2 Rights Affecting the Employment Relationship Employment-at-Will (EAW) Wrongful and Constructive Discharge Just Cause Due Process Distributive and Procedural Justice The Employment Relationship
What is Employment-at-Will? Employment-at-will is not a law. It is a doctrine based on common law. Employment-at-will is a legal doctrine that states that an employment relationship may be terminated by the employer or employee at any time and for any or no reason. This means that an employer does not need good cause to involuntarily terminate an employee. In every state but Montana (which protects employees who have completed an initial probationary period from being fired without cause), employers are free to adopt at-will employment policies. Approximately 2 of every 3 U.S. workers depend almost entirely on continued good will of employer.
Not Included Individuals with a contract for a specified time period Those with collective bargaining agreements Those with annual contracts (i.e., teachers) Whistleblowers
How Employers Can Protect Themselves No statements suggesting job security or permanent employment No statements during job interviews that suggest a promise, such as, "You can expect to hold this job as long as you want" No hiring without a signed acknowledgment of at-will disclaimer
How Employers Can Protect Themselves (cont’d) Clearly defining worker’s duties Providing good feedback on regular basis Conducting realistic performance appraisals on regular basis No law involving ethical considerations for employment-at-will
Exceptions to Employment-at-Will There are three major exceptions to the employment-at- will doctrine, as developed in common law. These exceptions are based on each state’s case laws.* The exceptions are: 1. Public policy 1. Implied contract 1. Covenant of good faith * An article on employment-at-will and chart of state exceptions is found at http://www.bls.gov/opub/mlr/2001/01/art1full.pdf http://www.bls.gov/opub/mlr/2001/01/art1full.pdf
Exceptions to Employment-at-Will (cont’d) 1.Public Policy: This is the most widely-accepted exception (43 states). Under the public-policy exception to employment-at-will, an employee is wrongfully discharged when the termination is against an explicit, well-established public policy of the state. The majority view among states is that public policy may be found in either a state constitution, statute, or administrative rule, but some states have either restricted or expanded the doctrine beyond this bound. Example - Palmateer v. International Harvester Company – employee claimed he was terminated for providing information to law enforcement about employer criminal acts; the court found that public policy favored the exposure of criminal activity.
Exceptions to Employment-at-Will (cont’d) 2.Implied Contract: The second major exception to the employment-at-will doctrine is applied when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists. Although employment is typically not governed by a contract, an employer may make oral or written representations to employees regarding job security or procedures that will be followed when adverse employment actions are taken. If so, these representations may create a contract for employment. This exception is recognized in 38 of the 50 states. Examples: policy language, employment offers, supervisor statements. Example - Toussaint v. Blue Cross & Blue Shield of Michigan – the employer had a policy of just cause terminations and did not follow established procedures.
Exceptions to Employment-at-Will (cont’d) 3.Covenant of Good Faith and Fair Dealing: The exception for a covenant of good faith and fair dealing represents the most significant departure from the traditional employment-at-will doctrine. Rather than narrowly prohibiting terminations based on public policy or an implied contract, this exception—at its broadest—reads a covenant of good faith and fair dealing into every employment relationship. It has been interpreted to mean either that employer personnel decisions are subject to a "just cause" standard or that terminations made in bad faith or motivated by malice are prohibited. This exception is recognized by only 11 states. Example - Cleary v. American Airlines – An employee with 18 years of service was terminated without any reason. The court stated that "Termination of employment without legal cause after such a period of time offends the implied-in-law covenant of good faith and fair dealing" and that, from the covenant, "a duty arose on the part of...American Airlines…to do nothing which would deprive...the employee...of the benefits of the employment...having accrued during [the employee’s] 18 years of employment."
Steps to Reduce Employer Liability Steps to take to minimize employer liability for adverse employment actions: Use disclaimers in the new hire process (offer letters and new hire orientation) and require signed acknowledgements. Outline clearly employment expectations. Implement a progressive discipline policy. Adopt a grievance procedure Train supervisors. Remind managers to document disciplinary actions. Include human resources in the disciplinary process. Review situations carefully and seek legal guidance prior to making adverse employment decisions.
Employer Checklist for Adverse Employment Actions Employer checklist when considering adverse employment actions* 1.Is the proposed action fair? 2.Is the proposed action consistent with employer policies and practices? 3.Is the proposed action made based on business needs (not made due to other factors, i.e. discriminatory reasons)? 4.Is there good documentation to support items1-3 above? *HR Magazine, Keep ‘Em at Will; Treat ‘Em for Cause, May 2005
16 Employment-at-Will Restrictions Wrongful Discharge Termination of an individual’s employment for improper or illegal reasons. Fortune v. National Cash Register Constructive Discharge An employer deliberately makes working conditions intolerable in an attempt to get (to force) an employee to resign or quit. Discharge as a Result of Retaliation whether an "adverse action" (following from a complaint or "protected activity") would tend to discourage other people from complaining.
18 Preparing a Defense Against Wrongful Discharge: The " Paper Trail "
19 Employment-at-Will Restrictions Wrongful Discharge Termination of an individual’s employment for improper or illegal reasons. Fortune v. National Cash Register Constructive Discharge An employer deliberately makes working conditions intolerable in an attempt to get (to force) an employee to resign or quit. Discharge as a Result of Retaliation whether an "adverse action" (following from a complaint or "protected activity") would tend to discourage other people from complaining.
Extraordinary change Intolerable working conditions
Bullying … Legal Remedies for Workplace Bullying: Grabbing the Bully by the Horns 22
23 Employment-at-Will Restrictions Wrongful Discharge Termination of an individual’s employment for improper or illegal reasons. Fortune v. National Cash Register Constructive Discharge An employer deliberately makes working conditions intolerable in an attempt to get (to force) an employee to resign or quit. Discharge as a Result of Retaliation whether an "adverse action" (following from a complaint or "protected activity") would tend to discourage other people from complaining.
