MGMT of Human Resources Chapter 12: Employee Rights and Responsibilities

A suggested analogy that may help managers understand what is required with the progressive discipline process is the "hot stove" analogy. Which of the following is NOT part of that analogy?

The employee should be able to have several minor offenses before a major offense

The "Weingarten Right" impacts the progressive discipline process for unionized employees by:

Allowing the employee to have union representation during any interviews

What is one example of behavior outside of work that is protected in California?

An employee's political affiliation

Exceptions to Employment at Will

Courts have established three basic exceptions to the at will doctrine: public policy, implied contract, and implied covenant of good faith.

How might workplace discipline be beneficial to the employee?

Discipline helps employees improve their performance

Which of the following acts, applying to federal government agencies, requires employers to provide employees with access to their personnel file?

The Privacy Act

What is the purpose of discipline?

To establish, communicate, and enforce standards of behavior and performance

Firing an employee before paying out their due commissions would be an example of:

bad faith termination

The Employment at Will doctrine has the following exceptions, aside from:

marital status exception

Which of the following is NOT a protected concerted activity?

posting maliciously about an employer who demoted you

Publicly posting about the need for better working conditions would be considered:

protected concerted activity

The following are all examples of the purpose of discipline within a company, EXCEPT:

punishment for low performance

The "hot stove" analogy includes all of the following, except:

the "three tap" rule

The purpose of discipline is:

to establish, communicate, and enforce standards of behavior and performance

Which of the following statements correctly explain an employer's ability to control or discipline an employee's behavior outside the workplace?

An employer's ability to control or discipline an employee's behavior outside the workplace varies by state, so it's important to know the state laws

Implied contract exception

An employer can create an implied contract of employment through language included in an employee handbook, policies, practices or written or verbal assurances. For example, a supervisor's comment that commits the employer to a term of employment—for example, "your career is with us!"—or a specific developmental process—"we have a defined development and discipline process"—may constitute an implied contract. That is, even if there is no written contract, the employee may have a valid expectation of continued employment or only for cause termination based on the supervisor's statements, an established practice or description of termination processes and procedures in the employee handbook. Although courts generally disregard overly broad language—i.e., promises of lifetime employment—as aspirational, it's best to avoid such statements and, further, to incorporate an unambiguous disclaimer on employee materials stating that comments, policies, and procedures do not create contractual rights.

Your department maintains a HR Q&A discussion thread on the company's intranet. One question asked was whether an employee can post negative comments about the company on social media. Your staff provided the following possible responses; which one would you advise them to use?

An employer cannot discipline an employee if the comments represent concerted activity

Which of the following is NOT a protected behavior outside the workplace in the state of California?

Illegal drug use

What advice would you give someone who wants to leave their job, and signed an Employment-at-Will agreement?

Since they signed an at-will agreement, they are free to leave the company at any time for any reason, but should still give proper notice they are leaving

Lila recently found out that her employer (a government agency) was keeping a file on her, collecting documentation of her work habits and each time she was late to work. The employer denied Lila access to look at her file. Which act is Lila's employer in violation of?

The Privacy Act

Step 4: Termination

The final step is not one to be taken lightly; DeCenzo, et.al. state that almost 90% of discrimination charges are related to termination.[3] Prior to making this decision the employee's immediate supervisor should review the employee's work history and disciplinary documentation with Human Resource management or other authority. For more on the documentation point, see below. Some cases—for example, sexual harassment, violence or threats of violence, theft—warrant immediate dismissal. Once the decision is made, a letter of termination should be delivered to the employee in person or via certified mail.

You are conducting a mock discipline exercise with a group of new supervisors and managers. In this scenario, the "employee" has committed what the company considers a serious offense. Which of the following responses is correct?

