Employee Rights and Discipline The Challenges of Human Resources Management
Chapter ObjectivesAfter studying this chapter, you should be able to LEARNING OUTCOME 1 Explain the concepts of employee rights and employer responsibilities. Explain the concepts of employment-at-will, wrongful discharge, implied contract, and constructive discharge. Identify and explain what the privacy rights of employees are. Discuss the meaning of discipline and why managers cannot ignore disciplinary problems. Explain how to establish disciplinary policies and investigate disciplinary problems. Differentiate between the two approaches to disciplinary action. Identify the different types of alternative dispute resolution methods. Discuss the role of ethics in the management of human resources. LEARNING OUTCOME 2 LEARNING OUTCOME 3 LEARNING OUTCOME 4 LEARNING OUTCOME 5 LEARNING OUTCOME 6 LEARNING OUTCOME 7 LEARNING OUTCOME 8
Employee Rights and Privacy • Employee Rights • Various federal and state laws in protection of employment status guarantee fair treatment of employees by employers. • Employee Privacy Rights • Federal and state courts generally view the privacy rights of employees as minimal. • There is a lack of comprehensive and consistent body of privacy protection, whether from laws or from court decisions.
Employee Rights and Privacy (cont.) • Employer Responsibilities • Negligence • Is the failure to use a reasonable amount of care when such failure results in injury to another person. • Negligent hiring • Is a legal doctrine that places liability (duty of care) on the employer for actions of its employees during the course and scope of their employment. • Job Protection Rights • Psychological contract • Is the expectation of a fair exchange of employment obligations between an employee and employer
Employee Rights and Privacy (cont.) • Employment-at-Will Principle • The right of an employer to fire an employee without giving a reason and the right of an employee to quit when he or she chooses. • In 1908, Supreme Court upheld employment-at-will in Adair v United States. • Limitations on Employment-at-Will • Union collective bargaining agreements • Federal and state laws, court decisions, and administrative rulings • “Fear of firing”
Wrongful Discharge: Exceptions to the Employment-at-Will Doctrine • Violations of Public Policy • Wrongful discharge of an employee by an employer for refusal commit an act that to violates the law. • Implied Contract • Wrongful discharge contrary to an employer’s oral or written promises of continued employment. • Implied Covenant • Wrongful discharge for a lack of fair dealing on part of employer.
Whistle-Blowing • Whistle-Blowing • Complaints to governmental agencies by employees about their employers’ illegal or immoral acts or illegal practices • Laws Protecting Whistle-Blowers from Retaliation: • Sarbanes-Oxley (S-O) Act of 2002 protects publicly-traded company employees • Whistleblower Protection Act (WPA) protects federal employees. • Notification and Federal Employee Antidiscrimination and Retaliation Act (No Fear Act) of 2002 • False Claims Act (FCA)
Implied Contract • An implied contract is when a promise by the employer suggests some form of job security to the employee. • Implied contractual rights can be based on either oral or written statements made during the pre- employment process or subsequent to hiring.
Implied Contract (cont.) • Following are some examples of how an implied contract may become binding: • Telling employees their jobs are secure as long as they perform satisfactorily and are loyal to the organization • Stating in the employee handbook that employees will not be terminated without the right of defense or access to an appeal procedure • Urging an employee to leave another organization by promising higher wages and benefits, then reneging on those promises after the person has been hired
Explicit ContractsRestrictions Nondisclosure of Information Agreement Noncompete Agreement Intellectual Property Agreements Explicit ContractsMost Widely Used Restrictions Nonpiracy Agreements
Illegal Employee Dismissals • Constructive Discharge • An employee voluntarily terminates his or her employment because of harsh, unreasonable employment conditions placed on the individual by the employer. • Employers cannot accomplish covertly what they are prohibited by law from achieving overtly. • Courts have generally adopted a “reasonable person” standard for upholding constructive discharge claims.
Illegal Employee Dismissals (cont.) • Discharge as a Result of Retaliation • Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and other employment laws prohibit employers from retaliating against employees when exercising their rights under these statutes. • Proper handling of these employees involves: • Taking no adverse employment action against employees when they file discrimination charges. • Treating the employees consistently and objectively. • Harboring no animosity toward the employees when they file discrimination lawsuits.
