Term Paper HRM4550

Rain Ashbell

Chapter13EmployeesRightsandDiscipline.ppt

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Chapter 13
Employees Rights and Discipline

Learning Outcomes

After studying this chapter, you should be able to

Explain the concepts of employee rights and employer responsibilities.

Identify and explain what the privacy rights of employees are.

Establish disciplinary policies and differentiate between the two approaches to disciplinary action.

Identify the different types of alternative dispute resolution methods.

Employee Rights

Guarantees of fair treatment that become rights when they are granted to employees by the courts, legislatures, or employers

Include rights of employees to:

Protest unfair disciplinary actions

Have access to their personal files

Challenge employer searches and monitoring

Be free from employer discipline for off-duty conduct

Federal and state courts view the privacy rights of employees as minimal

Employer Responsibilities

Employer is responsible to provide a safe workplace for employees while guaranteeing safe, quality goods and services to consumers
Employers have to exercise reasonable care while
Hiring
Training
Assignment of employees to jobs

Employee Rights vs. Employer Responsibilities

Employers failure to honor the rights of employees, can result in
Costly lawsuits
Damaging the organization’s reputation
Hurting employee morale
Failure to protect the safety and welfare of employees or consumer interests can invite litigation from both groups

Employment-at-Will

Employment-at-will relationship – 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

The employment-at-will doctrine does not give managers and supervisors the unrestricted right of termination.

Psychological contract – Expectations of a fair exchange of employment obligations between an employee and employer

Example: In exchange for their talents and technical skills, workers expect employers to provide fair compensation, job training, and promotions.

Employment-at-Will

Employment-at-will relationship – 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

The employment-at-will doctrine does not give managers and supervisors the unrestricted right of termination.

Federal and state laws and court decisions restrict termination decisions.

In unionized organizations, collective bargaining agreements limit automatic discharges.

Employment-at-Will(cont’d)

Three exceptions to the employment-at-will doctrine:

Violation of public policy

Implied contract

Implied covenant

Violation of public policy

Occurs when an employee is terminated for refusing to commit a crime; for reporting criminal activity to government authorities; for disclosing illegal, unethical, or unsafe practices of the employer; or for exercising employment rights

Implied contract

Occurs when employees are discharged despite the employer’s promise of job security or contrary to established termination procedures

Implied Contract

If an implied promise by an employer of a condition, such as job security, has been made, courts have generally prohibited the employer from terminating the employee without first exhausting the conditions of the contract.

Implied covenant

Occurs when an employer has acted with a lack of good faith and fair dealing

Job Protection Rights

Whistle-Blowing

Whistle-blowing – Complaints to governmental agencies by employees about their employers’ illegal or immoral acts or practices

Discharges

Wrongful Discharge

Wrongful discharge – A discharge, or termination, of an employee that is illegal

Constructive Discharge

Constructive discharge – An employee’s voluntary termination of his or her employment because of harsh, unreasonable employment conditions placed on the individual by the employer

Discharges and the WARN Act

The Worker Adjustment and Retraining Notification (WARN) Act requires organizations with more than 100 employees to give employees 60 days’ notice of any closure or layoff affecting 50 or more full-time employees.

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 they exercise their rights under these statutes.

Tips to Avoid Wrongful Employment Termination Lawsuits

Section 13.1c: Job Protection Rights

Figure 13.3 lists some suggestions that firms can follow in order to avoid wrongful employment termination lawsuits.

Explicit Contracts

Explicit employment contracts are formal written (signed) agreements that grant to employees and employers agreed-upon employment benefits and privileges.

When an employee has an explicit contract, he or she cannot be dismissed at will.

Explicit contracts normally state the period of employment, terms and conditions of employment, and severance provisions.

Before hiring employees, employers sometimes impose certain restrictions, or provisions, in explicit contracts, such as nondisclosure of information agreements, which forbid employees from revealing proprietary information outside the company during or following their employment, and noncompete agreements, which prevent ex-employees from either becoming a competitor or working for a competitor for a designated period of time.

Explicit contracts are enforceable in court when either the employee or employer violates any provisions of the agreement.

The Balance of Employee Rights
to Privacy vs. Employers Wanting to Know

Section 13.1d: Privacy Rights

The right of privacy is the freedom from unwarranted government or business intrusion into one’s personal affairs. It involves the individual’s right to be given personal autonomy and to be left alone. Not surprisingly, employees strongly defend their right to workplace privacy. Meanwhile, employers defend their right to monitor employees’ activities when they directly affect a business, its productivity, workplace safety, and/or morale.

