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CHAPTER 14

Employee Rights and Responsibilities

Learning Objectives

Explain elements of employment contracts, including noncompete and intellectual property agreements

Define employment at will and discuss how wrongful discharge, just cause, and due process are interrelated

Discuss issues associated with employee privacy, free speech, and whistle-blowing

Learning Objectives (continued)

Analyze workplace monitoring, employer investigations, and other steps taken to ensure a safe and productive workplace

Understand the use of policies, procedures, and employee handbooks to communicate workplace behavior and performance expectations

Outline approaches to employee discipline and termination of employment

Employee Rights and Responsibilities

Rights: Powers, privileges, or interests derived from law, nature, or tradition

Statutory rights: Result of 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

Contractual Rights

Rights based on a specific contract between an employer and an employee

Employment contract: Formal agreement that outlines the details of employment

Noncompete agreement: Prohibits individuals who leave an organization from working with an employer in the same line of business for a specified period of time

Noncompete Agreements

Employment contract clauses

Nonpiracy agreements

Nonsolicitation of current employees

Contractual Rights (continued)

Protection of intellectual property

Right to keep trade secrets confidential

Right to have employees bring business opportunities to the employer first before pursuing them elsewhere

Common-law copyright for works and other documents prepared by employees for their employers

Implied Contracts

Unwritten agreements created by the actions of the parties involved

Affect 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 (E A W)

Wrongful and constructive discharge

Just cause

Due process

Organizational justice

Employment at Will (E A W)

Common-law doctrine stating that

Employers have the right to hire, fire, demote, or promote whomever they choose, unless there is a law or a contract to the contrary

Employees can quit at any time with or without notice

Courts have recognized certain exceptions to E A W

Public policy exception, implied contract exception, good-faith and fair-dealing exception, and statutory exception

Wrongful Discharge and Constructive Discharge

Wrongful discharge: Termination of an individual’s employment for reasons that are illegal or improper

Constructive discharge: Deliberately making conditions intolerable to get an employee to quit

Keys for Preparing a Defense against Wrongful Discharge

Put together accurate performance evaluations

Develop documentation justifying dismissals

Provide employees with a written warning

Provide written grounds for termination decisions

Involve more than one person in the dismissal decision

Just Cause and Due Process

Just cause: Reasonable justification for taking an employment-related action

Due process: Occurs when an employer is determining if there has been employee wrongdoing and uses a fair process to give an employee a chance to explain and defend his or her actions

Criteria for Evaluating Just Cause

Just cause determinants

Was the employer’s rule reasonable?

Was the employee warned of the consequences of the conduct?

Did management investigate before disciplining?

Was the investigation fair and impartial?

Was there sufficient evidence of guilt?

Were the rules and penalties applied consistently?

Was the penalty reasonable, given the offense?

Criteria for Evaluating Due Process

Due process considerations

How have precedents been handled?

Was the employee asked for his or her side of the story?

Is a complaint process available?

Was the complaint process used?

Did the company retaliate against the employee?

Was the decision based on facts?

Were the actions and processes viewed as fair by outside entities?

Organizational Justice

Fairness of decisions and resource allocations in an organization

Elements

Procedural justice: Perceived fairness of the processes used to make decisions about employees

Distributive justice: Perceived fairness in the distribution of outcomes

Interactional justice: Extent to which a person affected by an employment decision feels treated with dignity and respect

Open-Door Policy

Allows workers with a complaint to talk with someone in management

Used by union-free firms but can be mishandled

Union-free firms benefit from having formal complaint procedures that are well-defined to provide a more systematic due process for employees than do open-door policies

Unionized employees have a formal grievance procedure specified in the union contract

Alternative Dispute Resolution (A D R) Methods

Arbitration: Uses a neutral third party to make a binding decision, thereby eliminating the need to involve the court

Compulsory arbitration: Employees waive their rights to pursue legal action until arbitration is complete

Peer review panels: Internal committees of employees that review disciplinary actions and make recommendations

Reduce lawsuits, provide due process, and lower costs

Alternative Dispute Resolution (A D R) Methods (continued)