Discharges and the WARN Act • Workers’ Adjustment Retraining and Notification Act (WARN) of 1989 • Requires organizations with more than 100 employees to give employees and their communities sixty days’ notice of any closure or layoff affecting fifty or more full-time employees. • Terminated employees must be notified individually in writing. • The act allows several exemptions, including “unforeseeable circumstances.”
Privacy Rights Employee Privacy versusEmployer Obligations • Substance Abuse and Drug Testing • Searches and Monitoring • Access to Personnel Files • E-mail and Voice Mail • Conduct Outside the Workplace • Genetic Testing
Substance Abuse and Drug Testing • Safety-Sensitive Jobs • Employees must submit to a drug test when “reasonable suspicion” for a drug test exists and the employer’s testing procedures are also reasonable. • Drug-Free Workplace Act (1988) requires employers to: • Issue a policy statement prohibiting drug usage. • Inform employees about the dangers of drugs. • List options available for drug counseling. • Notify the federal contracting agency of employees convicted of drug-related criminal offenses.
Electronic Surveillance • Camera Surveillance • Few federal laws protect workers from being watched • Phone Conversations and Text Communications • In general, employers have the right to monitor calls and text messages sent from their telecommunications devices, provided they do so for compelling business reasons and employees have been informed that their communications will be monitored. • E-Mail, Internet, and Computer Use • Employers can monitor what employees do online and fire or discipline them based on that information
Searches • The search policy should be clearly outlined in a firm’s employee handbook. The handbook should explain that searches will not be conducted without a compelling reason. • When possible, searches should be conducted in private. • The employer should attempt to obtain the employee’s consent prior to the search. • The search should be conducted in a humane and discreet manner to avoid infliction of emotional distress. • The penalty for refusing to consent to a search should be specified.
Access to Personnel Files • Employees generally have: • The right to know of the existence of one’s personnel file • The right to inspect one’s own personnel file • The right to correct inaccurate data in the file • Employers can: • Restrict access to information that could violate the privacy of others • Limit the employee to copies of documents that he or she has signed • Require that HR personnel, or a supervisor, be present while the employee views the documents
Off-Duty Conduct and Speech • Off-Duty Employee Conduct • Organizations that discipline employees for off-duty misconduct must establish a clear relationship between the misconduct and its negative effect on other employees or the organization. • Off-Duty Employee Speech • Some organizations have social networking and blogging policies that restrict employees from making disparaging remarks about their firms or its supervisors, or otherwise casting their organizations in a bad light. • Workplace Romances • Supervisor – subordinate relationships are of particular concern
The Results of Inaction • Reasons given by supervisors for their failure to impose a disciplinary penalty: • The supervisor failed to document earlier actions, so no record existed on which to base subsequent disciplinary action. • Supervisors believed they would receive little or no support from higher management for the disciplinary action. • The supervisor was uncertain of the facts underlying the situation requiring disciplinary action. • Failure by the supervisor to discipline employees in the past for a certain infraction caused the supervisor to forgo current disciplinary action in order to appear consistent. • The supervisor wanted to be seen as a likable person.
Setting Organizational Rules • The rules must be reasonable and relate to the safe and efficient operation of the organization. • The rules as well as the consequences for breaking them should be written down and widely disseminated to all employees. Neglecting to communicate the rules is a major reason disciplinary actions taken against employees are reversed. • The rules should be clearly explained. Employees are more likely to accept a rule if they understand the reason behind it. • Employees should sign a document stating that they have read and understand the organizational rules. • The rules should be reviewed periodically—perhaps annually—especially those rules critical to work success.
Discipline • Definitions of Discipline • Treatment that punishes. • Orderly behavior in an organizational setting. • Training that molds and strengthens desirable conduct or corrects undesirable conduct and develops self-control.
