Employee Rights and Responsibilities CHAPTER 15 14e

Learning Objectives Define employment-at-will and discuss how wrongful discharge, just cause, and due process are interrelated Identify employee rights associated with free speech and access to employee records Discuss issues associated with workplace monitoring, employer investigations, and drug testing

Learning Objectives List elements to consider when developing an employee handbook Understand the use of employee discipline in companies and differentiate between the positive and progressive approaches to discipline Outline the issues and procedures related to employee discharge and termination

Employee Rights and Responsibilities Rights: Power, privileges or interests derived from law, nature, or tradition Statutory rights: Based on specific laws or statutes passed by federal, state, or local governments Equal employment opportunity Collective bargaining Workplace safety Responsibilities: Obligations to perform certain tasks and duties

Noncompete Agreements Protection of Intellectual Property Contractual Rights Rights based on a specific contract between employer and employee Employment Contract An agreement that formally outlines the details of employment Noncompete Agreements Prohibit individuals who leave an organization from working with an employer in the same line of business for a specified period of time Protection of Intellectual Property Right to keep trade secrets confidential and to have employees bring business opportunities to the employer first Common-law copyright for works prepared by employees for their employees

Figure 15.1 - Provisions in Employment Contracts

Noncompete Agreements Nonpiracy agreements Nonsolicitation of current employees Intellectual property and trade secrets Employment Contract Clauses

Implied Contracts Unwritten contract between individuals and their employers Affects employment relationship Rights and responsibilities of the employee may exist only as unwritten employer expectations about what is acceptable behavior or performance

Rights Affecting the Employment Relationship Employment-at-Will (EAW) Wrongful and Constructive Discharge Just Cause Due Process Distributive and Procedural Justice The Employment Relationship

Employment-at-Will (EAW) Employers Have the right to hire, fire, demote, or promote as they choose, unless there is a law or contract to the contrary. Employees Have the right to quit and get another job under the same constraints.

EAW and the Courts Rationales for Hearing EAW Cases Public Policy Exception Implied Contract Exception Good-faith and Fair-Dealing Exception

Employment-at-Will Restrictions Wrongful Discharge Termination of an individual’s employment for reasons that are improper or illegal Constructive Discharge An employer deliberately makes working conditions intolerable for an employee in an attempt to get (to force) that employee to resign or quit

Figure 15.2 - Keys for Preparing a Defense against Wrongful Discharge

Employment-at-Will: Fairness Just cause: Reasonable justification for taking an employment-related action Due process: Requirement that the employer use a fair process to determine employee wrongdoing Allows employees to explain and defend their actions against charges or discipline

Figure 15.3 - Criteria for Evaluating Just Cause and Due Process

Organizational Justice Distributive Justice Perceived fairness in the distribution of outcomes Procedural Justice Perceived fairness of the process used to make decision about employees Interactional Justice Perceived fairness about how a person interacts with others

Open Door Policy Anyone with a complaint can talk with a manager, an HR representative, or an executive Probability of being mishandled Nonunion firms benefit from having formal complaint procedures that are well-defined

Work-Related Alternative Dispute Resolution (ADR) Arbitration Peer Review Panels Ombuds Alternative Dispute Resolution Methods

Work-Related Alternative Dispute Resolution Arbitration: Using a neutral third party to make a decision Compulsory arbitration All disputes will be submitted to arbitration Employees waive their rights to pursue legal action until the completion of the arbitration process Peer review panels - Advantages Reduces lawsuits Provision of due process Lower costs Management and employee development

Work-Related Alternative Dispute Resolution Ombuds Individuals outside the normal chain of command, acting as problem solvers for both management and employees Mediation Tool for developing appropriate and fair outcomes for all parties involved Helps settle disputes and figures out how employees can more effectively interact with each other on the job

Right to Privacy An individual’s freedom from unauthorized and unreasonable intrusion into personal affairs Change in nature of privacy issues at work place due to: Internet communications Specialized computers Telecommunications systems

Privacy Rights and Employee Records Employee Medical Records Recordkeeping and retention practices are affected by provisions of Americans with Disabilities Act (ADA) Security of Employee Records Protect the privacy of employees Protect employers from potential liability for improper disclosure of personal information Electronic Records