Privacy Rights

Substance Abuse and Drug Testing

Private employers generally have a right to require employees to submit to the tests.

Impairment Testing

Impairment testing – Also called fitness-for-duty or performance-based testing, it measures whether an employee is alert enough to work

Substance Abuse and Drug Testing

In the private sector, drug testing is largely regulated by individual states.

Federal regulations and laws restrict drug testing as well.

Barring state and federal laws that restrict or prohibit drug testing, however, private employers generally have a right to require employees to submit to the tests.

The exception is unionized workforces; drug testing for unionized employees must be negotiated by their unions.

Impairment Testing

Impairment testing – Also called fitness-for-duty or performance-based testing, it measures whether an employee is alert enough to work

Digital Surveillance (slide 1 of 4)

Camera Surveillance

In general, employers can train video cameras on their employees without significant legal concerns as long as they have a legitimate business reason for doing so and inform employees they are doing as much.

Phone Conversations and Text Communications

In general, employers have the right to monitor calls, texts, and direct 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.

Phone Conversations and Text Communications

The Electronic Communications Privacy Act (ECPA) restricts employers from intercepting wire, oral, or electronic communications, unless employees are told not to make personal calls or send text messages from their business phones.

Digital Surveillance (slide 2 of 4)

Email, Internet, and Computer Use

Employers can monitor what their employees do online and fire or discipline them based on that information.
Companies can legally create electronic communication policies that limit employees’ Internet use.

Access to Personnel Files

A firm’s HR department is usually responsible for maintaining personnel files and safeguarding their flow to prevent, among other things, identity theft.

Email, Internet, and Computer Use

Until recently employers were allowed to monitor any and all email communications their employees sent from work computers, but court rulings have limited employers’ rights somewhat.

More and more companies are banning social media at work.

Access to Personnel Files

Legislation at the federal level and various state laws permit employees to inspect their own personnel files.

Video Highlight #1

This article and video look at how many companies are using new technology (such as apps) to track and monitor their employees.

“New Ways Your Boss Could Be Keeping Tabs on You”

Section 13.1e: Digital Surveillance

VIDEO: New Ways Your Boss Could Be Keeping Tabs on You (3:44)

This article and video looks at how many companies are using new technology (such as apps) to track and monitor their employees.

https://www.cbsnews.com/news/companies-use-technology-monitor-employees-at-outside-office/

TOPICS/CONCEPTS: employee privacy rights, employer surveillance, employee monitoring

Digital Surveillance (slide 3 of 4)

Searches

A firm that reserves the right to search employees under warranted circumstances should have a written plan as to the privacy employees can expect.

Searches

A firm that reserves the right to search employees under warranted circumstances should have a written plan as to the privacy employees can expect.

The search policy should be clearly outlined in a firm’s employee handbook.

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.

Digital Surveillance (slide 4 of 4)

Off-Duty Employee Conduct

A number of states have passed laws that prohibit employees from disciplining or firing employees for activities they pursue offsite on their own time as long as they are legal.
Even when the activities are illegal, court rulings have suggested that the off-duty conduct may not, in some circumstances, be a lawful jurisdiction for employee discipline.

Off-Duty Employee Speech

Some organizations have policies that restrict employees from making disparaging remarks online about their firms or its supervisors.

Off-Duty Employee Conduct

A number of states have passed laws that prohibit employees from disciplining or firing employees for activities they pursue offsite on their own time as long as they are legal.

Even when the activities are illegal, court rulings have suggested that the conduct may not, in some circumstances, be a lawful jurisdiction for employee discipline.

Organizations that want to 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 policies that restrict employees from making disparaging remarks online about their firms or its supervisors.

Video Highlight #2

After some public criticism, Starbucks says it’s considering changing its strict employee dress code, including its ban on visible tattoos. This video looks at how visible tattoos are becoming more accepted in today’s workplace.

“Starbucks Rethinking Visible Tattoo Ban for Employees”

Section 13.1e: Digital Surveillance

VIDEO: Starbucks Rethinking Visible Tattoo Ban for Employees (1:56)

https://www.youtube.com/watch?v=OHIu7dORkq4

TOPICS/CONCEPTS: body art, tattoos, discrimination, tattoos in the workplace, employee tattoos

The True Definition of Discipline

Section 13.2: Disciplinary Policies and Procedures

When managers are asked to define the word discipline, their most frequent response is that discipline means punishment.