26 Employment-at-Will: Fairness Just Cause Reasonable justification for taking an employment-related action. Due Process The means used to allow individuals to explain and defend their actions against charges or discipline. Distributive Justice –Perceived fairness in the distribution of outcomes. Procedural Justice –Perceived fairness of the process used to make decision about employees.
27 Criteria for Evaluating Just Cause and Due Process
39 Privacy Rights and Employee Records ADA Provisions Employee medical records are kept as separate confidential files available under limited conditions specified in the ADA. Security of Employee Records Restrict access to all records Set confidential passwords to HRIS databases Keep sensitive information in separate files and restricted databases Inform employees about data retained Purge outdated data from records Release information only with employee’s consent
42 Employee Rights and Personal Behavior Body Appearance An employer can place legitimate job-related limits on an employee’s personal at-work appearance such as tattoos and body piercings. Off-Duty Behavior An employer can discipline an employee if the employee’s off-the- job behavior puts the company in legal or financial jeopardy.
48 Workplace Monitoring Tracking Internet Use Monitoring Employee Performance Conducting Video Surveillance Monitoring of E-Mail and Voice Mail Balancing Employer Security and Employee Rights
49 Workplace Monitoring Right to Privacy Freedom from unauthorized and unreasonable intrusion into personal affairs. Privacy Rights and Employee Records: Access to personal info held by employer Response to unfavorable information in records Correction of erroneous information Prior notification when information is given to a third party
50 E-mail and Voice Mail Electronic Communications Policy Elements Voice mail, e-mail, and computer files are provided by employer for business use only. Use of these media for personal reasons is restricted and subject to employer review. All computer passwords and codes must be available to the employer. The employer reserves right to monitor or search any of the media, without notice, for business purposes.
55 How Substance Abuse Affects Employers Financially
56 Substance Abuse and Drug Testing Drug-Free Workplace Act of 1988 Requires government contractors to take steps to eliminate employee drug use. Failure to comply may lead to contract termination. Act does not cover tobacco and alcohol. Off-the-job drug use not included. U.S. Department of Transportation (DOT) Requires regular testing of truck and bus drivers, train crews, mass-transit employees, airline pilots and mechanics, pipeline workers, and licensed sailors.
57 Drug Testing and Employee Rights Policies for Conducting Drug Tests Random testing of all employees at periodic intervals Testing only in cases of probable cause Testing after accidents Testing Conditions Job consequences outweigh privacy concerns. Accurate test procedures are available. Written consent of the employee is obtained. Results are treated confidentially. Employer has drug program, including an EAP.
59 HR Policies, Procedures, and Rules Policies General guidelines that focus organizational actions. "Why we do it" Procedures Customary methods of handling activities "How we do it" Rules Specific guidelines that regulate and restrict the behavior of individuals. "The limits on what we do" Employee Rights
60 Typical Division of HR Responsibilities: Policies, Procedures, and Rules
61 Employee Handbooks At-Will Prerogatives HarassmentPay/Overtime Discipline Electronic Communication Benefits Policies in Handbooks
62 Employee Handbooks Legal Language Eliminate controversial phrases in wording. Use disclaimers disavowing handbook as a contract. Keep handbook content current. Readability Make reading level appropriate for intended audience of employees. Use Communicate and discuss handbook. Notify all employees of handbook changes.
Discipline and Disciplinary Action Discipline: State of employee self- control and orderly conduct Disciplinary action: Invokes penalty against employee who fails to meet established standards
Effective Disciplinary Action Addresses employee’s wrongful behavior, not employee as a person Should not be applied haphazardly Not usually management’s initial response to a problem Normally are more positive ways of convincing employees to adhere to company policies
The Disciplinary Action Process Set Organizational Goals Establish Rules Communicate Rules to Employees Take Appropriate Disciplinary Action Observe Performance Compare Performance with Rules EXTERNAL ENVIRONMENT INTERNAL ENVIRONMENT
Disciplinary Action Word discipline comes from word discipleWord discipline comes from word disciple Translated from Latin, it means to teach Intent should be to ensure recipient sees disciplinary action as learning processIntent should be to ensure recipient sees disciplinary action as learning process 13-67
Approaches to Disciplinary Action Hot stove rule Progressive disciplinary action Positive, or nonpunitive, disciplinary action
Hot Stove Rule A set of principles for effectively disciplining an employee that demonstrates the analogy between touching a hot stove and receiving discipline.
Hot Stove Rule Burns immediately Provides warning Gives consistent punishment Burns impersonally Problem: All situations are not the same
78 Employee Discipline Organizational culture of avoiding discipline Lack of support by higher management Fear of lawsuits Avoidance of time loss Guilt about past behavior Fear of loss of friendship Reasons Why Managers Might Not Use Discipline
14–80 Summary of Fair Discipline Guidelines Make sure the evidence supports the charge. Make sure the employee’s due process rights are protected. Warn the employee of the disciplinary consequences. Determine if the rule that was allegedly violated should be "reasonably related" to the efficient and safe operation of the work environment. Investigate fairly and adequately the matter before administering discipline. Conduct an investigation sufficient to uncover any substantial evidence of misconduct. Apply all rules, orders, or penalties evenhandedly. Apply a penalty that is reasonably related to the misconduct and to the employee’s past work. Maintain the employee’s right to counsel. Don’t rob a subordinate of his or her dignity. Remember that the burden of proof is on you. Get the facts. Don’t base a decision on hearsay or on your general impression. Don’t act while angry. In general, do not attempt to deal with an employee’s "bad attitude." Focus on improving the specific behaviors creating the workplace problem.