MGMT 350 Test 3

Hostile Environment

"Harassment is so severe or pervasive that it alters the condition of employment and creates a hostile work situation." To determine abusive work environment review the number of unwelcome sexual encounters or words, frequency of offensive encounters, total number of days over which it all occurred and the context in which it occurred. Most courts measure the offensiveness on the basis of an objective standard keyed to a "reasonable woman." In other words, the harassment has to be significant enough that a "reasonable woman" would find her work performance to be adversely affected, thus creating a hostile work situation. "As an employer, you will be automatically liable for any harassment that leads to a significant change in employment status, such as hiring, firing, promotion, or demotion.?1 If the harassment doesn't lead to a significant change in the employment you might not be held liable if you can prove you exercised reasonable care in preventing and correcting the harassment or if the employee unreasonably failed to complain to management.

Employer Liability

"Negligent Hiring states that the employer becomes directly liable for employee conduct on the grounds that the employer failed to exercise reasonable care in hiring employees who prove to be a danger to others."5 This simply means that the employer should have foreseen the danger and prevented it, or has overlooked certain employee behaviors, or has failed to dismiss someone for assault, fighting or dangerous horseplay. Negligent hiring may also cover events that occur outside the scope of employment. The bottom line is that employers are responsible for the safety of their employees and need to take reasonable care in hiring people by conducting appropriate background checks and by checking references before hiring an employee. Reference checks are verbal or written documentation from past or present employers, business associates or other relevant sources that can verify employment dates, rehire eligibility and work/character ethics of an individual. Usually a human resources professional, who is trained in asking open ended question to obtain specific information, checks the references of potential new hires. Background checks provide financial, criminal or motor vehicle history of a potential employee. Care must be taken to seek only appropriate background checks that are based on business necessity.

Legitimate Work Orders

"Work orders given by managers should serve legitimate business purposes."4 They need to be valid and reasonable and employees should have a clear understanding of the work order. Managers need to spell out exactly what needs to be done and let employees know the penalty if they refuse to obey the work order.

Combatting Employee Theft

*Paper and Pencil Honesty Test*. A paper and pencil honesty test inquires employees' attitude about theft. However, any test an organization uses should be validated. It should have a direct correlation between the person's behavior/performance on the test and the behavior/performance on the job, and have no disparate impact on minority groups. As far as the pencil and paper test is concerned, there are differing views about the accuracy. *Power Interviews* - Power Interviews require considerable training. There is a great connection between the ability of the interviewer and the accuracy of the responses. They can lead to torte claims if not properly administered. *Workplace Monitoring*. Workplace monitoring can detect and prevent theft. Monitoring can be conducted via the telephone, computer, telecopy, fax and video/audio surveillance. Usually an employee is made aware of the monitoring in advance, however, a company can monitor discretely if they believe an employee is disclosing confidential company information to outside parties. Certain types of monitoring may be limited by federal or state wiretap laws. Activities such as these should be limited to extreme situations where safety. The employer's reputation or large sums of money are concerned. There should be a legitimate reason for using video or audio surveillance and avoid areas where the employee expects privacy, such as break rooms, restrooms and changing rooms. *Polygraphs* The Employee Polygraph Protection Act of 1988 severely limits use of polygraph examinations. Only under certain narrowly defined circumstances are polygraphs allowed.

Abusive Language as Insubordination

-Abusive language, name calling, derogatory remarks and back talk can be considered insubordination if they are used to embarrass, ridicule, or degrade manager. -serious infraction and can warrant termination. -'shop talk' used in a *friendly tone* is different, and should not be treated as the same. -employees have the right of free speech or 'healthy griping. -if employee back talks to the manager it is best to warn the employee that disciplinary action will be forthcoming. -The manager needs to consider whether statements were malicious or had a significant effect on the morale and productivity of other employees when determining the penalty.

Discharging an Employee for stealing or off duty misconduct

-Employees are required to prove that the misconduct is significantly related to on-the-job considerations in order to take action. For example, if an employee is caught stealing and this conduct is injurious to the firm's reputation the employer would be able to dismiss the employee. Or if the employee becomes involved in an act of violence, which negatively affects the firm's ability to sell its product then the employer is justified in firing the employee. An employer can dismiss an employee even if the incident causes the employee not to perform his or her job at same level of competency. -Suspicions alone are not enough for the employer to consider dismissing an employee. The employer must have convincing evidence and facts that show beyond a reasonable doubt that the employee is guilty of the crime. The penalty that the employer chooses, whether it is a written warning or termination must be just and equitable for all. There may be exceptional circumstances for not discharging an employee due to theft. Listed below are some reasons: -The company is involved in dishonest behavior and is condoning the behavior. -The company is considering discharging the employee for off-duty theft, even though it is not related to the job. -The employee is disabled, due to alcohol use in which case the employer should state that the employee seek help from their Employee Assistance Program. -The employee has a long, unblemished work record and the theft is small.

