Chapter 13 Employee Rights and Discipline

Copyright © 2004 South-Western. All rights reserved. 13–2

ObjectivesAfter studying this chapter, you should be able to:

1. Explain the concepts of employee rights and employer responsibilities.

2. Explain the concepts of employment-at-will, wrongful discharge, implied contract, and constructive discharge.

3. Identify and explain the privacy rights of employees.

4. Explain the process of establishing disciplinary policies, including the proper implementation of organizational rules.


Objectives (cont’d)After studying this chapter, you should be able to:

5. Discuss the meaning of discipline and how to investigate a disciplinary problem.

6. Differentiate between the two approaches to disciplinary action.

7. Identify the different types of alternative dispute resolution procedures.

8. Discuss the role of ethics in the management of human resources.


Employee Rights and Privacy

• Employee RightsGuarantees of fair treatment from employers,

particularly regarding an employee’s right to privacy.

• NegligenceFailure to provide reasonable care where such failure

results in injury to consumers or other employees.

• Employment-at-Will PrincipleThe 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.


Implied Covenant

Employment-at-Will Doctrine and Wrongful Discharge

Violation of Public Policy

Implied ContractExceptions to

Employment-at- Will


Exceptions to Employment-at-Will

• Violations of Public PolicyWrongful discharge of an employee by an employer

for refusal commit an act that to violates the law.

• Implied ContractWrongful discharge contrary to an employer’s oral or

written promises of continued employment.

• Implied CovenantWrongful discharge for a lack of fair dealing on part of

employer.

Presentation Slide 13–1


Discharges That Violate Public Policy

• An employer may not terminate an employee for: Refusing to commit perjury on the employer’s behalf Cooperating with a government agency in the

investigation of a charge or giving testimony Refusing to violate a professional code of conduct Reporting OSHA infractions Refusing to support a law or a political candidate favored

by the employer “Whistle-blowing,” or reporting illegal conduct by the

employer Informing a customer that the employer has stolen

property from the customer Complying with a summons to jury duty

Figure 13.1


Avoiding Wrongful Employment Termination Lawsuits

• Terminate an employee only if there is an articulated reason.

• Set and follow termination rules and schedules.

• Document all performance problems.• Be consistent with employees in similar

situations.

Figure 13.2


Illegal Employee Dismissals

• Constructive DischargeAn employee voluntarily terminates his or her

employment because of harsh, unreasonable employment conditions placed on the individual by the employer.

Employers cannot accomplish covertly what they are prohibited by law from achieving overtly. Courts have generally adopted a “reasonable person”

standard for upholding constructive discharge claims.


Illegal Employee Dismissals (cont’d)

• Retaliation DischargeTitle 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.

Proper handling of these employees involves: Taking no adverse employment action against

employees when they file discrimination charges.

Treating the employees consistently and objectively.

Harboring no animosity toward the employees when they file discrimination lawsuits.


Plant Closing Notification

• Workers’ Adjustment Retraining and Notification Act (WARN)-1989Requires organizations with more than 100

employees to give employees and their communities sixty days’ notice of any closure or layoff affecting fifty or more full-time employees. Terminated employees must be notified individually in

writing.

The act allows several exemptions, including “unforeseeable circumstances.”


Privacy Concerns


• Substance Abuse and Drug Substance Abuse and Drug TestingTesting

• Searches and SurveillanceSearches and Surveillance• Access to Personnel FilesAccess to Personnel Files• E-mail and Voice MailE-mail and Voice Mail• Conduct Outside the Conduct Outside the

WorkplaceWorkplace• Genetic TestingGenetic Testing

• Substance Abuse and Drug Substance Abuse and Drug TestingTesting

• Searches and SurveillanceSearches and Surveillance• Access to Personnel FilesAccess to Personnel Files• E-mail and Voice MailE-mail and Voice Mail• Conduct Outside the Conduct Outside the

WorkplaceWorkplace• Genetic TestingGenetic Testing

Employee Employee PrivacyPrivacyversusversus

Employer Employer ObligationsObligations

Employee Employee PrivacyPrivacyversusversus

Employer Employer ObligationsObligations


Substance Abuse and Drug Testing

• Drug-Free Workplace Act (1988)• Sensitive Position Individuals

Employees who can be required to submit to a drug test even without an “individualized suspicion”of drug usage.

• Job ApplicantsApplicants can be required to submit to a drug test.


Substance Abuse and Drug Testing (cont’d)• ADA and Drug Addiction

Rehabilitated drug users are considered disabled.Current drug users are not covered by ADA.