However, in the context of management, discipline does not mean punishment. Rather, discipline is a tool used to correct the practices of employees to help them perform better so they conform to acceptable standards. Many organizations define discipline in their policy manuals as training that “corrects, molds, or perfects knowledge, attitudes, behavior, or conduct.”

Common Disciplinary Problems

Section 13.2: Disciplinary Policies and Procedures

Figure 13.10 lists the more common disciplinary problems identified by managers.

A Disciplinary Model

Section 13.2a: The Result of Inaction

Figure 13.11 presents a disciplinary model that illustrates the areas where provisions should be established. The model also shows the logical sequence in which disciplinary steps must be carried out to ensure enforceable decisions.

The Result of Inaction

Should discipline become necessary, the employee’s immediate supervisor is the logical person to apply the company’s disciplinary procedures and monitor the employee’s improvement, although the HR departments should develop and ensure disciplinary policy and action conform to current laws.

Setting an organization’s rules is the foundation for an effective disciplinary system.

These rules govern the type of behavior expected of employees.

The following suggestions can help HR managers and their firms when they are considering the rules the organization should adopt and how they should be implemented:

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.

The rules should be clearly explained.

Employees should sign a document stating that they have read and understood the organizational rules.

The rules should be reviewed periodically.

Setting Organizational Rules

Setting an organization’s rules is the foundation for an effective disciplinary system.
These rules govern the type of behavior expected of employees.

The following suggestions can help HR managers and their firms when they are considering the rules the organization should adopt and how they should be implemented:

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.

The rules should be clearly explained.

Employees should sign a document stating that they have read and understood the organizational rules.

The rules should be reviewed periodically.

Documenting Misconduct

Failure to record the misconduct of employees, can undermine a firm’s efforts to deal with the behavior

When a manager fails to record the misconduct of employees, it can undermine a firm’s

efforts to deal with the behavior. A manager’s records of employee misconduct are considered

business documents, and as such they are admissible evidence in arbitration

hearings, administrative proceedings, and courts of law.

To be complete, the documentation should include the following eight items:

The date, time, and location of the incident(s)
The behavior exhibited by the employee (the problem)
The 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
The disciplinary action to be taken and the improvements expected should be documented
The consequences of failing to make the improvements by a certain follow-up date
The employee’s reaction to the supervisor’s attempt to change his or her behavior
The names of witnesses to the incident (if applicable)

Investigating a
Disciplinary Problem

The Investigative Interview

Before any disciplinary action is initiated, an investigative interview should be conducted to make sure the employee is fully aware of the organization’s rules and that he or she has not followed them.
The employee must be given a full opportunity to explain his or her side of the issue.

The interview should concentrate on how the offense violated the performance and behavior standards expected.

Questions to Consider during Disciplinary Investigations

Section 13.2c: Investigating a Disciplinary Problem

Figure 13.12 lists seven questions to consider when investigating an employee offense. Attending to each question will help ensure a full and fair investigation while providing reliable information free from personal prejudice.

Approaches to
Disciplinary Action

Two approaches to disciplinary action:

1. Progressive discipline – The application of corrective measures by increasing degrees

Four steps:

Oral warning (or counseling)

Written warning

Suspension without pay

Discharge

2. Positive, or nonpunitive, discipline – A system of discipline that focuses on early correction of employee misconduct, with the employee taking total responsibility for correcting the problem

Discharging Employees

Because discharging a worker poses serious consequences for the employee—and possibly for the organization—it should be undertaken only after a deliberate and thoughtful review of the situation.
If an employee is fired, he or she may file a wrongful discharge suit claiming the termination was “without just or sufficient cause,” implying a lack of fair treatment by management.

“Just Cause” Discharge Guidelines

Section 13.2e: Discharging Employees

How does an employer know if it has just cause to terminate an employee? This question is not easily answered, but standards governing discharges do exist in the form of rules developed in the field of labor arbitration. These rules consist of a set of guidelines that are applied by arbitrators to determine if a firm had just cause for a termination. These guidelines are normally set forth in the form of questions, provided in Figure 13.13. A “no” answer to any of the seven questions in the figure generally means that just cause was not established and that the decision to terminate was arbitrary, capricious, or discriminatory.