Mediation Process Steps 4 and 5 - Propose Solutions and Select a Solution

-Next the mediator encourages the participants to generate solutions for each issue. He lists the issues and organizes them in order of importance and starts with items that have least resistance. He should keep them focused on one issue at a time and clarify what they are saying so everyone has good understanding. -The parties are encouraged to pick the best solution that ends in a win-win situation. The mediator needs to clarify the specifics and get a detailed plan for each solution in order to draw up a workable plan. This is a good time to make sure the plan has a good chance of working.

Assault as Insubordination

-considered insubordination if it resides within the employer-employee relationship. -depends on whether or not the assault was work related or whether it stemmed from a personal disagreement. -If it is work related it can still reside within the employer-employee relationship even if the dispute occurs off the company's grounds. -depends on Was it done with malice or was it just horseplay? -depends on Was it done in self-defense or did it exceed self-defense? A person may be guilty of insubordination if they aided and abetted assault, but were not directly involved. "Arbitrators have held that employees may be guilty of insubordination even if they did not personally engage in the assault."

Unsafe Work Orders

-firms can't discipline employees for failing to perform an unsafe act. -part of the Occupational Safety and Health Act of 1970. And it is also under the Taft-Hartley Act of 1947, which states quitting work in good faith because of abnormally dangerous conditions is not considered a strike. *That is if the employee's fear is 'real enough to constitute unsafe conditions or if the employee sincerely believes it's dangerous and makes reasonable appraisal of the potential hazards.

Penalties for Disobeying Work Orders

-manager needs to consider the severity of offense, the employee's work record and other mitigating circumstances. -Managers need to weigh and evaluate what led up to the act, what the behavior was, what happened after it occurred and look up past precedents. -The key is to be consistent and have sufficient proof. -A firm usually treats insubordination as a serious offense. -An employee is usually suspended for insubordination and in the more serious cases of gross insubordination is discharged upon investigation, once sufficient proof and evidence has been found.

Penalty for Assault

-manager would consider the severity of act, the employee's work record, and mitigating circumstances. -also review the type and nature of the assault, look at the degree of violence and who started or provoked it. -Usually a serious infraction such as assault warrants discharge.

Threats of Assault

-not as serious as assault, but it is still a very serious infraction. -serious if it undermines the supervisor's ability to direct workers, especially if it was done in front of workers. -manager would look at the intent behind the verbal threat, and serious threats would warrant discharge.

Mediation Process Steps 1 and 2 - Introductions and Setting Ground Rules

-the mediator introduces himself or herself to the parties and they in turn do introductions. The mediator talks about his role, that he is there to facilitate the process, not to give suggestions to how the issue should be resolved. He explains the procedure, that one person will talk at a time to discuss his or her view of situation without interruptions, while he takes notes. And that he will help identify the issues so they can begin to think of solutions for a resolution. He states that what is said in this meeting is confidential. -Next, he asks the parties to help set ground rules. Usually the mediator will suggest a few, such as only one person can talk at a time, treat each person with respect, etc. and then he allows each party to add their own ground rules.

Mediation Process

-useful tool for many types of situations. -can be used in an organization, for a personal or business dispute or as a way to resolve conflict. Our focus will be mediation in the workplace. An organization often uses mediation to a resolve conflict situation between two or more individuals. Sometimes a third party is called in to be the mediator, but often managers or human resource experts act as the mediators. It provides a safe environment for the parties involved to deal with conflict situations and is a process that is fair and respectful. -Conflict is normal and inevitable in the business world, and can even bring out great ideas. But sometimes the differences of opinions, values or norms becomes too difficult for the people involved to handle and can end up creating resentment and anger. This is when a third party person, the mediator, is needed and can be used to help resolve the issue. -There are many different ways people react to conflict, the most common one is to avoid the problem, which unfortunately ends up as a losing situation for everyone involved, but when they decide to try to work the issue out the end result is a positive one. This of course, makes for better working relationships and a more productive company. -The basic mediation process is similar to Robert Bolton's six step collaboration process found in People Skills. The first step of the process is to introduce the mediator and the parties involved in the conflict, if the mediator is from outside the organization or is someone unknown to the individuals. The mediator explains the process and facilitates the parties in setting ground rules. Then each party has an opportunity to openly discuss their perception, the mediator helps to identify the issues and they address one issue at a time. They probe until they can get to the root of the problem and then they work toward common goals and brainstorm for winning solutions. Once the best solution has been established the mediator puts the solution or solutions in writing and an agreement is signed.