Figure 15.4 - Employee Record Files

Employees’ Free Speech Rights Employee Advocacy of Controversial Views Handling concerns Attempt informal resolution first Outline the boundaries and standards for appropriate behavior in a formalized policy that addresses work expectations Signed nondisclosure privacy agreement Whistle-Blowing and Employee Protection Whistle-blowers: Individuals who report real or perceived wrongs committed by their employers

Laws Protecting Whistle-Blowers Sarbanes-Oxley Act Dodd-Frank Wall Street Reform Company guilty of retaliation is required to: Give the individual back his or her job Provide back pay or double back pay to make up for lost compensation Cover any costs associated with legal counsel Consumer Protection Act

Key Questions in Regard to Whistle-Blowing When do employees have the right to speak out with protection from retribution? When do employees violate the confidentiality of their jobs by speaking?

Technology and Employer/Employee Issues Monitoring Electronic Communications Helps with the following challenges: Tendency to communicate more casually in e-mails can lead to inappropriate communication Forwarding unprofessional content HR Policies on Electronic Communications

Figure 15.5 - Recommended Employer Actions Regarding Electronic Communications

Employee Rights and Personal Behavior Reviewing Unusual Behavior Dress and Body Appearance Limitations Placing legitimate job-related limits on an employee’s personal at-work appearance Off-Duty Behavior Discipline an employee if his/her off-the-job behavior puts the company in legal or financial jeopardy

Workplace Monitoring Conducting Video Surveillance at Work Ensures employee security Requires employers to be careful so that employer rights and employee privacy do not collide Monitoring Employee Performance Signed employee consent form stating that performance will be monitored regularly

Conducting Work-Related Investigations - Best Practices Develop a good working plan to respond in times of crises Give high priority to confidentiality throughout investigations All important incidents should be properly documented Specify whether HR or another party will conduct the actual investigation Investigate problems quickly before evidence can be tampered with Credibility of individuals providing information in an investigation must be assessed Use the stories and information collected to identify a conclusion to the investigation

Honesty and Polygraph Tests Employee Polygraph Protection Act Prohibits the use of polygraphs for most preemployment screening Requires that employees must: Be advised of their rights to refuse to take a polygraph exam Be allowed to stop the exam at any time; and Not be terminated because they refuse to take a polygraph test or solely because of the exam results

Figure 15.6 - How Substance Abuse Affects Employers Financially

Substance Abuse and Drug Testing American with Disabilities Act Alcoholism is a disability, but that dependency on illegal drugs is not Family and Medical Leave Act Covers substance abuse Drug-Free Workplace Act of 1988 Requires government contractors to take steps to eliminate employee drug use

Drug Testing and Employee Rights Policies for Conducting Drug Tests Random testing of all employees at periodic intervals Testing only in cases of probable cause Testing after accidents Test Conditions Job-related consequences outweigh privacy concerns Accurate test procedures are available Written consent of the employee is obtained Results are treated confidentially Employer has drug program, including an EAP

HR Policies, Procedures, and Rules General guidelines that focus organizational actions. “Why we do it” Procedures Customary methods of handling activities “How we do it” Rules Specific guidelines that regulate and restrict the behavior of individuals. “The limits on what we do” Employee Rights

Figure 15.7 - Typical Division of HR Responsibilities: Policies, Procedures, and Rules

Electronic communication Employee Handbooks At-will Prerogatives Harassment Hours worked Discipline Electronic communication Pay/benefits Policies in Handbooks

Employee Handbooks Legal Review of Language Readability Use Eliminate controversial phrases in wording Use disclaimers disavowing handbook as a contract Keep handbook content current Readability Adjust reading level of handbook for intended audience of employees Use Communicate and discuss handbook Notify all employees of changes in the handbook

Communicating HR Information Downward communication Flows from top management to the rest of the organization Informs employees about expectations and goals of top management Upward communication Enables managers to learn about the ideas, concerns, and information needs of employees

Employee Discipline Discipline: A form of training that enforces organizational rules Effective discipline Focuses on problem behaviors, not at the employees personally Supports distributive and procedural justice in the organizations Relies on supervisors and manager who are properly trained on when and how to use discipline

Employee Discipline Organizational culture of avoiding discipline Lack of support by higher management Fear of lawsuits Avoidance of time loss Guilt about past behavior Fear of loss of friendship

Positive Discipline Approach Counseling Written Documentation Final Warning Discharge

Figure15.8 - Progressive Discipline Process

Discharge and Termination Discharge: When an employee is removed from a job at an employer