Respecting Employee Rights and Managing Discipline CHAPTER 14 Respecting Employee Rights and Managing Discipline

Chapter Objectives Review Key Terms Understand the origins and the scope of employee rights and management rights Explain why the HR department must balance management’s rights and employees’ rights when designing employment policies Describe the employment-at-will doctrine Distinguish between progressive discipline procedures and positive discipline procedures Review Key Terms Contractual rights Employment-at-will Insubordination Positive Discipline Progressive Discipline Statutory rights Whistle-blowing Wrongful Discharge

Employee Rights Statutory rights Contractual rights A right protected by specific laws. Protection from discrimination Safe Working Conditions Right to Form Unions Contractual rights A right based on the law of contracts. Employment contract Due process Wrongful discharge

Employee Rights Right to ethical treatment Limited right to privacy: personnel file/Privacy Act of 1974 Limited right to free speech

Management Rights Employment-at-Will Without a contract, the employee can resign for any reason, at will, and the employer can similarly dismiss the employee for any reason (or no reason), at will. Generally, employees who do not have contracts guaranteeing employment for a specific period of time (such as one year) are considered to be at-will employees. Under the at-will doctrine, employers have the right to terminate employees without these types of contracts at any time and for any legally permissible reason

Management Rights Employment-at-Will However at-will statement does not really give employers free reign to terminate employees for no reason. Every state except Montana recognizes the at-will employment relationship either by court decision or by statute, most also restrict it in some way. Courts in a majority of states have limited its application by allowing the at-will relationship to be restricted under several legal theories. Many employees are specially protected under federal or state discrimination laws, which must be complied with regardless of at-will status. Bottom Line - Don’t Terminate for “No Reason”

Management Rights Employment-at-Will Limitations to employment-at-will Public policy exception (43 states) Discharge is wrongful when it was against an explicit, well-established public policy: employee fired for refusing to break the law. (Not applied in New York, Maine, Florida, Alabama, Georgia, Nebraska or Rhode Island) Implied contract exception (37 states) Employer statements about future employment create a contractual obligation for the employer to continue to employ the employee. (Not valid in Florida, Delaware, Georgia, Indiana, Louisiana, Massachusetts, Missouri, Montana, North Carolina, Pennsylvania, Rhode Island, Texas, or Virginia) Covenant of good faith exception (11 states) Suggests that employers should not fire employees without good cause (Valid in Wyoming, Utah, Nevada, Montana, Massachusetts, Idaho, Delaware, California, Alabama, Alaska Arizona)

Management Rights Employment-at-Will What the At-Will Statement Should Include (Most courts will find an at-will relationship if the following criteria are met) The at-will statement is written in clear, understandable language, not legalese. It thoroughly explains what the at-will relationship means. It clearly states that no company representative may change the at-will relationship through oral or written promises. It explains that the organization’s policies and practices are not intended to create a contract. It is prominently displayed, such as in bold type, a separate introductory policy, or set apart in other policies. It is repeated where appropriate in other policies, particularly those outlining work rules and disciplinary procedures. It is included in other employment documents, such as application forms and offer letters. Defend Your Policies, Not Your Method of Termination

Employee Rights Challenges A Balancing Act Random Drug Testing Companies that use drug tests must address several challenges such as establishing a policy, what to do with false positives, how to ensure security over urine specimens, and whether alternative tests should be used (e.g., performance tests). Whistle-blowing While federal employees who blow the whistle have certain legal protections, private-sector employees are far less protected. Because employees may decide to blow the whistle on an employer, many companies realize that it is in their best interest to establish a policy on whistle blowing.

Employee Rights Challenges A Balancing Act Electronic Testing Companies attempt to fight various forms of employee theft by electronic monitoring. To use this type of monitoring successfully, employees should know what devices are being used, employers should create ways in which monitoring is beneficial to the employees as well, the employer should develop appropriate policies which are publicized throughout the company.

Employee Rights Challenges A Balancing Act Employee privacy violations upheld by courts: Intrusion (locker room and bathroom surveillance) Publication of private matters Disclosure of medical records Appropriation of an employee’s name or likeness Actions triggering privacy violations: Background checks Monitoring off-duty conduct and lifestyle Drug testing Workplace searches Monitoring of workplace

Employee Rights Challenges A Balancing Act What do employers monitor about employees: E-mail activity Internet use Telephone calls Employers monitor employees to: Improve productivity. Protect from computer viruses Detect leaks of confidential information Guard against liability for illegal acts and harassment suits caused by employee misuse

Employee Rights Challenges A Balancing Act Restrictions on Workplace Monitoring The Electronic Communications Privacy Act (ECPA) The “business purpose exception” permits employers to monitor communications if they can show a legitimate business reason for doing so. The “consent exception” allows employers to monitor communications if they have their employees’ consent to do so.

Sample Monitoring Acknowledgement Statement

Disciplining Employees Progressive Discipline The most commonly used form of discipline, progressive discipline, consists of a series of management interventions that gives employees opportunities to correct their behavior before being discharged. Verbal warning Written warning Suspension Discharge

Categories of Employee Misconduct

Disciplining Employees Positive Discipline A discipline procedure that encourages employees to monitor their own behaviors and assume responsibility for their actions. Management still intervenes, but with counseling sessions as opposed to punishment.