Alternative Dispute
Resolution Procedures (slide 1 of 3)

Alternative dispute resolution (ADR) – A term applied to different employee complaint or dispute resolution methods that do not involve going to court

Step-Review Systems

Step-review system – A system for reviewing employee complaints and disputes by successively higher levels of management

Step-review system – A system for reviewing employee complaints and disputes by successively higher levels of management

In most step-review systems, the president, chief executive officer, vice president, or HR director acts as the final authority, and this person’s decision is not appealable.

Alternative Dispute
Resolution Procedures (slide 2 of 3)

Peer-Review Systems

Peer-review system – A system for reviewing employee complaints that utilizes a group composed of equal numbers of employee representatives and management appointees

Open-Door Policy

Open-door policy – A policy of settling grievances that identifies various levels of management above the immediate supervisor for employee contact

Ombudsman System

Ombudsman – A designated individual from whom employees may seek counsel for resolution of their complaints

Peer-Review Systems

Peer-review system – A system for reviewing employee complaints that utilizes a group composed of equal numbers of employee representatives and management appointees

A peer-review system functions as a jury because its members weigh evidence, consider arguments, and, after deliberation, vote independently to render a final decision.

Open-Door Policy

Open-door policy – A policy of settling grievances that identifies various levels of management above the immediate supervisor for employee contact

Ombudsman System

Ombudsman – A designated individual from whom employees may seek counsel for resolution of their complaints

Alternative Dispute
Resolution Procedures (slide 3 of 3)

Mediation

Mediation – The use of an impartial neutral to reach a compromise decision in employment disputes
Unlike an arbitrator, a mediator has no power or authority to force either side toward an agreement.

Arbitration

With arbitration, the employee and employer present their cases, or arguments, to an arbiter, who is typically a retired judge, who then makes a decision that the parties have agreed to be bound by.

Mediation

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 to suggest compromise solutions or to recommend concessions from each side that will lead to an agreement

Unlike an arbitrator, a mediator has no power or authority to force either side toward an agreement.

Arbitration

With arbitration, the employee and employer present their cases, or arguments, to an arbiter, who is typically a retired judge, who then makes a decision that the parties have agreed to be bound by.

Managerial Ethics
in Employee Relations

Ethics – A set of standards of conduct and moral judgments that help to determine right and wrong behavior
Many organizations have codes of ethics that govern how they deal with their employees and the public.

HR departments have been given a greater role in promoting ethics.

Many organizations have ethics committees and ethics ombudsmen to provide training in ethics to employees.

Goals of ethics training:

To avoid unethical behavior and adverse publicity

To gain a strategic advantage

To treat employees in a fair and equitable manner

Psychological contract – Expectations of a fair exchange of employment obligations between an employee and employer

Example: In exchange for their talents and technical skills, workers expect employers to provide fair compensation, job training, and promotions.

Employment-at-Will

Employment-at-will relationship – 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

The employment-at-will doctrine does not give managers and supervisors the unrestricted right of termination.

Federal and state laws and court decisions restrict termination decisions.

In unionized organizations, collective bargaining agreements limit automatic discharges.

Violation of public policy

Implied contract

Occurs when employees are discharged despite the employer’s promise of job security or contrary to established termination procedures

Implied Contract

Implied covenant

Occurs when an employer has acted with a lack of good faith and fair dealing

Discharge as a Result of Retaliation

Section 13.1c: Job Protection Rights

Figure 13.3 lists some suggestions that firms can follow in order to avoid wrongful employment termination lawsuits.

Explicit contracts normally state the period of employment, terms and conditions of employment, and severance provisions.

Explicit contracts are enforceable in court when either the employee or employer violates any provisions of the agreement.

Section 13.1d: Privacy Rights

Substance Abuse and Drug Testing

In the private sector, drug testing is largely regulated by individual states.

Federal regulations and laws restrict drug testing as well.

Barring state and federal laws that restrict or prohibit drug testing, however, private employers generally have a right to require employees to submit to the tests.

The exception is unionized workforces; drug testing for unionized employees must be negotiated by their unions.

Impairment Testing

Impairment testing – Also called fitness-for-duty or performance-based testing, it measures whether an employee is alert enough to work

Phone Conversations and Text Communications

Email, Internet, and Computer Use

Until recently employers were allowed to monitor any and all email communications their employees sent from work computers, but court rulings have limited employers’ rights somewhat.

