Chapter Five Rights and Obligations of Employers and Employees

1. Chapter FiveRights and Obligations of Employers and Employees Ethical Theory and Business, 6th Edition Tom L. Beauchamp & Norman E. Bowie

2. Objectives • After studying this chapter the student should be able to: • Examine the advantages and disadvantages of the employment-at-will doctrine for both the employer and employee. • Explain the concept of due process. • Discern the difference between public sector and private sector employees. • Describe the concept of right to privacy.

3. Objectives • Discuss the arguments supporting or opposing employee drug testing. • Define the term discriminatory genetic screening. • Discuss the arguments supporting or opposing genetic screening. • Describe the ethical dilemmas genetic screening creates for insurance companies. • Argue the advantages and disadvantages of electronic performance monitoring (EPM) for both the employer and employee.

4. Objectives • Stress the importance of personal feedback in addition to the built-in feedback of the EPM system. • Describe the argument supporting or opposing whistle-blowing. • Contrast both sides of obligation of loyalty as it relates to whistle-blowing.

5. Overview • Employment-at-Will • Workplace Drug Testing • Genetics • Electronic Performance Monitoring • Whistle-blowing

6. Employment-at-Will

7. Employment-at-Will • “Employment at Will and Due Process” • Patricia H. Werhane & Tara J. Radin • The authors of this article argue in defense of due process and against EAW. • Employment-at-Will - The principle that an employer may hire, fire, demote, or promote an employee whenever the employer desires, in the absence of a specific contract or law.

8. Employment-at-Will • Due process • Public policy exception • Reasons used to justify employment-at-will • The proprietary rights of employers guarantee that they may employ or dismiss whomever and whenever they wish. • EAW defends employee and employer rights equally.

9. Employment-at-Will • In choosing to take a job, an employee knows he or she is an at-will employee. • Legislation and/or regulation of employment relationships further undermine an already overregulated economy. • Public/private distinction • Employees in the private sector of the economy tend to be regarded as at-will employees. • Employees in the public sector have guaranteed rights, including due process, and are protected from demotion, transfer, or firing without cause.

10. Richard A. Epstein • “In Defense of the Contract at Will” • Professor of Law, University of Chicago • The author of this article discusses how employment-at-will works to the mutual benefit of both parties. • Fairness of contract at will • Freedom of contract principle

11. Richard A. Epstein • The utility of contract at will • Monitoring behavior • Reputational losses • Risk diversification and imperfect information • Administrative costs • Distributional concerns

12. Workplace Drug Testing

13. Workplace Drug Testing • “Drug Testing in Employment” • Joseph DesJardins & Ronald Duska • The authors of this article argue against drug testing in that it violates the employee’s or applicant’s right to privacy. • Right to privacy involves a three-place relation between a person, some information, and another person.

14. Workplace Drug Testing • Job relevance arguments • Affects on job performance • Harm to employee, other employees, the employer, and consumers • Determining which jobs have a potential to cause harm • Potential for harm should be clear and present. • Test employees only when they show a potential to cause harm.

15. Workplace Drug Testing • Limitations on drug testing policies • Effectiveness of drug testing considerations • Does the testing help prevent harm? • Does the testing provide relevant knowledge? • Are there more effective methods for preventing harm? • Six testing possibilities • Testing prospective employees

16. Michael Cranford • “Drug Testing and the Right to Privacy: Arguing the Ethics of Workplace Drug Testing” • Completing a Ph.D. in Religion and Social Ethics, University of Southern California • Dissertation focus is on ethics and technology • The author of this article argues in favor of workplace drug testing.

17. Michael Cranford • Privacy and performance of contract • Privacy – An individual’s right to be let alone • A right to control information about themselves • Criteria for obtaining relevant information • Drug testing is not harmful or intrusive. • Drug testing is both efficient and specific. • Drug testing can be conducted in a way that guarantees a high degree of precision.

18. Michael Cranford • Questions of justification • Drug testing policy recommendations • Testing should focus on a specifically targeted group of employees. • When testing is indicated, it should not be announced ahead of time. • Employees who test positive for drug abuse should be permitted the opportunity to resolve their abusive tendencies and return to work without penalty or stigma.

