Chapter 16 Employee Rights and Discipline

Copyright © 2005 Thomson Business & Professional Publishing.All rights reserved.

ROBERT L. MATHIS

JOHN H. JACKSON

PowerPoint Presentation by Charlie CookThe University of West Alabama

Employee Rights Employee Rights and Disciplineand Discipline

Chapter 16Chapter 16

SECTION 5SECTION 5EmployeeEmployee Relations Relations

Copyright © 2005 Thomson Business & Professional Publishing. All rights reserved.

16–2

Learning ObjectivesLearning ObjectivesLearning ObjectivesLearning Objectives

• After you have read this chapter, you should be able to: Explain the difference between statutory rights and contractual

rights.

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

Identify employee rights associated with access to employee records and free speech.

Discuss issues associated with workplace monitoring, employer investigations, and drug testing.

List elements to consider when developing an employee handbook.

Differentiate between the positive approach and progressive approach to discipline.


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Rights and Responsibilities IssuesRights and Responsibilities IssuesRights and Responsibilities IssuesRights and Responsibilities Issues

• RightsThat which belongs to a person by law, nature, or

tradition.

• ResponsibilitiesObligations to perform certain tasks and duties.

• Statutory RightsRights based on specific laws and statutes passed by

federal, state, and local governments.Equal employment opportunityCollective bargainingWorkplace safety


16–4

Contractual RightsContractual RightsContractual RightsContractual Rights

• Contractual RightsRights based on a specific contract between employer

and employee. Can be spelled out formally in written employment contracts

or implied in employee handbooks and published policies..

• Employment ContractAn agreement that formally outlines the details of

employment.

• Implied ContractThe idea that a contract exists between the employer

and the employee based on the implied promises of the employer.


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Typical Provisions Typical Provisions in Employment in Employment

ContractsContracts

Typical Provisions Typical Provisions in Employment in Employment

ContractsContracts

Figure 16–1


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Contractual RightsContractual RightsContractual RightsContractual Rights

• Non-Compete AgreementsProhibit individuals who quit from competing with an

employer in the same line of business for a specified period of time.

Non-piracy agreements bar former employees from soliciting business from former customers and clients for a specified period of time.

Non-solicitation of current employees agreements prevent a former employee encouraging former co-workers to join a different company, often a competitor.

Intellectual property and trade secrets prevent former employees from revealing key competitive information.


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Employment Practices Liability InsuranceEmployment Practices Liability InsuranceEmployment Practices Liability InsuranceEmployment Practices Liability Insurance

• Employment Practices Liability Insurance (EPLI)Covers employer’s costs for

legal fees, settlements, and judgments associated with employment-related actions such as:

Discrimination

Wrongful discipline

Sexual harassment

Wrongful termination

Negligent evaluation

Infliction of emotional distress

Breach of employment contract

Deprivation of career opportunity

Improper management of employee benefits


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Rights Affecting the Employment Rights Affecting the Employment RelationshipRelationship

Rights Affecting the Employment Rights Affecting the Employment RelationshipRelationship

• Employment-at-Will (EAW)Common law doctrine that 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 got another job under the same constraints.

• Wrongful DischargeTermination of an individual’s employment for

reasons that are improper or illegal. Fortune v. National Cash Register


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Exceptions to Employment-at-WillExceptions to Employment-at-WillExceptions to Employment-at-WillExceptions to Employment-at-Will

Public PolicyPublic PolicyPublic PolicyPublic Policy

Good-Faith Good-Faith and Fair-and Fair-DealingDealing

Good-Faith Good-Faith and Fair-and Fair-DealingDealing

Implied Implied ContractContract

Implied Implied ContractContract

An employee can sue an employer if he or she was An employee can sue an employer if he or she was fired for refusing the employer’s demand to violate fired for refusing the employer’s demand to violate public policy (“break the law”).public policy (“break the law”).

An employee can sue an employer if he or she was An employee can sue an employer if he or she was fired for refusing the employer’s demand to violate fired for refusing the employer’s demand to violate public policy (“break the law”).public policy (“break the law”).

An employee can sue an employer if the employer’s An employee can sue an employer if the employer’s actions or inaction constitute an implied contract of actions or inaction constitute an implied contract of continuing employment.continuing employment.

An employee can sue an employer if the employer’s An employee can sue an employer if the employer’s actions or inaction constitute an implied contract of actions or inaction constitute an implied contract of continuing employment.continuing employment.

If the employer’s unruly behavior breaks a covenant If the employer’s unruly behavior breaks a covenant of good faith with the employee, then that employee of good faith with the employee, then that employee can sue the employer.can sue the employer.

If the employer’s unruly behavior breaks a covenant If the employer’s unruly behavior breaks a covenant of good faith with the employee, then that employee of good faith with the employee, then that employee can sue the employer.can sue the employer.