Documenting Misconduct • Date, time, and location of the incident(s) • Negative performance or behavior exhibited by the employee—the problem • Consequences of that action or behavior on the employee’s overall work performance and/or the operation of the employee’s work unit • Prior discussion(s) with the employee about the problem • Disciplinary action to be taken and specific improvement expected • Consequences if improvement is not made and a follow-up date • The employee’s reaction to the supervisor’s attempt to change behavior • The names of witnesses to the incident (if appropriate)
The Investigative Interview • Conduct of an Interview • Concentrate on how the offense violated the performance and behavior standards of the job. • Avoid getting into personalities or areas unrelated to job performance. • Give the employee must be given a full opportunity to explain his or her side of the issue. • NLRB v Weingarten,Inc. • The Supreme Court upheld an NLRB ruling in favor of the employee’s right to representation during an investigative interview in a unionized organization.
Approaches to Discipline • Progressive Discipline • When applying corrective measures by increasing degrees, always be sure that employees: • Know where they stand regarding offenses. • Know what improvement is expected of them. • Understand what happens next if improvement is not made. • Positive, or Non-punitive, Discipline • Discipline that focuses on the early correction of employee misconduct, with the employee taking total responsibility for correcting the problem.
Informing the Employee • Conducting a Discharge Meeting: • Come to the point within the first two or three minutes, and list in a logical order all reasons for the termination. • Be straightforward and firm, tactful, remain resolute in your decision. • Make the discussion private, businesslike, and fairly brief. • Don’t mix the good with the bad. Trying to sugarcoat the problem sends a mixed message to the employee. • Avoid making accusations against the employee and injecting personal feelings into the discussion. • Avoid bringing up any personality differences between you and the employee. • Provide any information concerning severance pay and the status of benefits and coverage. • Explain how employment inquiries from future employers will be handled.
Due Process • An employee’s right to present his or her position during a disciplinary action. • To know job expectations and the consequences of not fulfilling those expectations. • To consistent and predictable management action for the violation of rules. • To fair discipline based on facts, to question those facts, and the right to present a defense. • To appeal disciplinary action. • The right to progressive discipline.
Alternative Dispute Resolution • “ADR” • Different types of employee complaint or dispute-resolution procedures used to meet employees’ expectations for fair treatment in the workplace while guaranteeing them due process. • ADR Procedures • Step-Review Systems • Peer-Review Systems • Open-Door Policy • Ombudsman System • Mediation • Arbitration
Alternative Dispute Resolution Procedures • Step-Review System • System for reviewing employee complaints and disputes by successively higher levels of management. • Peer-Review System • A group composed of equal numbers of employee representatives and management appointees. • Functions as a jury since its members weigh evidence, consider arguments, and after deliberation, vote independently to render a final decision.
Additional ADR Procedures • Open-Door Policy • A policy of settling grievances that identifies various levels of management above the immediate supervisor for employee contact. • Ombudsman System • Ombudsman • Is a designated individual from whom employees may seek counsel for the resolution of their complaints. • Is an advocate for a fair process, not an advocate on behalf of individuals or the institution. • Does not have the power to decide or to overrule a decision, but can confidentially seek an equitable solution between the employee and the supervisor.
Third-party Dispute Resolution • Mediation • The use of an impartial neutral to reach a compromise decision in employment disputes • Mediator • A third party in an employment dispute who meets with one party and then the other in order to suggest compromise solutions or to recommend concessions from each side that will lead to an agreement.
Third-party Dispute Resolution (cont.) • Arbitration • The use of an impartial neutral party as decision maker to resolve an employment labor dispute by imposing a binding final decision on all parties involved in the dispute. • Arbitrator • Third-party neutral who resolves a labor dispute by issuing a final decision in the disagreement.
Managerial Ethics in Employee Relations • Ethics • A set of standards of conduct and moral judgments that help to determine right and wrong behavior. • Provides cultural guidelines—organizational or societal—that help decide between proper or improper conduct. • Code of Ethics • Is a set of written standards of conduct (ethical values) governing relations with employees and the public. • Provides a basis for the organization, and individual managers, to evaluate their plans and actions.
Key Terms • alternative dispute resolution • (ADR) • constructive discharge • discipline • due process • employee rights • employment-at-will principle • ethics • impairment testing • Mediation • negligence • ombudsman • open-door policy • peer-review system • positive, ornonpunitive, discipline • progressive discipline • psychological contract • step-review system • whistle-blowing • wrongful discharge