. Courts have often struggled, however, in defining the precise boundary lines between these different claims. The Taylor case involved the boundary between retaliation and the other claims.

Retaliation: The Same as Discrimination, Except When Its Different.
Probably the most significant aspect of the Taylor decision is its creation of a new cause of action for "negligent failure to prevent retaliation." The FEHA already contains an express provision stating that employers must "take all reasonable steps necessary to prevent discrimination and harassment." In drafting this section, the Legislature elected to omit any reference to "retaliation" claims. Despite this conspicuous omission, the Taylor Court decided to extend the reach of this statutory provision to also include retaliation claims, reasoning that "retaliation is a form of discrimination." Id. at 1240.

In reaching this result, the Court's opinion is hardly a model of consistency. For example, the Court based its creation of this new "negligent retaliation" claim on its characterization that retaliation claims were equivalent to discrimination claims. Yet, elsewhere in the same opinion, the Court specifically holds that retaliation is different from discrimination when it comes to imposing personal liability on supervisors. Thus, unlike a mere discrimination claim, the Taylor Court found that that "a supervisor may be held personally liable for retaliation under the FEHA." Id. at 1237.

In short, retaliation may be treated as either the same or different from discrimination, depending on which characterization provides the most "liberal construction" for plaintiffs in suing their employers. Id. at 1240.

What Does the Decision Mean For Employers and Supervisors?
Once an employee lodges a potentially protected complaint, any subsequent changes in his job assignments or status may be cited as a form of alleged "retaliation." Employers are now required to "take all reasonable steps" to train and supervise their personnel in order to prevent retaliation against such protected employees. Supervisors should be especially motivated to avoid retaliation claims because they may be held personally liable for damages in any retaliation lawsuit under the FEHA.

Thus, employers and supervisors need to be especially vigilant whenever an employee has lodged an arguably protected complaint. Performance issues should be carefully documented and, in an abundance of caution, changes in a complaining employee's job status should be reviewed and approved by Human Resources or some higher level of management.

Office of Administrative Law Disapproves FEHC Regulations on AB 1825

On Tuesday, January 30, the Office of Administrative Law ("OAL") informed the Fair Employment Housing Commission ("FEHC") that it would not approve the regulations submitted by FEHC on December 14, 2006 regarding the requirements of AB 1825, the existing law that requires California employers with 50 or more employees to provide sexual harassment training to all supervisory employees every two years. The OAL disapproved the regulations as lacking sufficient clarity and because of procedural mistakes made by FEHC in propounding the regulations. Under the California Administrative Procedures Act (Gov. Code 11349.4) the agency has 120 days to correct the errors and resubmit the regulations to OAL for further review.

From a practical point of view, this is unlikely to have a significant impact on clients. The proposed regulations contain a form of grandfather clause saying, in effect, that any business that has made a good-faith effort to comply with the statute as of the effective date of the regulation (whenever that turns out to be) will be deemed to be in compliance with the regulation. Clients who are familiar with the requirements of regulation, and can document their efforts at compliance will have little to worry about.

Editor
Cal Labor Law

Robin E. Largent is a Partner in CDF’s Sacramento office and may be reached at 916.361.0991 or rlargent@cdflaborlaw.com BIO »

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