Alcohol and Substance Abuse: Three Approaches

1. A straight forward application of traditional corrective model; only judge on the declining job performance. 2. The therapeutic model, which recognizes the person is a victim of a disorder who needs an opportunity to recover, including a leave of absence. 3. Give the employee one second chance, realizing that he/she suffers from an illness, but may be subject to discharge if the problem isn't corrected.

Absenteeism/Tardiness

Absenteeism is a problem in most organizations. Larger firms had higher rates of absenteeism (1.9%) than smaller firms (1.4%) The average employee misses approximately 4 days of work per year that is unscheduled. This costs several billion dollars, not including replacement coverage or overtime.

Dress Code

Almost every firm has a policy on proper attire and appearance. Most companies specify in their dress code policy exactly the type of appearance that is acceptable and unacceptable. For example, a policy might prohibit tank tops, mid-drifts showing, spaghetti straps, skirts that are more than 3 inches above the knee, jeans, sweat pants or sneakers. A popular trend is 'casual Friday' where employees are allowed to wear business casual or in some cases jeans and sneakers on Fridays. The dress code and safety attire policy varies depending on the type of company and the company's culture. Manufacturing plants and other types of firms that require safety attire must adhere to OSHA regulations. For instance, a plant might include in their policy the different types of protective gear needed in the different areas of the plant, such as ear protection around high noise areas, protective eye glasses, respirators, safety hats, safety shoes, safety belts, protective gloves, etc. Firms should use the progressive disciplinary system, up to and including discharge for poor personal appearance or grooming if it is related to health, safety or a legitimate business interest. A firm can uphold disciplinary action for maintaining an image for competitive business reasons. However, firms cannot discharge an employee for a rule that is not reasonably related to employer's articulated purpose. The rule must be communicated in advance and then consistently applied and enforced.

Investigation Process

Another area of concern is how the employee is treated during the investigation process. If the employer's conduct is overly aggressive and they subject the person to undue humiliation and mental strain a tort of intentional infliction of emotional distress could be presented. Or, if the employee is feeling imprisoned during the investigation interview the company could be charged with false imprisonment. Also, a charge of assault could result if the investigator conducts a body search that distresses the employee. To protect the person's confidentiality, the interrogation should take place in a private setting where no one can see or hear what is taking place.

Assault & Battery

Assault, as defined by Black's Law Dictionary, is "any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do, and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm."1 Assault is often accompanied by 'battery,' which results in bodily injury or offensive touch. When intentional infliction of another crime accompanies assault it is considered aggravated assault. Most firms would suspend or discharge an employee on the first assault offense. When deciding the discipline, managers need to determine if an actual threat took place, and if the threat was made with a weapon. Threats can warrant discharge, and threats made with weapons are treated much more seriously. Unfortunately, violence at work is the fastest growing crime in the U.S. workplace.

Attendance Policies

Attendance Policies can be short or long and very descriptive. Most attendance policies state how employees are to keep track of the hours they worked, usually using an attendance card, time sheet, or time clock with a punch card. An attendance policy will usually indicate who and when to call for absent notification. Some policies state that the employee is to call his or her supervisor/manager 2 hours in advance and not reporting to work or calling may be grounds for dismissal. Other policies state that termination would occur if an employee doesn't call for 3 consecutive days or if the employee fails to report or call in twice. Employers may require a physician's excuse for extended absences. For companies with work stations, such as manufacturing firms, the policy usually states being at the work station at start time and staying until quit time, except for scheduled breaks.

statistics for business losses due to employee dishonesty

Business losses from employee dishonesty are estimated well into the billions of dollars, and increases each year at approximately 15%. One third of all business failures are due to employee dishonesty.