Depending on the severity of the offence, the employee should be suspended or terminated

Frisk Model

F: Facts evidencing the employee's unsatisfactory conduct R: Rule of authority violated by the employee's behavior I: Impact of the employee's unsatisfactory conduct on the workplace S: Suggestions to assist the employee in improving performance and directions K: Knowledge of the employee's right to respond to corrective documentation placed in the personnel file There are three key considerations in using this model: - The process is positive, with the emphasis placed on the employee's potential to change/improve behavior/performance rather than on the punishment. - This process is corrective; supervisors have a responsibility to support positive change. -The process is progressive, with the intent of increases in severity of communications and disciplined designed to incentivize corrective action

The Fair Credit Reporting Act (FCRA)

FCRA is a federal law that regulates the collection of consumers' credit information and access to their credit reports. Specific provisions related to employers: - An employer must obtain a candidate's written consent to request his or her credit report. - An employer must notify a candidate if the information in his or her credit report was the basis of a negative decision.

You're developing a presentation on need-to-know employee rights and want to cover recent state legislation. Which of the following is a law you should highlight?

Many states prohibit employers from requesting salary history information

Your employer, in California, has made it clear that they support candidate X in the upcoming election. You are worried they will find out that you support candidate Y, and will fire you. Would this be allowed?

No, this would not be allowed because California protects an employee's right to engage in political activity

Employee Polygraph Protection Act (EPPA)

The Act "prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act.

During onboarding, employees must sign an at-will agreement. What does this mean?

The employer may terminate an employee at any time for any reason (as long as that reason is not illegal), or for no reason at all

Public Policy Exception

The public policy exception protects employees from adverse employment actions that violate public interest. Although this exception is interpreted differently across states, there are four categories generally recognized in employment law

You post on social media: "I really hate my job. I am always working the night shift, and never get any day shifts. It's freezing cold in my office and I haven't gotten a raise in the last year. I don't know what to do to get better working conditions! Help!" Which of the following is an accurate statement?

You might be fired for slandering your employer

You and your co-worker are becoming increasingly upset over the long hours you are expected to work in order to have vacation time approved. You've decided to turn to social media to ask input from your network about ways to proceed so you can have better working conditions. Which of the following statements would be true in this situation?

Your employer could not discipline you since the comments represent concerted activity

Which of the following options is NOT an exception to the at will doctrine?

change in marital status

Which of the following are considered "protected concerted activity"?

Discussing with fellow employees the need for union protection to get better working conditions

Johannes is interviewing for a position with a huge private financial firm. The firm would like Johannes to take a polygraph test to see if he has ever been financially dishonest. Which act is this financial firm in violation of?

EPPA

Employee Social Media Use

Employee use of social media may or may not be protected as "concerted activity" by the National Labor Relations Act. The National Labor Relations Board (NLRB) notes that an employee has "the right to act with co-workers to address work-related issues. Examples include: talking with one or more co-workers about your wages and benefits or other working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, openly talking about your pay and benefits, and joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace." An employer "cannot discharge, discipline, or threaten [an employee] for, or coercively question you about," this type of activity. However, making statements that are "egregiously offensive or knowingly and maliciously false," or "publicly disparaging your employer's products or services without relating your complaints to any labor controversy" is not protected concerted activity.

You are briefing new HR employees on the concept of employment at will. The key point you want to communicate is that:

Employment at will gives both the employer and employee the right to terminate employment at any time without incurring legal liability

The Purpose of Discipline

Every effective organization needs to establish, communicate and enforce standards of behavior and performance. Some employees will learn and adopt the organization's standards as a matter of course—by observation, in conversation with management and peers, by referring to a code of conduct or employee handbook and other means. However, some individuals will disregard, fail to meet or otherwise refuse to adhere to established codes of conduct or performance standards. In these instances, it's essential to enforce desired behavior to avoid contaminating the culture and a domino effect where one dysfunctional employee derails a work group or department or, worse, prompts the departure of high-performance employees. In it's active or verb form, discipline is defined as "[training] (someone) to obey rules or a code of behavior, using punishment to correct disobedience." Merriam-Webster puts the emphasis on "training that corrects," and that is a key point; the purpose of discipline is not to punish, but to instruct and correct. As DeCenzo, Robbins, and Verhulst note: "The object of disciplinary action is not to punish employees, but to provide a consequence for an employee's undesirable behavior."That is, it is a necessary means to the desired end.

