Ch. 13 Employee Rights and Discipline

Electronic Communication Privacy Act (1986)

Prohibits the interception, recording, or disclosure of wire, electronic, and aural communications through any electronic, mechanical, or other device. An interception takes place when an employer monitors a telephone call while it is occurring. Permits employer monitoring for legitimate business reasons.

Laws that Protect Whistle-blowers

- Federal Whistleblower Protection Act (WPA) - The Notification and Federal Employee Anti-discrimination and Retaliation Act (No FEAR Act): requires federal agencies to be more accountable for violations of anti-discrimination and whistleblower protection laws. - The False Claims Act (FCA) and Dodd-Frank Wall Street Reform and Consumer Protection Act protect and financially reward whistleblowers who expose fraud related to governmental programs and wrongdoing related to consumer financial products or services, respectively. - OSHA administers the whistle-blowing provisions in 15 federal statutes protecting whistleblowers in such industries as airline, nuclear power, and public transportation.

Impairment Testing (also called fitness-for-duty or performance-based testing)

- It measures whether an employee is alert enough to work - One advantage of impairment testing is that it focuses on workplace of problems rather than off-duty behavior.

Ombudsman system

A designated individual from whom employees may seek counsel for resolution of their complaints

Peer review systems

A system for reviewing employee complaints that utilizes a group composed of equal numbers of employee representatives and management appointees. The group weighs evidence, considers arguments, and, after deliberation, votes to render a final decision.

Positive Discipline

A system of discipline that focuses on early correction of employee misconduct, with the employee taking total responsibility for correcting the problem

Alternative dispute resolution (ADR)

A term applied to different employee complaint or dispute resolution methods that do not involve going to court

Discharges that violate public policy

An employer may not terminate an employee for: - Refusing to commit perjury in court 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 Occupational Safety and Health Administration (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 summons to jury duty

Employee rights

Guarantees of fair treatment that become rights when they are granted to employees by the courts, legislatures, or employers

Due Process

Procedures that constitute fair treatment, such as allowing an employee to tell his or her story about an alleged infraction and defend against it

Family Education Rights and Privacy Act -- The Buckley Amendment (1974)

Prohibits educational institutions from supplying information about students without prior consent. Students have the right to inspect their educational records.

The Electronic Communications Privacy Act (ECPA)

Restricts employers from intercepting wire, oral, or electronic communications

Negligence

The failure to use a reasonable amount of care when such failure results in injury to another person - A general responsibility exists for employers to exercise reasonable care in preventing employees from intentionally harming other employees during the course of their work. - Negligent-hiring lawsuits have forced managers to take extra care in the employment and management of their workforce

Employment-at-will relationship

The 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. - To make employees aware the employment-at-will doctrine, most employers are careful to point out, in their written policies, in handbooks, and on job applications that their relationship with their employees is an at-will relationship. - People cannot be fired because of certain characteristics such as their race, gender, and so forth.

Non-Disclosure of information agreement

This provision forbids employees from revealing proprietary information outside the company, either during or following their employment.

Intellectual property agreement

This provision grants to an employer the ownership of an idea, invention or process, or working of authorship developed by the employee during the time of employment.

Noncompete agreement

This provision prevents ex-employees from either becoming a competitor or working for a competitor for a designated period of time, for example, one or two years. - Noncompete agreements are designed to protect confidential information, customer relations, and other valuable assets.

Open-door policy

a policy of settling grievances that identifies various levels of management above the immediate supervisor for employee contact

Ethics

a set of standards of conduct and moral judgments that help to determine right and wrong behavior

Mediation

the use of impartial neutral to reach a compromise decision in employment disputes

Worker Adjustment and Retraining Notification Act (WARN)

requires organizations with more than 100 employees to to give employees and their communities 60 days' notice of any closure or layoff affecting 50 or more full-time employees

The documentation need not be lengthy, but to be complete it should include the following eight items

1. The date, time, and location of the incident(s) 2. The behavior exhibited by the employee (the problem) 3. The consequences of that action of behavior on the employee's overall work performance and/or the operation of the employee's work unit 4. Prior discussion (s) with the employee about the problem 5. The disciplinary action to be taken and the improvements expected should be documented 6. The consequence of failing to make the improvements be a certain follow-up date 7. The employee's reaction to the supervisor's attempt to change his or her behavior 8. The name of witnesses to the incident (if applicable)

Positive discipline is implemented in 3 steps

1. The first is the conference between the employee and the supervisor to find a solution to the problem. 2. If improvement does not occur after the first step, the supervisor holds a second conference with the employee to determine why the solution agreed to in the first conference did not work. 3. When both conferences fail to produce the desired results, the third stage is to give the employee a one-day decision making leave (a paid leave).

The following suggesting can help HR managers and their firms when they are considering the rules the organization should adopt and how they should be implemented

1. The rules must be reasonable and relate to the safe and efficient operation of the organization. 2. The rules as well as the consequences for breaking them should be written down and widely disciplinary actions taken against employees are reversed. 3. The rules should be clearly explained. Employees are more likely to accept a rule if they understand the reason behind it. 4. Employees should sign a document stating that they have read and understood the organizational rules. 5. The rules should be reviewed periodically--perhaps annually--especially those rules critical to work success.

Wrongful discharge

A discharge, or termination, of an employee that is illegal

Privacy Act (1974)

Applies to federal agencies and to organizations supplying goods or services to the federal government; gives individuals the right to examine references regarding employment decisions; allows employees to review their personnel readdress for accuracy. Employers who willfully violate the act are subject to civil suits.

Whistle-blowing

Complaints to governmental agencies by employees about their employer's illegal or immoral acts or practices - The law encourages whistle-blowing by motivating publicly held companies to promote a more open culture that is sympathetic to employees who have a "reasonable belief" that a law has been violated.

