Developing Human Resource 5
Employee Rights and Responsibilities
CHAPTER 15
14e
Human Resource
Management
Robert L. Mathis | John H. Jackson | Sean R. Valentine
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© 2014Cengage Learning. All rights reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible Web site, in whole or in part.
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
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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
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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
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Contractual Rights
Rights based on a specific contract between employer and employee
An agreement that formally outlines the details of employment
Employment Contract
Prohibit individuals who leave an organization from working with an employer in the same line of business for a specified period of time
Noncompete Agreements
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
Protection of Intellectual Property
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Figure 15.1 - Provisions in Employment Contracts
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Noncompete Agreements
Nonpiracy agreements
Nonsolicitation of current employees
Intellectual property and trade secrets
Employment Contract Clauses
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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
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Rights Affecting the Employment Relationship
Employment-at-Will (EAW)
Wrongful and Constructive Discharge
Just Cause
Due Process
Distributive and Procedural Justice
The Employment Relationship
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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.
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EAW and the Courts
Rationales for Hearing EAW Cases
Public Policy Exception
Implied Contract Exception
Good-faith and Fair-Dealing Exception
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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
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Figure 15.2 - Keys for Preparing a Defense against Wrongful Discharge
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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
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Figure 15.3 - Criteria for Evaluating Just Cause and Due Process
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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
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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
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Work-Related Alternative Dispute Resolution (ADR)
Arbitration
Peer Review Panels
Ombuds
Alternative Dispute Resolution Methods
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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
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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
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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
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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
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Figure 15.4 - Employee Record Files
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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
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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
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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?
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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
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Figure 15.5 - Recommended Employer Actions Regarding Electronic Communications
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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
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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
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Conducting Work-Related Investigations - Best Practices
Give high priority to confidentiality throughout investigations
All important incidents should be properly documented
Develop a good working plan to respond in times of crises
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
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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
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Figure 15.6 - How Substance Abuse Affects Employers Financially
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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
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Drug Testing and Employee Rights
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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
Policies
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
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Figure 15.7 - Typical Division of HR Responsibilities: Policies, Procedures, and Rules
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Employee Handbooks
At-will Prerogatives
Harassment
Hours worked
Discipline
Electronic communication
Pay/benefits
Policies in Handbooks
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Employee Handbooks
Legal Review of Language
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
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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
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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
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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
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Positive Discipline Approach
Counseling
Written Documentation
Final Warning
Discharge
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Figure15.8 - Progressive Discipline Process
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Discharge and Termination
Discharge: When an employee is removed from a job at an employer
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