Copyright Atomic Dog Publishing, 2004 Chapter 11 Complying with Workplace Justice Laws.

Copyright Atomic Dog Publishing, 2004

Chapter 11Complying with Workplace Justice Laws


Outline

• 11-1 Gaining Competitive Advantage

• 11-2 HRM Issues and Practices

• 11-3 The Manager’s Guide


11-1 Gaining Competitive Advantage

• Workplace justice laws Deal with the fairness of organizational practices that dictate

the day-to-day treatment of employees

• Competitive advantage can come from: Lower litigation costs Positive employee attitudes and behavior An excellent company image


11-2 HRM Issues and Practices

• Workplace justice and employment discrimination Sexual harassment Pregnancy discrimination Family and medical leave Fetal protection policies Discharge and discrimination Layoffs and discrimination Early retirement and discrimination

• Employee privacy rights

• Wrongful termination and employment-at-will


Sexual Harassment

• A long-standing problem

• Affecting a large percentage of workers, especially women

• A form of sex discrimination and violates Title VII of the Civil Rights Act

• Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature


Problems Caused by Sexual Harassment

• Increase in employee turnover

• Increase in absenteeism

• Decrease in employee morale

• Lack of effective teamwork

• Poor productivity

• Employee stress and/or psychological problems

• Costly


EEOC Guidelines on Sexual Harassment

• Define sexual harassment and stress that such conduct will not be tolerated

• Establish a complaint procedure

• Establish a time frame for investigation

• Establish appropriate penalties

• Ensure confidentiality

• Provide protection against retaliation


Forms of Sexual Harassment

• Quid pro quo Latin for “this for that” The term refers to a situation in which an employee or

applicant must provide sexual favors in order to be hired, promoted, granted a pay raise, or allowed to keep a job

• Hostile environment Employees are subjected to unwelcome, intimidating working

conditions


Steps an Employer Should Take Dealing with Sexual Harassment

• Step 1: Establish a written sexual harassment policy

• Step 2: Provide supervisory training

• Step 3: Establish investigative guidelines that maintain employee confidentiality

• Step 4: Establish a committee to investigate claims Committee should consist of both men and women

• Step 5: Establish a means of detecting unreported cases of sexual harassment Examples—attitude surveys and exit interviews


Pregnancy Discrimination Act of 1978

• A form of sexual discrimination and therefore illegal

• Firms may not discriminate against employees on the basis of pregnancy, childbirth, or related medical conditions

• Employees who are temporarily unable to perform their jobs adequately because of a pregnancy-related condition must be treated in the same manner as employees who are temporarily disabled for other reasons


Family & Medical Leave Act of 1993

• Includes all employers of 50 or more employees

• Requires the employer to grant workers up to 12 weeks of unpaid leave per year

• FMLA may be used to care for a newborn child, an ill family member, or the employee’s own illness


Fetal Protection Policies (FPPs)

• Exclude women of childbearing age from jobs that could cause potential reproductive hazards Examples—those jobs involving toxins and those that can

cause sterility, infertility, sperm abnormality, stillbirth, miscarriage, birth defects, or damage to sexual organs

• Also excludes all women regardless of marital status, use of birth control, or childbearing intention

• Women are exempt only if they can show proof of surgical sterilization

• FPPs put management between “a rock and a hard place”


Guidelines for Dealing with Fetal Protection Policies

• Support federal research on reproductive risks

• Estimate the extent of health risk for the firm’s employees

• Fully inform employees about health risks

• Consider technological controls

• Reduce employee exposure to toxic substances

• Conduct genetic testing

• Implement a fetal protection policy


Discharge and Discrimination

• Employee misconduct Just cause Due process Progressive discipline system

• Poor performance Last resort Discharge was performance based Non-discriminatory Employer must provide adequate documentation


Layoffs and Discrimination

• Most frequent legal challenge—age discrimination

• Employer must demonstrate that the layoff was not simply a guise for discrimination

• Companies must provide adequate documentation to justify decision

• Must implement layoff in a nondiscriminatory manner, and be able to produce documentation


Early Retirement and Discrimination

• Potential age discrimination suits

• A firm can avoid such charges by asking early retirees to sign written waivers of their right to sue under the ADEA

• Older Workers Benefit Protection Act (OWBPA) Enacted in 1990 Written waivers must meet the standards stipulated by the

OWBPA


Provisions of OWBPA & Waivers

• Be clearly written (i.e., understood by an ordinary person)