Psychological Contract

Expectations of fair exchange of employment obligations between an employee and employer - In exchange for their talents, energies, and technical skills, workers expect employers to provide fair compensation, steady work, job training, and promotions. - Employees also expect to be treated with dignity and their firms to adhere to sound business practices.

Explicit Contracts

Explicit employment contracts are formal written (signed) agreements that grant to employees and employers agreed-upon employment benefits and privileges.

Non-Piracy agreements

These agreements prohibit ex-employees from soliciting clients or customers of former employers for a specific period of time and from disclosing or making use of confidential employer information.

Step-review systems

a system for reviewing employee complaints and disputes by successively higher levels of management

Mediator

a third party in an employment dispute who meets with one party and then the other to suggest compromise solutions or to recommend concessions from each side that will lead on to an agreement

Discipline

a tool, used to correct and mold the practices of employees to help them perform better so they conform to acceptable standards

Constructive Discharge

- An employee's voluntary termination of his or her employment because of harsh, unreasonable employment conditions placed on the individual by the employer. - To prove a constructive discharge, the employee generally has to show that she gave the employer written notice that the conditions were intolerable and that it did nothing to correct the conditions.

Drug-Free Workplace Act of 1988

- Private employers generally have a right to require employees to submit to the tests, but unionized workforces do not; drug-testing programs for these employees must be negotiated by their unions. - Some recent studies have failed to show that drug testing makes the workplace safer and that alcohol appears to create more problems than drugs.

Implied Contract

- These implied contractual rights can be based on either oral written statements made during the pre-employment process or subsequent to hiring. - Often these promises are contained in employee handbooks, HR manuals, or employment applications, or they are made during the selection interview.

Suggestions to reduce retaliation discharges

- Take no adverse employment action against employees when they file complaints. Let them know you take their complaints seriously and are looking into them. - Keep complaints confidential. - Be consistent and objective in your treatment of employees. Evaluate employees on how well they perform, not on their personalities. - Harbor no animosity toward employees when they file discrimination lawsuits. Treat every employee the way you would want to be treated.

The following are some examples of how an implied contract may become binding

- Telling employees their jobs are secure as they perform satisfactorily and are loyal to the organization. - Stating in the employee handbook that employees will not be terminated without the right of defense or access to an appeal procedure. - Urging an employee to leave another organization by promising higher wages and benefits, then reneging on those promises after the person has been fired.

The states that great employees the privilege to see their personnel files generally provide

- The right to know of the existence of one's personnel file - The right to inspect one's own personnel file - The right to correct inaccurate data in the file

Arbitration

- the employee and employer present their cases, or arguments, to an arbitrator, who is typically a retired judge - Arbitration is used primarily to resolve discrimination suits related to age, gender, sexual harassment, and race.

Although managers agree that there is no single way to conduct the discharge meeting, the following guidelines will help make the discussion more effective

1. Come to the point within the first two or three minutes, and list in a logical order all reasons of the termination 2. Be straightforward and firm, yet tactful, and remain resolute in your decision 3. Making the discussion private, businesslike, and fairly brief 4. Do not mix the good with the bad. Trying to sugarcoat the problem sends a mixed message to the employee. 5. Avoid bringing up any personality differences between you and the employee. 6. Provide the employee with any severance pay information, and let the person know bout the status of his or her benefits and coverage. 7. Explain how you will handle employment inquiries from future employers looking to hire the person.

Tips to avoid wrongful employment termination lawsuits

1. Terminate an employee only if there is an articulated reason - The reasons should be stated as objectively as possible and should reflect company rules, policies, and practices. 2. Set and follow termination rules and schedules - Before terminating, give employees notices of unsatisfactory performance and improvement opportunities through a system of warnings and suspensions. 3. Document all performance problems 4. Be consistent with employees in similar situations - Terminated employees may claim that exception-to-the-rule cases are discriminatory. - Detailed documentation will help employers explain why these "exceptions" did not warrant termination.

Employers can lessen their vulnerability to implied contract benefits by prudent practices, training, and HR policies. HR experts recommend the following approaches

1. Training supervisors and managers not to imply contract benefits in conversations with new or present employees. 2. Including in employee offers a statement that an employee may voluntarily terminate his or her employment with proper notice and may be dismissed by the employer at any time and for a justified reason. The language in this statement must be appropriate, clear, and easily understood. 3. Including employment-at-will statements in an employment documents--for example, employee handbooks, employment applications, and letters of employment. 4. Having written proof that employees have read and understood the employment-at-eill disclaimers provided to them.

Virtual state courts now recognize the following three important exceptions to the employment-at-will doctrine

1. Violation of public policy: An employee is terminated for refusing to commit a crime, for reporting criminal activity to government authorities; for disclosing illegal, unethical, or unsafe practices of the employer, or for exercising employment rights 2. Implied contract: When employees are discharged despite the employer's promise (expressed or implied) of job security or contrary to established termination procedures. An employer's oral or written statements may constitute a contractual obligation if they are communicated to employees and employees rely on them as conditions of employment. 3. Implied covenant: When an employer has acted with a lack of good faith and fair dealing.

Documenting Misconduct

A manager's records of employee misconduct are considered business documents, and as such they are admissible evidence in arbitration hearings, administrative proceedings, and courts of law.

Disciplinary Model

Organizational discipline policy => Definition of discipline => Violation of organizational rules => Investigation of employee offense => Disciplinary interview => Progressive discipline => Due process => Just cause => Discharge

Fair Credit Reporting Act (1970)

Permits job applicants and employees to know of the existence and context of any credit files maintained on them. Employees have the right to know of the existence and nature of an investigative consumer report compiled by the employer.