Sam and carol insubordination example scenario

Carol wants to take both friday and sat off carol should be aware that his behavior calls for punishment It can call for suspension without pay or termination

Impact of Employee Dishonesty and Theft

Companies first need to establish written policies on employee theft and dishonesty that is well communicated in orientations, department meetings, and policy statements. A policy concerning theft would include language that states it is a serious offense that warrants immediate suspension and normally discharge. Examples of the offenses would be included such as theft, misappropriation or willful destruction of company or other employees' property, falsification of records, reports, time cards, voucher, etc.

Preventing Absenteeism

Companies have tried various methods for preventing absenteeism, usually using one of the following or combining several together: disciplinary action, no-fault policy, year end review, personal recognition, paid bonuses for good attendance, buy back program and paid leave bank. *No Fault Attendance*. Some companies have used the no fault attendance policy in an attempt to reduce unscheduled absenteeism. The no fault attendance policy assigns points for missing work, which result in penalties ranging from verbal warnings to terminations. The amount of points a company designates for certain types and lengths of absences varies. For example, the Kasei Memory products Plant of Verbatim Corporation has a policy that states 10-12 points in a 12 month period results in termination. The points remain in file for 12 months and then are removed. This policy allows for extenuating circumstances, and is reviewed by the supervisor, the department manager and the H.R. Manager before terminating an employee. Verbatim combines the no-fault policy with an incentive for those having perfect attendance. *Incentives*. Incentives are used by many firms in conjunction with another type of system, such as progressive discipline or the no-fault policy. Incentives can range from a simple act of recognition to a significant monetary reward. For example, for no unscheduled absences within a six month period, an employee's picture can be posted on employee Bulletin Board or announced at the company's Holiday Party. No unscheduled absences for one calendar year would result in a mall certificate or a check. The amount of the reward doesn't have to be exuberant, but should be significant enough to hold value to the employee. Inexpensive symbols or reward items are often used in companies to show recognition. *Recognition*. Employee recognition programs that show appreciation to their employees for their efforts, don't have to affect the bottom line. For instance, praise can be offered, and when done publicly can make an employee feel valued. *Paid Time Off*. Paid time off (PTO), also called personal time banks or paid leave, is designed to reduce absenteeism. This type of leave minimizes misuse of sick leave. The PTO combines sick leave with vacation, personal leave, and floating holidays. If they take sick leave it reduces vacation time. It rewards employees with good attendance by letting them cash in their unused leave days at the end of the period. Nine hundred respondents thought this was the most effective way to control sick leave abuse. The program can be modified. For instance a company could set aside five days in a catastrophic illness account or retain unused days in a bank for hospital days.

Conducting an Investigation

Dealing with a fight can be dangerous and every minute counts when trying to stop the fight. Quick action must be taken to keep the combatants and other workers safe. The first thing a manager should do is try to break the fight up by yelling to get them to stop. If that doesn't work, threaten with disciplinary action. The manager may need to ask another supervisor to help or may need to get the security or police involved. After the fight has stopped, keep the combatants separated long enough so it doesn?t start up again. This may include suspending them. Conduct an investigation and gather eye witnesses for an account of what transpired as soon as possible. The investigation should include: -what transpired, -the events that led up to the fight, -why it started, who was the instigator, -who threw the first punch, -who was the primary aggressor during the fight, -what was the impact on the individuals involved, including injuries, and what effect did it have on morale, safety and work habits of other employees? When conducting an investigation interview the persons involved in the misconduct, witnesses to the misconduct, supervisors of those involved and other people the accused have asked to be interviewed. "To avoid claims of invasion of privacy, interview only those people who are involved in or may have direct knowledge of the conduct being investigated."3 The interviews should take place in a private place and all information disclosed should be kept to a need to know basis, maintaining confidentiality. Document all information of what transpired and what was said during the interviews.

Drug Abuse vs Alcohol Abuse

Drug Abuse is often treated differently from alcohol abuse, mainly because drug abuse is illegal and is a criminal offense. You will find that companies oppose rehabilitating employees who are on illegal drugs. The employer can terminate an employee without offering rehabilitation if the employee is selling or in possession of drugs at work. However, drug abuse of over-the-counter drugs or prescription drugs is often treated the same as alcohol abuse.

Horseplay scenario example forklift

Employees were fooling around and manager finds out that a forklift was driven into the walls of the company. -find guilty party -if no one steps up, hold an individual meeting with each employee to find out who it is -if they confess to the person he will receive proper disciplinary actions -If they dont find out who it was everyone will receive an oral warning.