• Inform employees of their rights under ADEA and OWBPA

• State that employees are not waiving their rights to claims occurring after the waiver is signed

• Provide the worker with something of value for taking early retirement

• Give the employee 21 days to consider the waiver

• Allow employees to revoke their decision up to 7 days after signing the waiver


Employee Privacy Rights

• Intrusions on an employee’s privacy can cause: Resentment A climate of fear and suspicion Morale may be negatively affected Increased turnover Increased absenteeism Reduced productivity Expensive lawsuits


Information That Could Violate Employee Privacy Rights

• Home ownership

• Previous marriages

• Sexual orientation

• Parents occupations

• Previous arrest records


Privacy Act of 1974

• Applies to the public sector employees

• Employees have the right to: Determine what information is being kept on them by their

employers Review that information Correct erroneous information Prevent the information from being used for a purpose other

than that for which it was collected


Freedom of Information Act of 1966

• Purpose of the act is to make most government records available to the public

• Any individual may gain access to these records with proper authorization

• Exceptions exist for personnel files and medical information The public may still be given access to this information if its

right to know outweighs the individual’s right to privacy


Searches

• Criteria an employer’s search must meet: Company must have a reasonable basis for conducting the

search A set of written guidelines, issued by the company, should

inform employees of its search policy The person conducting the search should take all

precautions to ensure the search is not conducted offensively or abusively


Surveillance and Monitoring

• Methods include: Monitoring phone calls, e-mail, and Internet use Watching employees through closed-circuit televisions Using private investigators to watch employees outside the

workplace


Recommendations for Implementing Surveillance & Monitoring Practices

• Let employees know that they are subject to surveillance and monitoring

• Explain to employees why surveillance/monitoring is taking place and how it will be implemented

• Make sure that these activities are conducted for a job-related reason

• Do not monitor restrooms or lounges unless there is a legitimate need to do so

• Let employees participate in developing monitoring and surveillance policies


Workplace Rules

• Controversial workplace rules: No smoking rules Rules governing romantic relationships Employee misconduct outside the workplace


Employment-at-Will

• Employers are free to discharge their employees for any reason, even an unfair one, unless the discharge is limited by contract by federal or state statutes


Exceptions to the Employment-at-Will Doctrine

• The public policy exception Any doctrine that serves the needs of society; if public policy

is violated, society will suffer harm

• The implied contract exception Statements written in an employee handbook or made during

a job interview can imply contractual agreements

• The good faith and fair dealing exception Occurs when there is no implied contract between the

employer and employee but an implied promise of good faith and fair dealing


Preventing Wrongful Termination

• Avoid making any statements that promise long-term employment Include an at-will statement on the application form Place a disclaimer in the employee handbook

- The handbook is provided as a matter of information and is not to be interpreted as a contract

Train interviewers

• Ensure that discipline and discharge practices are fair Make sure the fairness of any discharge can be proven

through documentation


11-3 The Manager’s Guide—Line Managers & Workplace Justice

• Communicate workplace policies and procedures

• Create a good work environment

• Deal effectively with possible policy violations


HRM Department & Workplace Justice

• Implement discipline and discharge policies

• Develop a conflict resolution mechanism

• Assist managers with workplace justice-related issues


Conducting a Disciplinary Investigation

• Step 1: Get the facts

• Step 2: Review applicable rules

• Step 3: Meet with the employee

• Step 4: Decide what kind of discipline, if any, to recommend

• Step 5: Provide proper documentation


Investigating Claims of Sexual Harassment

• Step 1: Determine if the alleged behavior has actually occurred.

• Step 2: If the alleged behavior has occurred, determine if it could be legally construed as sexual harassment

• Step 3: Determine appropriate action to take


Conducting a Disciplinary Conference

• Step 1: Get the facts

• Step 2: Arrange for the interview

• Step 3: Put the employee at ease

• Step 4: State the facts of the case

• Step 5: Ask for reasons

• Step 6: State the company policy that has been violated

• Step 7: State the reason for the policy and the possible harm caused by the employee’s violation


Conducting a Disciplinary Conference

• Step 8: Get the worker to agree on the problem

• Step 9: If disciplinary action is needed, state the action and the reasons for it

• Step 10: Involve the employee in a problem-solving discussion

• Step 11: Have the employee summarize the problem and the agreed-on solution

• Step 12: Agree on a follow-up date

• Step 13: End the discussion on a positive note

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Copyright Atomic Dog Publishing, 2004 Chapter 11 Complying with Workplace Justice Laws.

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