Ombuds: Individuals outside the normal chain of command who act as independent problem solvers for both management and employees

Mediation: Tool for developing appropriate and fair outcomes for all parties involved

Facilitative approach: Fosters communication among parties and uncovers options for settling

Evaluative approach: Points out potential weaknesses in each side’s case and offers potential settlement options

Privacy Rights

Right to privacy: An individual’s freedom from unauthorized and unreasonable intrusion into personal affairs

Change in nature of privacy issues at workplace is due to:

Internet communications

Social media

Mobile devices

Telecommunication systems

Employee Records

Employee medical records

Americans with Disabilities Act

Requires that all medical-related information be maintained separately from all other confidential files

Health Insurance Portability and Accountability Act

Includes regulations designed to protect the privacy of employee medical records

Access restrictions and security procedures

Should exist to protect the privacy of employees and protect employers from potential liability for improper disclosure of personal information

Employees’ Free Speech Rights

Three situations in which employees’ freedom of speech might be restricted include:

Expressing controversial, divisive, and/or political views

Whistle-blowing

Using the Internet and other communication-based technology

Expressing Controversial, Divisive, and/or Political Views

Handling concerns

Attempt informal resolution first

Outline boundaries and standards for appropriate behavior in a formalized policy that addresses work expectations

Have a signed nondisclosure privacy agreement

Whistle-Blowing

Whistle-blowers: Individuals who report real or perceived wrongs committed by their coworkers or employers

Laws protecting whistle-blowers

Sarbanes-Oxley Act

Antiretaliation rules issued by O S H A

Equal Employment Opportunity Commission rules

Whistle-Blowing (continued)

Key questions regarding 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 out?

Technology and Employer–Employee Issues

Monitoring electronic communications

E-mail, social media, and text messaging cause major issues for privacy

Bring your own device (B Y O D): Employees use their own mobile devices such as smartphones and digital tablets in the workplace

H R policies on electronic communications

Should provide guidance

Employers should develop policies

Recommended Employer Actions Regarding Electronic Communications

Develop an electronic communications policy

Communicate the policy to employees

Obtain signed permission from employees

Monitor for business purposes only

Enforce the policy through disciplinary procedures

Employee Rights and Personal Behavior

Counterproductive behavior

Bullying, harassment, and assault

Dress and body appearance limitations

Visible tattoos, certain clothing, and body piercings

Off-duty behavior

Misconduct, especially when wearing clothing or badges with company identification

Weapons in the workplace

Balance a safe workplace with the right to bear arms

Workplace Monitoring

Private-sector employers can monitor, observe, and search employees

Conducting video surveillance at work

Employers should be careful so that employer rights and employee privacy do not collide

Employers should develop a policy and inform employees of the policy

Monitoring employee performance

Signed employee consent form stating that performance will be monitored regularly should be obtained from employees

Employer Investigations

Develop a good plan to respond in crises

Specify who will conduct the investigation

Investigate problems quickly before evidence can be tampered with

Assess the credibility of individuals and information in an investigation

Use the stories and information collected to conclude the investigation and recommend any remedial steps

Employee Theft and Fraud

White-collar theft occurs through embezzling, accepting bribes, and stealing company property

Addressing employee theft and other workplace misconduct

Conduct thorough pre-hire applicant screening and background investigations

Use honesty tests both before and after a person is hired

Use workplace monitoring to review unusual behaviors

Employee Theft and Fraud (continued)

Develop an ethics code that outlines appropriate behaviors, and conduct ethics training

Conduct internal checks and balances and audits regularly

Honesty and Polygraph Tests

Employee Polygraph Protection Act

Prohibits the use of polygraphs for most pre-employment 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

Not be terminated because they refuse to take a polygraph test or solely because of the exam results

Negative Impacts of Substance Abuse in the Workplace

Work performance

Inconsistent work quality

Increased absenteeism

Carelessness and mistakes

Risky, unsafe acts

Personal behavior

Blaming coworkers for own errors

Complaints and excuses for time off

Deteriorating personal hygiene

Negative Impacts of Substance Abuse in the Workplace (continued)