Sleeping on the Job

Falling asleep on the job can be a serious problem, especially when it creates a safety issue. Most firms have short policies that state, "sleeping is prohibited" or "employees will receive 3 days of disciplinary time off for sleeping or the appearance of sleeping on the job." For some firms, sleeping on the job is subject to discharge or other discipline. If the behavior poses a threat to the health or safety of others it poses a greater problem, resulting in a more severe disciplinary action. Another factor to consider when reviewing what type of disciplinary the employee will receive depends on whether the person went to another area of the plant to dose off or if it was in his or her work area. Seeking out a safe haven to sleep is more serious than falling asleep at one's work area. How do you determine if the employee is sleeping? You would need to observe close up and tap or shake, or call out to the person. It is best to have witnesses to back up your observation. Narcolepsy can resemble normal sleep from the outward appearance, but there is a significant difference. Narcolepsy starts with REM sleep instead of NREM, and the person may experience sleep attacks or a momentary paralysis. This can be cause from a sudden emotional reaction such as joy or anger. Employees with this condition should be referred to a physician for medical treatment.

Fighting

Fighting is defined by Black's Law Dictionary as a "hostile encounter; either physical or verbal in nature."2 Most firms have a policy against it and often combine it with their policy on violence and horseplay. When fighting occurs within the scope of employment, the manager needs to judge the seriousness of the offense and determine "who threw the first punch," and whether the conduct consisted of a single, thoughtless blow or a series of deliberate acts. Several other questions that need to be asked are: did the instigator use a clenched fist or use a dangerous instrument? Was this in self-defense? How has this affected morale, safety, and the work habits of other employees? Another area to explore is whether the employee has vicious tendencies, emotional instability or dangerous propensities. Finally, look at the employee's past work record and actions. Can an employer take action for fighting that takes place off-site? Usually not, except if it is within the scope of employment. That is, if it is near the plant/organization and is during the scheduled work day and if it stemmed from activities inside the plant or organization.

Gambling

Gambling at the workplace can cause interpersonal problems and has been found to reduce time spent working, resulting in lower productivity for the organization. Gambling is illegal in some states and most organizations have policies prohibiting gambling. The policies are usually short, for example it may state "participating in any organized game of chance punishable by law, while on company property or on company time may be cause for immediate termination." Some policies exclude various sport pools, as long as it involves small sums of money because some firms believe this can improve teamwork. One problem with allowing any gambling to occur at the workplace is the encouragement to those employees who may have a compulsive gambling problem. Manager's awareness of the different stages of compulsive gamblers is important for detection. There are three stages: the winning phase, the losing phase, and the desperation phase. When compulsive gamblers are in the winning phase their self esteem is increased, they feel popular and feel that this is a solution for their life. Next is the losing phase. This occurs when the gambler starts losing and increases the amounts, which usually results in even bigger losses. Last is the desperation phase, which is characterized by bouts of uncontrolled irrational betting and increased psychological and physical symptoms such as moodiness, difficulty concentrating and stress related illnesses. Some gamblers may steal or become dishonest during this last phase. Managers should be aware of this type of problem, and if recognized, refer them to 'Gamblers Anonymous' and the Employee's Assistance Program (EAP). The manager may use progressive discipline if it results in a performance, attendance or ethical problem, but discharge is usually too severe.

Defining Sexual Harassment

Harassment is prohibited in the workplace according to the Civil Rights Act of 1964, Title VII Section 703. Harassment is not limited to gender. Race, handicapped status, age, religion, and ethnic background are also included under Title VII. Some examples of harassment includes any unwelcome staring, comments about body or clothing, sexual jokes, racial or ethnic slurs, posting sexually oriented pictures, computer graphics, etc. The definition of Sexual Harassment according to the United States Equal Employment Opportunity Commission (EEOC) is: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting the individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment." The costs from sexual harassment can be exuberant. They include the cost for training new employees, the cost of treating health problems of harassed employees, the cost of absenteeism and lost productivity, not to mention the legal costs if the victim chooses to take legal action against the firm. Sexual Harassment in the military is still prevalent. A government study stated more than 1/3 women surveyed experienced some form of direct harassment, 64% had been harassed either directly or in more subtle ways and 17% of the men surveyed had been harassed by male or female colleagues.

Horseplay

Horseplay is defined as rough or boisterous play that disrupts normal routine, but is done without malice intent. Most companies have written policies against horseplay that are usually stated in general terms. Some say it is subject to disciplinary action, others actually state the penalty. Penalties for horseplay range from an oral warning to dismissal, depending on the severity of the incident and whether or not safety or assault is involved. In a case of horseplay the manager needs to determine the exact nature of the problem and take disciplinary action that is appropriate.