• Issues in Drug TestingReasonable suspicion or probable cause

requirements Impairment (fitness for duty), mandatory and random

drug testingValidity and reliability of drug testsChain-of-custody of test samples


Instances of Employer Drug Testing

• Pre-employment screening of job applicants• Individuals in safety-sensitive positions• Individuals in security-sensitive positions• Reasonable suspicion of drug usage• Post-accident testing for presence of drugs

• Return-to-duty testing to clear return to work• Follow-up after initial testing failure• Random testing to deter drug use

Figure 13.3


Employee Searches and Surveillance

• The search policy should be widely publicized and should advocate a probable or compelling reason for the search.

• The search policy should be applied in a reasonable, evenhanded manner.

• Where 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.

HRM 1


Right-to-Privacy Laws

Figure 13.4a


Right-to-Privacy Laws (cont’d)

Figure 13.4b


Personnel Files: Policy Guidelines

• Ensure compliance with applicable state laws.

• Define what information is to be kept in employee files.

• Develop categories of personnel information, depending on legal requirements and organizational needs.

• Specify where, when, how, and under what circumstances employees may review or copy their files.

• Identify individuals allowed to view personnel files.

• Prohibit the collection of information that could be viewed as discriminatory or could form the basis for an invasion-of-privacy suit.

• Audit employment records on a regular basis to remove irrelevant, outdated, or inaccurate information.

Figure 13.5


E-Mail, Internet, and Voice Mail: Policy Guidelines

• Ensure compliance with federal and state legislation.

• Specify the circumstances, if any, under which the system can be used for personal business.

• Specify that confidential information not be sent on the network.

• Set forth the condition under which monitoring will be done—by whom, how frequently, and with what notification to employees.

• Specify that e-mail and voice mail information be sent only to users who need it for business purposes.

• Expressly prohibit use of e-mail or voice mail to harass others or to send anonymous messages.

• Make clear that employees have no privacy rights in any material delivered or received through e-mail or voice mail.

• Specify that employees who violate the policy are subject to discipline, including discharge.

Figure 13.6


A Disciplinary Model

Figure 13.7

Organization Organization discipline discipline

policypolicy

Organization Organization discipline discipline

policypolicyDefinition of Definition of

disciplinediscipline

Definition of Definition of disciplinediscipline

Violation of Violation of organizational organizational

rulesrules

Violation of Violation of organizational organizational

rulesrules

Investigation Investigation of employee of employee

offenseoffense

Investigation Investigation of employee of employee

offenseoffense

Disciplinary Disciplinary InterviewInterview

Disciplinary Disciplinary InterviewInterview

Progressive Progressive disciplinediscipline

Progressive Progressive disciplinediscipline Due ProcessDue ProcessDue ProcessDue Process Just causeJust causeJust causeJust cause

DischargeDischargeDischargeDischarge



Common Disciplinary Problems• Attendance

Unexcused absence

Chronic absenteeism

Unexcused/excessive tardiness

Leaving without permission

• Work Performance Not completing work

assignments

Producing substandard products or services

Not meeting established production requirements

• Dishonesty And Related Problems Theft

Falsifying employment application

Willfully damaging organizational property

Punching another employee’s time card

Falsifying work records

Figure 13.8a


Common Disciplinary Problems (cont’d)

• On-the-job Behaviors Intoxication at work

Insubordination

Horseplay

Smoking in unauthorized places

Fighting

Gambling

Failure to use safety devices

Failure to report injuries

Carelessness

Sleeping on the job

Using abusive or threatening language with supervisors

Possession of narcotics or alcohol

Possession of firearms or other weapons

Sexual harassment

Figure 13.8b


Implementing Organizational Rules

Publish Widely Keep in Writing

Explain Reasons Remind/Restate

Get Signed Statementsof Understanding

Review Regularly Be Reasonable

Guidelines Guidelines for the for the

ImplementationImplementationof of

Organizational Organizational RulesRules


The Hot-Stove Approach to Rule Enforcement

• Hot-Stove RuleRule of discipline that can be

compared with a hot stove in that it gives warning, is effective immediately, is enforced consistently, and applies to all employees in an impersonal and unbiased way.


Disciplinary Action for Violation of Rules

• Are rules fair and reasonable?

• Have rules been communicated sufficiently to make employee aware of them?

• Have rules been enforced previously?

• Should and did employee receive prior warning?

• Is employee being singled out as an example?



Discipline

• Definitions of Discipline

Treatment that punishes.

Orderly behavior in an organizational setting.

Training that molds and strengthens desirable conduct or corrects undesirable conduct and develops self-control.

13–28Copyright © 2004 South-Western. All rights reserved.