Step 2: Official Written Warning

If, by the time frame specified in step 1, behavior or performance is still not to expectations, it's time to issue a written warning, which will be included in the employee's personnel file. It may be advisable to consult with Human Resources staff at this point. The supervisor should document the unsatisfactory behavior or performance, including previous informal efforts to correct, and the current problem. As in step 1, the supervisor should meet with the employee to discuss a plan for improvement. The employee should sign the written warning and copies of the warning should be submitted to HR and, if applicable, sent to the union.

Implied Covenant of Good Faith

In some states, courts have applied an implied covenant of good faith and fair dealing to employment relationships. "Implied covenant of good faith" is "a general assumption of the law of contracts that people will act in good faith and deal fairly without breaking their word, using shifty means to avoid obligations or denying what the other party obviously understood." Based on this, courts have variously required just cause for termination and prohibited terminations made in bad faith or motivated by malice. An example of a bad faith termination is firing a salesperson who booked a record sale to avoid paying the commission.

A fellow coworker explains to you that they signed an at-will employment agreement upon being hired. They recently were offered a better position at a different company. They are wondering if they can quit their current position to take the new job. What is your advice to them?

Since they signed an at-will agreement, they are free to leave the company at any time for any reason, but should still give proper notice they are leaving

Your facilities are non-smoking. One of your staff asked whether the company can extend that ban to employee's off-duty behavior. You respond:

State laws, which vary by state, regulate an employer's ability to control or discipline an employee's off-duty behavior

Employee information is an area that is governed by federal, state and local laws. Key legislation includes the following:

The Fair Credit Reporting Act (FCRA) The Drug-Free Workplace Act (1988) The Privacy Act (1974) The Worker Adjustment & Retraining Notification (WARN) Act Employee Polygraph Protection Act (EPPA)

Step 1: Verbal Warning

The first step in the disciplinary process is for the employee's immediate supervisor to issue an unofficial verbal warning or what is sometimes referred to as a written verbal warning. Although the warning is verbal, the conversation should be documented. If behavior or performance improves, the documentation does not become part of the employee's permanent personnel file. Documentation should include the date, purpose and outcome of the meeting. - Meet with the employee and communicate clearly what rule was violated or what performance expectations wasn't met. - Discuss the performance gap or behavioral concern. Give the employee an opportunity to propose a resolution. - Restate the required behavior or performance expectations. - Provide a timeline and resources for improvement. - Report consequences of failure to improve. - Document conversation.

The Drug-Free Workplace Act (1988)

This Act requires federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant of $100,00 or more. The Act does not apply to those that do not have, nor intend to apply for, contracts/grants from the federal government. The Act also does not apply to subcontractors or subgrantees.

The Privacy Act (1974)

This act, which applies only to federal government agencies, requires employers to provide employees with access to their personnel file. State law may provide private sector and state and local government employees rights similar to The Privacy Act A number of states and localities (currently 17 states and 19 localities) prohibit employers from requesting a job applicant's salary history. Some states—California, for example—also prohibit an employer from using an applicant's pay history as a basis for compensation if volunteered. Thirteen states have "ban the box" laws that prohibit private employers from asking about an applicant's criminal history on a job application and 30 states have laws that apply this ban to government employers

A social media marketing employee (who had signed an at-will agreement upon hire) just landed a huge sales contract, and expects to earn over $60,000 in commission at the end of this quarter. He received notification that the company is downsizing, and his employment was being terminated immediately. Which of the following statements best applies?

This would not be allowed, because of the implied covenant of good faith exception

What is generally the correct order for progressive discipline process?

Verbal warning, written warning, suspension, termination

Which of the following is NOT a consequence of at-will employment?