Confirm the Abuse

Let's say the employee is rumored to be drinking. What type of action will you take? First you need some proof. Investigate allegations by interviewing other employees and by monitoring the person. You also need to consider the severity and nature of this offense, i.e., how much is he or she drinking, what type of alcohol, and the time of day. The evidence indicating the severity of the problem needs to be proportional to the proposed penalty. This could range from a verbal warning or counseling session to dismissal. How can we determine if an employee is intoxicated at work? Typical signs of intoxication are: altercations with fellow employees, poor judgments, on-the-job accidents, tardiness and early departures. Other signs that there could be a problem include unexcused and frequent absences (especially on Mondays, Fridays, and the days before and after holidays), a deteriorating personal appearance and involvement with the law. You can ask them to take blood tests, if this is a written procedure that has been communicated. It has been argued that submitting to blood, breath or urine tests constitutes invasion of privacy; some arbitrators say you must seek consent of the employee. Most policies include the right to conduct random drug tests and state that parties involved in on-the-job accidents will be tested for drugs or alcohol. What happens when the employee's performance is deteriorating and you have a suspicion that it could be the result of alcohol? It is not a good idea to test without 'reasonable suspicion', that is, some type of evidence to support your claim. Instead, focus on the declining performance, such as absenteeism, erratic work, tardiness and avoid making accusations.

Actions to Take

Many firms believe alcohol and drug abusers are owed a second chance, except when safety is a issue, and offer rehabilitation through Alcoholics Anonymous and the Employee Assistance Program (EAP). You will find that companies are more willing to offer rehabilitation for alcoholism than drug use. Some arbitrators have drawn the line at discharging an employee while he/she is actively involved in a drug treatment program, as was the case with Rodgers v. Lehman. "In its ruling, the Rodgers court recognized five steps that should be taken when an employee's poor job performance is suspected to result from alcoholism: 1. The employee should be informed of available counseling services. 2.If the employee's unsatisfactory job performance continues, the employee should be given a "firm choice" between treatment and discipline. The employee should be clearly and unequivocally warned that unsatisfactory job performance caused by drinking will result in discipline eventually, including the termination of employment. 3. Unless it is clear in a particular case that inpatient treatment is immediately required, the employee should be permitted to participate initially in outpatient treatment of sufficient duration to assure him a reasonable opportunity for cure. If the employee continues to drink while participating in that treatment, progressive discipline may be imposed for any resulting job-related misconduct. 4. If the employee ceases to participate in the outpatient treatment, is discharged for non-cooperation or continues to drink after completion of that treatment, and is guilty of job-related misconduct, the employer should afford the employee an opportunity to participate in an inpatient program before discharging him/her. This program should be paid for using accrued or unpaid leave, unless the employer can establish that it would suffer an undue hardship from the employee's absence. 5.If the employee completes the program, but thereafter relapses, and then fails to perform his/her job satisfactorily, a decision to discharge him/her will be presumed to be reasonable. Only in a rare case, such as when a recovering alcoholic has had a single relapse after a prolonged period of abstinence, can this presumption be rebutted.2

Meritor Savings Bank v Vinson

One of the most important court rulings was in 1986 in the case of Meritor Savings Bank vs. Vinson. The plaintiff, M. Vinson worked at Meritor Bank for S. Taylor. Vinson brought a lawsuit under Title VII charging that during three of her four years at the bank, she was subjected on many occasions to unwanted sexual advances from Taylor, some of which was done in front of other employees. However, she never reported the incidents to management or used the bank's complaint procedure. When the case went to court, the attorneys argued that the firm could not be held liable since Vinson had never informed anyone in authority. At first the firm was not held liable since Vinson never informed anyone in authority but the U.S. Court of Appeals said the firm was still liable even though none of the top executives had any direct or indirect knowledge of the harassment. The case was brought before the Supreme Court, which stated the employer has a responsibility to know what is going on and provide employees with a complaint procedure that allows them to come forward without fear of recrimination. Also, the court pointed out, the bank's policy against harassment did not mention sexual harassment, and its grievance procedure required the employee to first go to the immediate supervisor, who in this case was the perpetrator. The bank's case would have been stronger if they had a grievance procedure that allowed employees to bypass their immediate supervisor. Another issue that was brought up was that Title VII is not limited to discrimination resulting from tangible economic loss. An employee, such as Vinson, can be granted promotions and raises and still feel that the work environment is hostile.