Avoiding colleagues

Financial costs

Inadequate production

Rework or replacement for poor quality production

Coverage for absences

Workers’ compensation and health care

Substance Abuse and Drug Testing

National Council on Alcohol and Drug Dependence estimates that 70% of people who illegally use drugs are employed

Laws that address drug testing:

Americans with Disabilities Act

Specifies that alcoholism is a disability but that dependency on illegal drugs is not

Drug-Free Workplace Act of 1988

Government contractors must try 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

Drug Testing and Employee Rights (continued)

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 offers a complete drug rehabilitation program, including an employee assistance program

H R Policies, Procedures, and Rules

Policies: General guidelines that help focus organizational actions

Procedures: Customary methods of handling activities

More specific than policies

Rules: Specific guidelines that regulate and restrict individuals’ behavior

Shared Responsibility for Policies, Procedures, and Rules

H R unit

Designs formal mechanisms for coordinating H R policies

Assists in developing organization-wide H R policies, procedures, and rules

Provides information on application of H R policies, procedures, and rules

Trains managers to administer policies, procedures, and rules

Shared Responsibility for Policies, Procedures, and Rules (continued)

Managers

Help in developing H R policies and rules

Review policies and rules with all employees

Apply H R policies, procedures, and rules

Explain rules and policies to all employees

Give feedback on effectiveness of policies and rules

Employee Handbook

Physical or electronic manual that explains a company’s essential policies, procedures, and employee benefits

Communicates workplace culture, benefits, attendance, pay practices, safety issues, discipline, and other critical information

Effective when written in common language rather than legalistic fashion

Recommendations on Creating an Employee Handbook

Eliminate controversial phrases

Use disclaimers that are prominently displayed

Keep the handbook content current

Possible Topics for an Employee Handbook

Introduction

Welcome message

Company history

Mission, vision, and values

General employment policies

Employment and labor laws

Employment status and work hours

Nondisclosure and intellectual property protections

Use of company technology/bring your own device policy

Possible Topics for an Employee Handbook (continued)

Workplace conduct

Harassment and civility policies

Professional attire and behavior

Attendance requirements

Disciplinary procedures

Compensation and benefits

Pay grades and pay increase policy

Performance management process

Benefits eligibility

Paid time off/vacation entitlement

Communicating H R Information

Downward communication

Flows from top management to the rest of the organization

Informs employees about what is and will be happening in the organization and what top management’s expectations and goals are

Upward communication

Enables managers to learn about the ideas, concerns, and information needs of employees

Employee Discipline

Discipline: Process of corrective action used to enforce organizational rules

Effective discipline:

Is aimed at problem behaviors, not at employees personally

Is monitored by H R to ensure that remedial actions follow corporate and legal guidelines, are appropriate, and are fair and consistent

Relies on supervisors and managers who are properly trained on when and how to use discipline

Approaches to Discipline

Positive discipline approach

Counseling

Written documentation

Final warning

Discharge

Progressive discipline approach

Incorporates steps that become progressively more severe and are designed to change the employee’s inappropriate behavior

Figure 14-9: Progressive Discipline Process

Challenges in Employee Discipline

At-will employment

Formally stated discipline processes can undercut at-will provisions

Fairness and consistency

Equity should be the key

Documentation problems

Documenting issues ensures the process is done correctly

Reluctance to discipline

Employee Discipline (continued)

Reasons why managers might not use discipline

Organizational culture of avoiding discipline

Lack of support from higher management

Guilt about past behavior

Fear of loss of friendship

Avoidance of time loss

Fear of lawsuits

Termination

Occurs when an employee is removed from a job at an organization

Occurs for numerous reasons such as excessive violations of attendance policies and behavioral issues

Treating employees with dignity and respect is an ethical approach

Separation agreement: Terminated employee agrees not to sue the employer in exchange for specified benefits

H U M A N R E S O U R C E

MANAGEMENT

V A L E N T I N E M E G L I C H M A T H I S J A C K S O N

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