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Keys for Preparing a Defense Against Wrongful Discharge: Keys for Preparing a Defense Against Wrongful Discharge: The “Paper Trail”The “Paper Trail”

Keys for Preparing a Defense Against Wrongful Discharge: Keys for Preparing a Defense Against Wrongful Discharge: The “Paper Trail”The “Paper Trail”

Figure 16–2


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Employment-at-Will (EAW) RestrictionsEmployment-at-Will (EAW) RestrictionsEmployment-at-Will (EAW) RestrictionsEmployment-at-Will (EAW) Restrictions

• Constructive DischargeAn employer deliberately makes working conditions

intolerable for an employee in an attempt to get (to force) that employee to resign or quit.

• Just CauseReasonable justification for taking an employment-

related action.


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Criteria for Evaluating Just Cause and Due ProcessCriteria for Evaluating Just Cause and Due ProcessCriteria for Evaluating Just Cause and Due ProcessCriteria for Evaluating Just Cause and Due Process

Figure 16–3


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Due ProcessDue ProcessDue ProcessDue Process

• Due ProcessThe means used for individuals to explain and defend

their actions against charges or discipline.

• Distributive JusticePerceived fairness in the distribution of outcomes.

• Procedural JusticePerceived fairness of the process used to make

decision about employees.


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Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR)

OmbudsOmbuds OmbudsOmbuds

ArbitrationArbitrationArbitrationArbitration Peer Review PanelPeer Review PanelPeer Review PanelPeer Review Panel

Alternative Alternative Dispute Dispute

ResolutionResolution

Alternative Alternative Dispute Dispute

ResolutionResolution


16–15

Balancing Employer Security ConcernsBalancing Employer Security Concernsand Employee Rightsand Employee Rights

Balancing Employer Security ConcernsBalancing Employer Security Concernsand Employee Rightsand Employee Rights

• Right to PrivacyDefined in legal terms for individuals as the freedom

from unauthorized and unreasonable intrusion into their personal affairs.

• Privacy Rights and Employee Records:Access to personal information held by employer

Response to unfavorable information in records

Correction of erroneous information

Notification when information is given to a third party


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Employee Record FilesEmployee Record FilesEmployee Record FilesEmployee Record Files

Figure 16–4


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Employee RecordsEmployee RecordsEmployee RecordsEmployee Records

• ADA ProvisionsEmployee medical records are to be kept as separate

confidential files available under limited conditions specified in the ADA.

• Security of HR Records Restrict access to all HR records Utilize confidential passwords to HRIS databases Place sensitive information in separate files and restricted

databases Inform employees of types of data to retain Purge outdated data from records Release information only with employee’s consent


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Employee Free Speech RightsEmployee Free Speech RightsEmployee Free Speech RightsEmployee Free Speech Rights

Monitoring ofMonitoring ofE-Mail/Voice MailE-Mail/Voice Mail

Monitoring ofMonitoring ofE-Mail/Voice MailE-Mail/Voice Mail

Advocacy of Advocacy of Controversial ViewsControversial Views

Advocacy of Advocacy of Controversial ViewsControversial Views Whistle-BlowingWhistle-BlowingWhistle-BlowingWhistle-Blowing

Employee Employee Speech in the Speech in the

WorkplaceWorkplace

Employee Employee Speech in the Speech in the

WorkplaceWorkplace


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E-mail and Voice MailE-mail and Voice MailE-mail and Voice MailE-mail and Voice Mail

• Electronic Communications Policy Elements Voice mail, e-mail, and computer files are provided by the

employer and are for business use only.

Use of these media for personal reasons is restricted and subject to employer review.

All computer passwords and codes must be available to the employer.

The employer reserves the right to monitor or search any of the media, without notice, for business purposes.


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Recommended Employer Actions on E-mail and Voice MailRecommended Employer Actions on E-mail and Voice MailRecommended Employer Actions on E-mail and Voice MailRecommended Employer Actions on E-mail and Voice Mail

Figure 16–5


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Workplace MonitoringWorkplace MonitoringWorkplace MonitoringWorkplace Monitoring

Conducting Video Conducting Video Surveillance at WorkSurveillance at Work

Conducting Video Conducting Video Surveillance at WorkSurveillance at Work

Tracking Internet Tracking Internet UseUse

Tracking Internet Tracking Internet UseUse

Monitoring Employee Monitoring Employee PerformancePerformance

Monitoring Employee Monitoring Employee PerformancePerformance

Employee Employee PrivacyPrivacy

Employee Employee PrivacyPrivacy


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Employer Investigations Employer Investigations Employer Investigations Employer Investigations

Conducting Work-Conducting Work-Related InvestigationsRelated Investigations

Conducting Work-Conducting Work-Related InvestigationsRelated Investigations

Honesty and Honesty and Polygraph TestsPolygraph Tests

Honesty and Honesty and Polygraph TestsPolygraph Tests

Reviewing Unusual Reviewing Unusual BehaviorBehavior

Reviewing Unusual Reviewing Unusual BehaviorBehavior

Workplace Workplace ConductConduct

Workplace Workplace ConductConduct


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Means Used to Reduce Employee Theft Means Used to Reduce Employee Theft and Misconductand Misconduct

Means Used to Reduce Employee Theft Means Used to Reduce Employee Theft and Misconductand Misconduct

Figure 16–6


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Substance Abuse and Drug TestingSubstance Abuse and Drug TestingSubstance Abuse and Drug TestingSubstance Abuse and Drug Testing

• Drug-Free Workplace Act of 1988Requires government contractors to take steps to

eliminate employee drug use. Failure to do so can lead to contract termination.

