Friday, January 20, 2012

Is Your Boss a Psychopath?

A psychopath is like you, but with your ego tendencies magnified greatly and your virtues severely atrophied.  For example, your occasional selfishness in putting yourself before others is the central guiding rule of life for a psychopath.  On the other hand, your tendency toward empathy and compassion when another suffers is non-existent for a psychopath. 

Why don’t we see a psychopath coming down the tracks before he or she slams into us?  Psychopaths are way too clever to be so obvious.  They do not play BY the rules; rather they “play the rules.”  That is, they know the advantage of appearing to be socially sensitive in order to manipulate people.  The truth is that they could care less about you.  It truly is “all about them.” 

What does it feel to have an encounter with a psychopath?  While the encounter may initially seem warm and charming, the longer-term picture will eventually emerge:  you’ve been used and abused.  You realize you were manipulated in some manner, and the psychopath had no care for you or your feelings whatever. 

If this behavior sounds narcissistic, it is, and psychopathology is a subset of narcissism.  The psychopath “kicks it up a notch” when it comes to narcissism.  A psychopath is completely without feeling for others, believes the rules don’t apply to them, and will engage in lying and cheating without conscience to get what they want.  People are objects to be manipulated.  They have highly skilled manipulative skills, including charm and faked emotions. 

If you thought psychopaths were all criminals, you would be wrong.  Most are not.  Most operate below the level of outright crime, but they still are poison to social relations, both at home and in the workplace.  If they manage a work unit, you will see the damage eventually:  distrust, negativity, poor morale, high levels of stress and depression, poor teamwork, and high levels of fear.  A psychopath can be identified also by several workplace characteristics:  they steal your ideas, take credit for your successes without recognizing you, blame you for their failures, and lie about their true motives and actions. 

It takes considerable opportunity and time to identify a psychopath because they are so adept at “blending in” to “normal” social behaviors.  But time is not on their side.  Psychopaths leave a wake of destruction behind them.  The problem in identification of a psychopathic boss in the present economy is that the opportunity to observe and track is lacking.  Employees are much more likely to change positions and companies every few years now.  Also, in a time of downsizing and general fear of lay-offs, the cold, calculating and manipulative personality type actually may be seen as an asset in making “hard decisions” and “getting the most” out of a decimated work force.  Psychopaths are unencumbered by feelings when cutting people and costs.  The psychopath sees the power to fire or lay-off as another weapon of manipulation.

Of course, there is no scientific tracking of psychopaths in the workplace.  Bernie Madoff was a charismatic charmer who inspired high levels of trust. He also had psychopathic tendencies.  He believed in his own grandiose statements of financial prowess, and he was willing to take extraordinary risks with other people’s lives and money.  He probably never lost a night’s sleep worrying about his victims. 

British researcher Clive Boddy and Canadian psychologist Robert Hare have written about the successful corporate psychopath.  They identify an increasing number of psychopathic personalities rising to positions of senior management.  In a 2010 paper they estimated that the percentage of such senior level management who were diagnosable as psychopaths was 4%.  The average in the general population is 1%. [“Corporate Psychopaths Theory of the Global Financial Crisis”—2010 Journal of Business Ethics].  Why do psychopaths seem 4 times more likely to occupy the corner office in a work environment?  The answer is the “Trojan horse” principle:  Coming in, they look quite attractive.  Over time, the poison within spills out into the work force, causing mayhem. By the time they are “found out,” they have eliminated or demoralized many of the emotionally healthy, and positive personalities that they oversee.    

Companies that have strong values and practice decency in work relations are like healthy individuals:  they tend to attract what is good and to avoid or expel what is bad.  Dysfunctional individuals, and companies, of course, practice an opposite behavior pattern.  Denial is the hallmark of the dysfunctional organization.  “We really aren’t becoming irrelevant to the emerging new market” is an organizational idea, for example, that leads to bankruptcy.  Likewise, in work relations, the failure of trained Human Resources personnel to see that a senior manager is a major destructive force is a form of organizational denial.  Intervening to cleanse the system of such poison requires courage and clarity.  “Blowing the whistle” is of course more difficult if the psychopath is a CEO or Senior Vice President.  Many times, good people simply leave, and the bleeding continues. 

This article is like a flare shot into the night, in the hope it will bring some focus and resolve to an individual reader needing to make a decision about how to respond to a “successful corporate psychopath.” 


[This article was inspired primarily by a CNN piece by Kevin Voight, Jan. 20, 2012:  “Bad Bosses:  The Psycho-path to Success?”]


Wednesday, January 18, 2012

Baby Bonding Rights--Dad's Have Rights Too!

Many people understand that the Family Medical Leave Act [FMLA] (and its equivalent California Family Rights Act [CFRA]) provide 12 weeks of leave because of a serious medical condition of an employee or family member.  But not often discussed, and perhaps not as often used, is the "baby bonding" portion of the medical leave law.  The CFRA and FMLA allow a father, for example, to take "medical leave" to bond with his newborn.  This leave right would apply even if the mother giving birth fully recovers and is available to stay with a healthy infant.  The "baby bonding" time may be taken intermittently, and may be taken anytime within one year of the baby's birth.  