Documentation of Employee Misconduct

• Date, time, and location of the incident(s)• Description of the problem/misconduct• Consequences of misconduct on employee and/or work

unit• Prior discussions with employee about conduct

• Disciplinary action to be taken and specific improvement expected

• Consequences for employee if behavior is not changed and follow-up date

• Reaction of employee to supervisor’s efforts• Names of witnesses to incident



Considerations in Disciplinary Investigations• In very specific terms, what is the offense

charged?• Did the employee know he or she was doing

something wrong?• Is the employee guilty?• Are there extenuating circumstances?• Has the rule been uniformly enforced?• Is the offense related to the workplace?• What is the employee’s past work record?

Figure 13.9


The Investigative Interview

• Conduct of an InterviewConcentrate on how the offense violated the

performance and behavior standards of the job.Avoid getting into personalities or areas unrelated to

job performance.Give the employee must be given a full opportunity to

explain his or her side of the issue.

• NLRB v Weingarten,Inc.The Supreme Court upheld an NLRB ruling in favor of

the employee’s right to representation during an investigative interview in a unionized organization.


Approaches to Discipline

• Progressive DisciplineApplication of corrective measures by increasing

degrees. Employees always know where they stand regarding

offenses. Employees know what improvement is expected of them. Employees understand what will happen next if

improvement is not made.

• Positive, or Non-punitive, DisciplineDiscipline that focuses on the early correction of

employee misconduct, with the employee taking total responsibility for correcting the problem.


Positive Discipline Procedure

Figure 13.10


Disciplinary Action for Unsatisfactory Performance

• Do clear and objective performance standards exist?

• Has employee received proper orientation and training?

• Is the unsatisfactory performance caused by conditions beyond employees’ control?

• Has employee been given adequate warning and time to improve performance?

• Are the other employees meeting performance standards?


Considerations When Discharging an Employee

• What is the employee’s length of service?

• What is the employee’s previous service record?

• Did employee receive warning and lesser penalties, i.e., progressive discipline?

• Did employer use every means possible to avoid the discharge?

• Are there any evidences of prejudice or bias toward employee?


“Just Cause”Discharge Guidelines

• Was the employee warned of the disciplinary consequences of misconduct?

• Were management’s requirements of the employee reasonable?

• Was it established that the employee’s performance was unsatisfactory?

• Was an investigation conducted in a fair and objective manner?

• Is there sufficient evidence of proof of guilt as charged?

• Was the employee treated the same as other employees in similar circumstances?

• Did the discharge fit the misconduct, the employee’s service record, and any mitigating circumstances?

Figure 13.11


Due Process

• An employee’s right to present his or her position during a disciplinary action.To know job expectations and the consequences of

not fulfilling those expectations.To consistent and predictable management action for

the violation of rules.To fair discipline based on facts,

to question those facts, and the right to present a defense.

To appeal disciplinary action. The right to progressive discipline.


Alternative Dispute Resolution

• “ADR”The term applied to different types of employee

complaint or dispute-resolution procedures.

• ADR ProceduresStep-Review Systems

Peer-Review Systems

Open-Door Policy

Ombudsman System

Mediation

ArbitrationPresentation Slide 13–6


Alternative Dispute Resolution Procedures

• Step-Review SystemSystem for reviewing employee complaints and

disputes by successively higher levels of management.

• Peer-Review SystemA group composed of equal numbers of employee

representatives and management appointees.Functions as a jury since its members weigh

evidence, consider arguments, and after deliberation, vote independently to render a final decision.


Conventional Step-Review Appeal Procedure

Figure 13.12


Additional ADR Procedures

• Open-Door PolicyA policy of settling grievances that identifies various

levels of management above the immediate supervisor for employee contact.

• OmbudsmanA designated individual from whom employees may

seek counsel for the resolution of their complaints.They do not have power to overrule the decision

made by an employee’s supervisor, but they should be able to appeal the decision up the line if they believe an employee is not being treated fairly.


Third-party Dispute Resolution

• MediationThe use of an impartial neutral to reach a

compromise decision in employment disputes

• MediatorA third party in an employment dispute who meets

with one party and then the other in order to suggest compromise solutions or to recommend concessions from each side that will lead to an agreement.


Third-party Dispute Resolution (cont’d)

• ArbitrationThe use of an impartial neutral party as decision

maker to resolve an employment labor dispute by imposing a binding final decision on all parties involved in the dispute.

• ArbitratorThird-party neutral who resolves a labor dispute by

issuing a final decision in the disagreement.


Managerial Ethics in Employee Relations

• EthicsThe set of standards of conduct and moral judgments

that help to determine right and wrong behavior.Provides cultural guidelines—organizational or

societal—that help decide between proper or improper conduct.

• Code of EthicsA written set of standards of conduct (ethical values)

that governs relations with employees and the public.Provides a basis for the organization, and individual

managers, to evaluate their plans and actions.

Chapter 13 Employee Rights and Discipline

Recruiting & HR

Transcript of Chapter 13 Employee Rights and Discipline