Employees can only be terminated for "just cause," like unsatisfactory performance or misconduct

The ____________ is a federal law that regulates the collection of consumers' credit information and access to their credit reports

FCRA

The federal law which requires that employers must obtain written consent to request a candidate's credit report and must notify that candidate if the information found in their credit report was the basis for any negative decisions is:

FCRA

How does the "Weingarten Right" impact the progressive discipline process for unionized employees?

If the employee is protected by a union, it allows the employee to have union representation during any investigative interviews

Step 3: Suspension/Final Warning

If, by the time frame specified in step 2, behavior or performance is still not to expectations, an employee may be suspended from work for a time frame ranging from a day to weeks, depending on the employer's policy and the scenario. Note that if the infraction was serious, it might warrant suspension as a first step. Also, some organization's skip this step entirely or to instead issue a final warning. The immediate supervisor should conduct any necessary investigations and summarize previous progressive discipline. The supervisor should again discuss the situation with the employee, specify the time frame for suspension or providing the final warning in writing and indicating that, unless there is a course correction, the next step is termination. As in step 2, the employee should sign the suspension/final warning and copies should be submitted to HR and, if applicable, sent to the union.

Progressive Discipline

In order to avoid perceptions of arbitrary or discriminatory discipline, HR management should establish a progressive discipline policy and process. A critical implementation step: training supervisors and managers to overcome the human tendency to avoid difficult conversations. An analogy that may help managers understand what's required is the "hot stove rule,"[1] that suggests viewing administration of discipline as similar to touching a hot stove. Specifically, an employee being disciplined should: - Experience an immediate and painful response; there should be no question regarding cause and effect - Have advance warning; that is, he knows what will happen when he touches a hot stove - Experience the result consistently; every time he touches a hot stove, he gets burned - Experience the result as impersonal; the burn is related to his action, not his personality.

Your staff understands the basic concept of employment at will, so it's time to move on to exceptions. Which of the following points should you communicate?

The presumption of at will employment can be violated by a supervisor's statement that employment is for a specific term

You're introducing the company's disciplinary process to a group of new supervisors and managers who seem to be uncomfortable with the idea of "disciplining" their former peers. You clarify that:

The purpose of discipline is not to punish, but to instruct and correct

The Worker Adjustment & Retraining Notification (WARN) Act

This act doesn't protect employee information but rather creates a duty for employers to inform employees of a plant closure or significant layoff. Specifically, the Act requires employers to give employees 60 days notice of a planned closure or layoff affecting 50 or more workers.

The at will employment doctrine states that

employment is for an indefinite period of time and may be terminated by either the employer or employee. The National Conference of State Legislatures (NCSL) notes that the presumption that employment relationships are "at-will" is in effect in all U.S. states except Montana. "At will" employment is a uniquely U.S. construct. In most countries, employees can only be terminated for cause. In the EU and many other countries, a written employment contract is required by law and the contract can't be changed except by mutual agreement Practically speaking, "at will" means that an employer can terminate an employee at any time for any reason (except an illegal one) or for no reason without incurring legal liability. This freedom also applies to employees, who can leave a job at any time for any or no reason with no adverse legal consequences. Critically, "at-will also means that an employer can change the terms of the employment relationship with no notice and no consequences." For example, an employer can change salary or commission structure and modify or eliminate benefits. While this type of change may not be illegal, it's not advisable, since employees are free to reject the revised terms and leave. However, the rule does "[leave] employees vulnerable to arbitrary and sudden dismissal, a limited or on-call work schedule depending on the employer's needs, and unannounced cuts in pay and benefits." Although at-will is the employment default, that can be modified by contract. For example, employees who are represented by unions will generally be protected by a collective bargaining agreement that requires "just cause" for termination. Senior executives may also have written contracts requiring "good cause" for termination. Factors that would constitute cause include unsatisfactory performance, misconduct and economic necessity; these factors may be details in the bargaining agreement or employment contract.