Dads simply need to realize that "baby bonding" is both a great opportunity for them to experience those precious days that will never return.  The law protects dads equally with moms when it comes to bonding.  But if mom has a particularly tough recovery following delivery, she may obtain the additional protection of pregancy leave.  

A woman's “Baby bonding leave” may be taken immediately following a pregnancy disability leave or at any time within 12 months of the baby’s birth. Theoretically, if an employee has a difficult pregnancy, she may be entitled to up to four months of Pregnancy Disability Leave (“PDL”), then an additional 12 weeks of “baby bonding” leave once she recovers from her pregnancy-related disability. In other words, a women disabled by pregnancy who then gives birth may take up to seven consecutive months of job-protected leave. 

Employers may ask for a medical certification from a healthcare provider to verify your need for CFRA/FMLA leave; however, under CFRA (unlike under federal law) employers may not ask for the diagnosis, treatment, or other “medical facts” supporting your need for leave. If a healthcare provider’s certification states that the employee has a “serious health condition” as defined by CFRA, and also states the date of onset and probable duration of the condition, the employer cannot ask for any additional information.

When Does an Employee Lose His Right to Privacy of Mobile Phone Calls?

Employees seeking privacy in the use of smart phones and laptops at work are advised to use only their own equipment and to pay their own usage bills.  If the phone is provided by the employer and the account paid by the employer, the likelihood of a court finding no legal right of privacy is high.  If the employer provides the phone, pays the bill, and issues a clear written policy that all information on or through the phone is subject to company inspection, then it is virtually certain that personal use of the device will be without privacy protection.     Holmes v. Petrovich Dev. Co. (2011) 191 Cal.App.4th 1047.

The situation is less clear where the phone is owned by the employee, but is used for both personal and business purposes, and the employer reimburses the employee all or part of the bill.   In the absence of an employer’s required privacy waiver, I do not believe that paying for business calls entitles the employer full access to an employee’s private mobile phone communications.  However, there is nothing that prevents an employee from knowingly waiving his privacy interests in mobile phone data stored on the phone.  If the employee signs an acknowledgement and waiver of such privacy rights after being informed of Company policy, potentially everything on the phone becomes accessible to employer inspection.  Employees therefore should take seriously any such waivers and acknowledgments they may be required to sign as a condition of receiving payment of the mobile phone bills.  TGB Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 433. 

But even in the face of a broad waiver of privacy rights, I question the validity of such waivers if they are obtained as conditions of receiving reimbursement for the costs of business calls made on employee-owned mobile devices.  The duty to reimburse employee costs is statutory and unconditional and is itself a matter of “public policy” under Labor Code Section 2802.   The more reasoned approach is that the employer is to be restricted in viewing data that pertains only to company business.   

What about the situation however where  the employer has no express policy concerning privacy of mobile phone data, but reimburses the employee either a fixed amount or an “actual cost” amount for business related phone calls on the employee’s mobile phone?  Assume further of course, that the employee uses the phone for both personal and business calls, and perhaps even has multiple applications on the phone which are for his personal use only.  These apps can include abundant “private” information, such as journal entries, GPS tracking histories, music and photos.  In my opinion, the employer has no right to seize the phone, and no right to seize the data on the phone.  At best, the employer might succeed in obtaining a subpoena for the business data only, or reasonably require the employee as a condition of continuing employment, to disclose only the business call or business app data. 

 The U.S. Supreme Court in City of Ontario v. Quon (2010) 130 S. Ct. 2619, held against employee ‘s claim of privacy rights in that case, but also declined to make a blanket rule for when data was without privacy protection on employer issued digital communications equipment. In Quon, a public employer issued mobile devices to its officers and paid the full cost of the devices.   The police department wanted to determine if the usage plan they had selected was too low, after incurring overage charges under their current plans.  The service provider provided the Department with transcripts of usage.  The Department discovered Quon had used the device for personal sexually explicit text messaging, and disciplined him.  The Court assumed Quon had a reasonable privacy interest in the messages (without having to address the issue head on), but also held that the facts of the situation justified the search of the text messages as part of a reasonable business function.  In skirting the privacy expectation issue, the court wrote that the technology of mobile communication devices was advancing so quickly that a blanket privacy rule would be premature.

Where does that leave us?  Employees still have privacy rights, and merely that they use a personal communication device to sometimes conduct business does not open the door for employer inspection of all data on the phone.  Even if an employer required an employee to waive privacy rights to private communications on the employee’s own device, the employee’s resistance to such a demand would likely be justified, and if the employer fired the employee for his resistance, the employer would be liable for “wrongful termination in violation of public policy.”  The “public policy” is found in both the U.S. and California Constitutions guaranteeing the right of personal privacy.