19. Genetic Screening

20. Joseph Kupfer • “The Ethics of Genetic Screening in the Workplace” • Professor of Philosophy, Iowa State University • What is genetic screening? • Discriminatory genetic screening – A process used to exclude workers from jobs based on their genetic make-up.

21. Joseph Kupfer • Technical limitations • Has the gene been located or just simply correlated with other DNA material? • Is knowledge of other family members necessary to determine the presence of the affecting gene? • Causal limitations • Does the affecting gene require other genes to produce the disorder? • Does the gene cause the disorder with inevitability or just create a vulnerability to the disorder?

22. Joseph Kupfer • Privacy considerations • Control of information • Autonomy • Justice considerations • Genetic screening indicates merely a predisposition for a disorder • Not the inevitability of the onset of the disorder • Unjust to penalize someone when it is not known they will contract the disorder

23. Joseph Kupfer • Could be used to unjustly “weed out” people for employment, education, etc. • Could be used to deny certain types of benefits.

24. Genetics • “The Genetics Revolution, Economics, Ethics, and Insurance” • Patrick L. Brockett & E. Susan Tankersley • Human Genome Project – A 26-year, six-billion-dollar international science project designed to completely map the entire genetic structure of the human species.

25. Genetics • Ethical dilemmas for insurance companies • Unfair discrimination and insurance classification • Purpose of classification • Distinguishing between high- and low-risk individuals • Ethics of insuring by classification

26. Genetics • Employer health care insurance • Community rating – The employer is charged an amount per employee based on the average costs in the employer’s region. • Experience rating – The insurer charges different rates to different employers based upon the experience of the employees over a rolling average. • Self-insurance – The employer takes on the risks instead of the insurer.

27. Genetics • Recommendations to address genetic screening problems in the insurance industry • Let the insurance industry continue as usual with the current laws and encourage these companies to use all available information to decide whether or not to accept an individual as a possible risk. • Include passage of legislation which allows for some type of controlled discrimination, but which prohibits insurance companies from discrimination against individuals with specified genetic markers.

28. Genetics • National health care in which the government would insure everyone, and simply allow no discrimination to occur. • Genetic information for preventive health care

29. Electronic Performance Monitoring

30. Electronic Performance Monitoring • “Ethical Issues in Electronic Performance Monitoring (EPM)” • G. Stoney Alder • Management Professor, Western Illinois University • The author of this article argues that the difference between ethical or unethical electronic monitoring is found in the way the organization designs and implements the system.

31. Electronic Performance Monitoring • Arguments for EPM • Used to protect consumer and worker safety • Safeguard company assets • Increased productivity • Improved quality and service • Gives the ability to evaluate effectiveness • Decreased costs • Can be a good tool for employee coaching and training

32. Electronic Performance Monitoring • Arguments against EPM • Invasion of privacy • Increased job stress and health problems • Dehumanizing • Decreases the employee’s quality of work-life • Two way communication during the design and implementation phases is important.

33. Electronic Performance Monitoring • Rules for ethical monitoring • Involve those who will be subjected to monitoring in the system design. • Inform employees of monitoring practices. • Supplement electronic feedback with human interaction. • Make feedback supportive, non-punitive, and non-coercive.

34. Whistle-blowing

35. Ronald Duska • “Whistleblowing and Employee Loyalty” • Professor of Ethics, The American College • The author of this article argues that the employee does not have an obligation of loyalty to a company and that whistle-blowing is permissible, especially when a company is harming society.

36. Ronald Duska • When, if ever, is whistle-blowing permissible? • Purpose of whistle-blowing • Employee loyalty to the company v. company loyalty to the employee • 3 philosophical positions about loyalty • Idealists • Social atomists • Moderate position

37. Daryl Koehn • “Whistleblowing and Trust: Some Lessons from the ADM Scandal” • Cullen Chair of Business Ethics, University of St. Thomas in Houston • The author of this article focuses on whether whistle-blowing fosters or destroys personal, corporate, and public trust.

38. Daryl Koehn • Whistle-blowing – Persons who sound an alarm from within the very organization in which they work, aiming to spotlight neglect or abuses that threaten the public interest • Effects of whistle-blowing on trust • Reasons why an employee would consider whistle-blowing

39. Daryl Koehn • Whistle-blowing should be an option of last recourse • Companies and employees need to work together (two-way communication) building trust to avoid situations where employees feel whistle-blowing is the only option to address their concerns.