Sick Leave

Private employers are not legally required to provide sick leave to their employees, but the benefits of giving sick leave seem to outweigh the costs. The costs for paid sick leave ranges depending on the size of the company. It can be from $200 a person/yr. for firms with less than 250 employees to $620 for firms with 250-499 employees and $500-569 for firms over 500 employees. This amount is an average and excludes all other direct costs. A big benefit for allowing sick leave is that it reduces the amount of germs that are spread and therefore increasing productivity. Also, it encourages cross training when someone is absent, and can be used as a recruitment and retention tool.

Smoking

Smoking in the workplace has changed dramatically over the past several years. What was once an accepted habit has now become a controversial issue to workers. Firms can prohibit smoking, not only on-site, but also off-site if it is in their policy that has been communicated at the time of hire. A company can be justified in hiring only non-smokers because of the rising health care costs associated with smoking. Hiring smokers can be costly for organizations. Smokers are absent 50% more, they use health insurance 1.5 times more (which increases medical claims causing insurance premiums to rise) and the accident rate is twice as high. Also, their smoking, if allowed in the workplace, causes an adverse effect on the health of the non-smokers. Employees who smoke at the workplace, whether in the parking lot or in another area outside the building, results in on-the-job lost of time and productivity.

Alcohol and Substance Abuse

Statistics indicate that at least 10% of all 'problem employees' are alcoholics. "The U.S. Dept. of Labor estimates that drug and alcohol usage in the workplace costs employers between $75 billion and $100 billion annually in lost time, accidents, health care and workers compensation cost. It is estimated that 65 percent of on-the-job accidents are attributable to drug and alcohol use."1

FMLA

The Family and Medical Leave Act (FMLA) requires firms with 50 or more employees within a 75 mile radius, to offer up to 12 weeks of unpaid leave after childbirth or adoption, to care for a seriously ill child, spouse, or parent or in the case of an employee's own serious illness. Employers have to continue health care coverage during the leave and guarantee the employee their same job or a comparable position upon return. The employer may require the worker to provide medical certification, and the employer must provide the employee with a timely written notice specifying the employee's rights. Employers can exempt "key employees," those at the highest paid 10% of the workforce, since it might put an economic strain on the employer. The employer must keep documentation on the FMLA request and record the exact number of days the employee is on the leave.

Drug Testing

The guidelines for testing as developed by the National Institute on Drug Abuse (NIDA) for federal workplace drug testing state that tests results must always be unquestionably reliable and defensible in a legal proceeding. Companies should use a NIDA - certified laboratory whenever possible for strict quality control. The employees should be informed of the rules for testing in advance and be treated fairly and with respect. Inform employees of the rules for drug testing at the onset of employment, and provide written policies that are in the employee handbook for reference. The employees need to be notified in advance that the employer may test people involved in on-the-job accidents, and alert employees that they are subject to random drug testing. Have them sign the acknowledgment form and keep a copy in their file. The drug test results are confidential medical information and should be kept separate from other employee records. If you have reasonable cause to suspect drug use, gather all information and facts supporting suspicions for a written report before notifying the employee.

Manager's Role in Preventing Theft

The managers play a key role in preventing theft. It is their obligation to communicate the theft policy periodically and state the consequences, treating even small amounts of theft as a serious offense. The managers should be a model for integrity, and treat employees with dignity and respect, and in return the employees will act more responsible. Establishing relationships with employees makes it much more difficult for the employee to steal. One positive approach a manager can take is to establish loss prevention goals and reward employees for reaching them. An open door policy encourages employees to openly voice their concerns or problems. By letting disgruntled employees vent at work, you will help prevent damaging actions to occur. The best managers are those that are aware of their subordinates concerns. For instance, if an employee is experiencing sudden financial problems, a manager can refer the employee to Human Resources for assistance. Helping employees during times of need demonstrates the company's caring attitude, and the employee is not only less likely to steal, but will have a more positive attitude. Notify the officials if a major theft is discovered and conduct an investigation immediately, but be aware of the legal ramifications that can result from an investigation of theft. Guard against giving personal information out and against tarnishing their name, as this could bring a defamation lawsuit against the company.