More and more companies are banning social media at work.

Access to Personnel Files

Legislation at the federal level and various state laws permit employees to inspect their own personnel files.

Section 13.1e: Digital Surveillance

VIDEO: New Ways Your Boss Could Be Keeping Tabs on You (3:44)

This article and video looks at how many companies are using new technology (such as apps) to track and monitor their employees.

https://www.cbsnews.com/news/companies-use-technology-monitor-employees-at-outside-office/

TOPICS/CONCEPTS: employee privacy rights, employer surveillance, employee monitoring

Searches

A firm that reserves the right to search employees under warranted circumstances should have a written plan as to the privacy employees can expect.

The search policy should be clearly outlined in a firm’s employee handbook.

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.

Off-Duty Employee Conduct

A number of states have passed laws that prohibit employees from disciplining or firing employees for activities they pursue offsite on their own time as long as they are legal.

Even when the activities are illegal, court rulings have suggested that the conduct may not, in some circumstances, be a lawful jurisdiction for employee discipline.

Organizations that want to 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 policies that restrict employees from making disparaging remarks online about their firms or its supervisors.

Section 13.1e: Digital Surveillance

VIDEO: Starbucks Rethinking Visible Tattoo Ban for Employees (1:56)

https://www.youtube.com/watch?v=OHIu7dORkq4

TOPICS/CONCEPTS: body art, tattoos, discrimination, tattoos in the workplace, employee tattoos

Section 13.2: Disciplinary Policies and Procedures

When managers are asked to define the word discipline, their most frequent response is that discipline means punishment.

Section 13.2: Disciplinary Policies and Procedures

Figure 13.10 lists the more common disciplinary problems identified by managers.

Section 13.2a: The Result of Inaction

Setting an organization’s rules is the foundation for an effective disciplinary system.

These rules govern the type of behavior expected of employees.

The following suggestions can help HR managers and their firms when they are considering the rules the organization should adopt and how they should be implemented:

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.

The rules should be clearly explained.

Employees should sign a document stating that they have read and understood the organizational rules.

The rules should be reviewed periodically.

The following suggestions can help HR managers and their firms when they are considering the rules the organization should adopt and how they should be implemented:

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.

The rules should be clearly explained.

Employees should sign a document stating that they have read and understood the organizational rules.

The rules should be reviewed periodically.

When a manager fails to record the misconduct of employees, it can undermine a firm’s

efforts to deal with the behavior. A manager’s records of employee misconduct are considered

business documents, and as such they are admissible evidence in arbitration

hearings, administrative proceedings, and courts of law.

To be complete, the documentation should include the following eight items:

The date, time, and location of the incident(s)
The behavior exhibited by the employee (the problem)
The 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
The disciplinary action to be taken and the improvements expected should be documented
The consequences of failing to make the improvements by a certain follow-up date
The employee’s reaction to the supervisor’s attempt to change his or her behavior
The names of witnesses to the incident (if applicable)

The interview should concentrate on how the offense violated the performance and behavior standards expected.

Section 13.2c: Investigating a Disciplinary Problem

Section 13.2e: Discharging Employees

Step-review system – A system for reviewing employee complaints and disputes by successively higher levels of management

In most step-review systems, the president, chief executive officer, vice president, or HR director acts as the final authority, and this person’s decision is not appealable.

Peer-Review Systems

Peer-review system – A system for reviewing employee complaints that utilizes a group composed of equal numbers of employee representatives and management appointees

A peer-review system functions as a jury because its members weigh evidence, consider arguments, and, after deliberation, vote independently to render a final decision.

Open-Door Policy

Open-door policy – A policy of settling grievances that identifies various levels of management above the immediate supervisor for employee contact

Ombudsman System

Ombudsman – A designated individual from whom employees may seek counsel for resolution of their complaints

Mediation

Mediation – The use of an impartial neutral to reach a compromise decision in employment disputes

Unlike an arbitrator, a mediator has no power or authority to force either side toward an agreement.

Arbitration

With arbitration, the employee and employer present their cases, or arguments, to an arbiter, who is typically a retired judge, who then makes a decision that the parties have agreed to be bound by.

HR departments have been given a greater role in promoting ethics.

Many organizations have ethics committees and ethics ombudsmen to provide training in ethics to employees.

Goals of ethics training:

To avoid unethical behavior and adverse publicity

To gain a strategic advantage

To treat employees in a fair and equitable manner