Tobacco and alcohol do not qualify as controlled substances under the act, and off-the-job drug use is not included.

U.S. Department of Transportation (DOT) requires regular testing of truck and bus drivers, train crews, mass-transit employees, airline pilots and mechanics, pipeline workers, and licensed sailors.


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How Substance Abuse Affects Employers FinanciallyHow Substance Abuse Affects Employers FinanciallyHow Substance Abuse Affects Employers FinanciallyHow Substance Abuse Affects Employers Financially

Figure 16–7


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Drug Testing and Employee RightsDrug Testing and Employee RightsDrug Testing and Employee RightsDrug Testing and Employee Rights

• Conducting Drug TestsRandom testing of all employees at periodic intervalsTesting only in cases of probable causeTesting after accidents

• When to Test (Conditions)Job consequences outweigh privacy concernsAccurate test procedures are availableWritten consent of the employee is obtainedResults are treated confidentiallyEmployer has drug program, including an EAP.


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HR Policies, Procedures, and RulesHR Policies, Procedures, and RulesHR Policies, Procedures, and RulesHR Policies, Procedures, and Rules

• PoliciesGeneral guidelines that focus organizational actions.

“Why we do it”

• ProceduresCustomary methods of handling activities

“How we do it”

• RulesSpecific guidelines that regulate and restrict the

behavior of individuals. “The limits on what we do”


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Typical Division of HR Responsibilities: Typical Division of HR Responsibilities: Policies, Procedures, and RulesPolicies, Procedures, and Rules

Typical Division of HR Responsibilities: Typical Division of HR Responsibilities: Policies, Procedures, and RulesPolicies, Procedures, and Rules

Figure 16–8


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Employee HandbooksEmployee HandbooksEmployee HandbooksEmployee Handbooks

• Legal Review of LanguageEliminate controversial phrases in wording.Use disclaimers disavowing handbook as a contract.Keep handbook content current.

• ReadabilityAdjust reading level of handbook for intended

audience of employees.

• UseCommunicate and discuss handbook.Notify all employees of changes in the handbook.


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Communicating HR InformationCommunicating HR InformationCommunicating HR InformationCommunicating HR Information

CommunicatingCommunicatingHR InformationHR Information

CommunicatingCommunicatingHR InformationHR Information

Internal Internal Publications and Publications and

MediaMedia

Internal Internal Publications and Publications and

MediaMedia

Downward and Downward and Upward Internal Upward Internal CommunicationsCommunications

Downward and Downward and Upward Internal Upward Internal CommunicationsCommunications

Electronic Electronic CommunicationCommunication

Electronic Electronic CommunicationCommunication


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Employee DisciplineEmployee DisciplineEmployee DisciplineEmployee Discipline

•Discipline A form of training that enforces organizational rules.

•Positive Discipline Approach1. Counseling

2. Written Documentation

3. Final Warning (decision day-off)

4. Discharge


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Progressive Discipline ProcessProgressive Discipline ProcessProgressive Discipline ProcessProgressive Discipline Process

Figure 16–10


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Typical Division of HR Responsibilities:Typical Division of HR Responsibilities: Discipline Discipline

Typical Division of HR Responsibilities:Typical Division of HR Responsibilities: Discipline Discipline

Figure 16–9


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Reasons Why Discipline Might Not Be UsedReasons Why Discipline Might Not Be UsedReasons Why Discipline Might Not Be UsedReasons Why Discipline Might Not Be Used

• Organization culture of avoiding discipline• Lack of support by higher management• Guilt overcomes ability to discipline

• Fear of Loss of friendship• Avoidance of time loss• Fear of lawsuits


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The Hot Stove RuleThe Hot Stove RuleThe Hot Stove RuleThe Hot Stove Rule

• Good discipline (or a rule) is like a hot stove in that: It provides a warning (feels hot) It is consistent (burns every time) It is immediate (burns now) It is impersonal (burns all alike)


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Discharge: The Final Disciplinary StepDischarge: The Final Disciplinary StepDischarge: The Final Disciplinary StepDischarge: The Final Disciplinary Step

• Termination ProcessCoordinate manager and HR reviewSelect a neutral locationConduct the termination meetingHave HR discuss termination benefits.Escort the employee from the buildingNotify the department staff

• Separation agreementAn agreement in which a terminated employee

agrees not to sue the employer, in exchange for specified benefits.

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Chapter 16 Employee Rights and Discipline

Recruiting & HR