Mediation Process Step 3 - Sharing Views

The next step of the process is to share each person's views. The purpose is to give each person some time to talk about their feelings and perspective without interruptions. One person should speak at a time to the mediator, and the mediator acknowledges each person's feelings by responding back with reflective listening skills, while taking notes of the issues. If the parties have a chance to express their emotions it will help them move forward in the process. After each party has told their side, the mediator paraphrases and ask open ended questions to clarify. For example he could say: Can you give me a specific example? Or, tell me more about this issue. How has this impacted you? Then he restates the issues with their collective interests and common goals in mind. The mediator tries to bring out the positive and avoids reflecting any negative words or feelings. He will probe to find out the root cause of the conflict and address interpersonal issues or differences. -Usually the mediator finds it helpful to use a flip chart when identifying the issues that were written down during the conversation. These are the main items that were expressed by each party. The mediator may need to ask some open ended questions to gain more information and clarify each issue. He should try to find some common elements that he can work from to help the parties reach a resolution, and he keeps the tone positive so the people involved feel empowered to openly discuss their unmet needs. He should be looking for the underlying interests of each party so they can come up with a win-win solution.

Mediation Process Step 6 - Written Agreement

The written agreement should include details about the solution that was selected and be written in clear and specific terms. It should include all action items with the agreed upon dates. The meeting should end on a positive note that acknowledges the participants for their efforts in making the process work. Set a date to follow-up to check on their progress to make sure they are working on their plan as agreed.

Can an employee refuse to do work that is just uncomfortable, but not hazardous?

They can file a grievance, or request permission to leave, but they cannot refuse to do work that isn't considered hazardous.

Excessive Absenteeism

What is considered excessive absenteeism? Usually four or more unscheduled absences in a rolling 90 day period, but there is no one set standard. A number of factors are usually considered. If an employee has excessive absenteeism, the employer would review the length of time an employee has a poor record of attendance, the reason for the absence, the timing of the absence, and examine this against their rules.

Steps to Prevent Sexual Harassment

What steps should a firm take to prevent Sexual Harassment? 1. Have a grievance procedure that is clearly communicated and that allows complainants to go to Human Resources or other members of management besides their immediate supervisor. 2. Inform employees of their rights. State that no retaliation will occur for those reporting a case of sexual harassment, and the company will be confidential with the information, on a need to know basis. 3. Conduct a fair and thorough investigation once a claim is brought forth and the appropriate sanctions will take place. Have ongoing sexual harassment training for both employees and management. 4. Have participants sign forms that acknowledge attendance. Every organization should have a policy on harassment that is well communicated. New employee orientation is an excellent beginning place to start communicating this policy and ongoing training thereafter should be once a year. The burden is on the company to take a proactive approach to seek out information and take corrective action promptly.

Disciplinary Action

When considering the disciplinary action, review all your documentation from the interviews and analyze the facts. Look at similar situations and how they were handled in the past. Then review the person's work record, past disciplinary record, the length of service, the severity of the offense and any mitigating circumstances. Managers need to take immediate action since they are directly responsible for the actions of the employees. "In most states common law recognizes two causes for action if managers ignore these behaviors or fail to respond appropriately."4 One of these is the legal consideration "*respondeat superior*," and the other one is negligent hiring/retention. Respondeat superior means let the superior reply, since the employee is the employer's legitimate agent and the employer is responsible for their acts. The main issue in determining the employer's liability is whether the employee was acting within the scope of employment; the key factors for determining the scope of employment are the time, place and purpose. If horseplay occurs outside the scope of employment the employer is not vicariously liable.

Workplace Searches

Workplace searches are allowed in an organization as long as the organization has not created a reasonable expectation of privacy from employees. Each organization should have policies that state that they have the right to search employees' belongings and their persons. If the company wishes to conduct random searches it needs to written in their employee handbook and policy manual and well communicated. The employer should obtain a signed consent from the employee at the onset of employment. The handbook should contain specific information about the types of items and places where the employer can search, such as the employee's desk or locker. They can discharge an employee who refuses to consent to any search.

Absenteeism example scenario

rick stone is great at golfing and always attends golf matches. Goes and gets notes however goes golfing. -He needs to be aware of policies and how the workers are inconvenienced when he is not there. -Have him aware of sick days -make arrangements for him to attend only certain days -if he doesn't follow through take disciplinary actions

theft example scenario

supervisor catches employee stealing orange juice, employee drops the juice and leaves the store. the next day the employee denies trying to steal it. The discharge is valid because it ruined the employee employer work relationship.

Percentage of people who have stolen from their employees

up to 75% of employees steal at least once, and half of these employees steal twice. This amount is alarming. More recently we have heard about identity theft, which has added to the amount of business losses.