Disciplining Employees Positive Discipline Issue an oral reminder. Should another incident arise within six weeks, issue a formal written reminder, a copy of which is placed in the employee’s personnel file. Give a paid, one-day “decision-making leave.” If no further incidents occur in the next year, the purge the one-day paid suspension from the person’s file. If the behavior is repeated, the next step is dismissal.

Administering and Managing Discipline Basic Standards of Discipline Communication of rules and performance criteria Documentation of the facts Consistent response to rule violations Hot-stove rule

Mistakes to Avoid When Administering Discipline Losing your temper Avoiding disciplinary action entirely Playing therapist Making excuses for an employee

Just Cause Standard of Discipline The Just Cause Standard of Discipline In many wrongful discharge cases, the U.S. courts place the burden of proof squarely on the employer. Often, the applicable standard (just cause) is stringent. Because of this, employers who believe their employees work under employment-at-will may decide on a less demanding standard.

The Just Cause Standard of Discipline Notification Reasonable rule Investigation before the discipline Fair investigation Proof of guilt Absence of discrimination Reasonable penalty The right to appeal

Grounds for Dismissal Unsatisfactory performance Persistent failure to perform assigned duties or to meet prescribed standards on the job. Misconduct in the workplace Deliberate and willful violation of the employer’s rules: stealing, rowdy behavior, and insubordination. Lack of qualifications for the job An employee’s inability to do the assigned work although he or she is diligent. Changed requirements or elimination of the job. An employee’s inability to do the work assigned, after the nature of the job has changed. Elimination of the employee’s job.

Managing Difficult Employees Poor Attendance Is the attendance rule reasonable? Has the employee been warned of the consequences of poor attendance? Are there any mitigating circumstances that should be taken into consideration?

Managing Difficult Employees Insubordination Direct disregard of the boss’s authority. Flat-out disobedience of, or refusal to obey, the boss’s orders—particularly in front of others. Deliberate defiance of clearly stated company policies, rules, regulations, and procedures. Public criticism of the boss. Contradicting or arguing with him or her is also negative and inappropriate. Blatant disregard of reasonable instructions. Contemptuous display of disrespect and, portraying these feelings while on the job. Disregard for the chain of command, shown by going around the immediate supervisor or manager with a complaint, suggestion, or political maneuver. Participation in (or leadership of ) an effort to undermine and remove the boss from power.

Avoiding Wrongful Discharge Suits Bases for wrongful discharge suits: Discharge does not comply with the law. Discharge does not comply with the contractual arrangement stated or implied by the firm via its employment application forms, employee manuals, or other promises. Avoiding wrongful discharge suits Set up employment policies and dispute resolution procedures that make employees feel treated fairly. Do the preparatory work that helps to avoid such suits.

Avoiding Wrongful Discharge Suits Have applicants sign the employment application and make sure it contains a clearly worded statement that employment is for no fixed term and that the employer can terminate at any time. Review your employee manual to look for and delete statements that could prejudice your defense in a wrongful discharge case. Have clear written rules listing infractions that may require discipline and discharge, and then make sure to follow the rules. If a rule is broken, get the worker’s side of the story in front of witnesses, and preferably get it signed. Then make sure to check out the story, getting both sides of the issue. Be sure to appraise employees at least annually. If an employee shows evidence of incompetence, give that person a warning and provide an opportunity to improve. All evaluations should be in writing and signed by the employee. Keep careful confidential records of all actions such as employee appraisals, warnings or notices, memos outlining how improvement should be accomplished, and so on.

Steps in Avoiding Wrongful Discharge Suits A final 10-step checklist would include: Is employee covered by any type of written agreement, including a collective bargaining agreement? Have any representations been made to form a contract? Is a defamation claim likely? Is there a possible discrimination allegation? Is there any workers’ compensation involvement? Have reasonable rules and regulations been communicated and enforced? Has employee been given an opportunity to explain any rule violations or to correct poor performance? Have all monies been paid within 24 hours after separation? Has employee been advised of his or her rights under COBRA? Has employee been advised of what the employer will tell a prospective employer in response to a reference inquiry?

Top Ten Reasons Your Employees Sue Fraudulent inducement - "You promised me something when you hired me and you knew it wasn't true [or showed reckless disregard for the truth]." During recruitment, did the company cross the line between "puffing" and misrepresenting? Did you make untrue factual representations intended to make the candidate accept the job?

Top Ten Reasons Your Employees Sue Money matters – "My paycheck isn't right." Did someone make but not honor a promise for salary level or benefits? Were commissions, bonus payments, or overtime wages miscalculated, paid late, or left out of a paycheck? Did the company properly document the salary offer, hours worked, commission schedules etc. to prove proper payment?

Top Ten Reasons Your Employees Sue Sex and beyond part one – “You harassed me.” Did management create a hostile work environment, where the harassment is based on sex, race, age, national origin, height, weight, marital status, or military service? Have you prepared, distributed, and consistently applied a written harassment policy? Has the company educated supervisors and employees and documented the training?

Top Ten Reasons Your Employees Sue Sex and beyond part two - "You allowed other people to harass or otherwise mistreat me." Did the company know about but fail to remedy a hostile work environment created by co-workers, customers, vendors, or other outside/third parties? Did the company hire or retain somebody known to harass people on the basis of their sex, race or other protected category?

Top Ten Reasons Your Employees Sue Sex and beyond, the final chapter - "You expressly discriminated against me because ______ (fill in a protected category)." Did you fire, demote, fail to hire or promote, or take other adverse employment action against someone because of their sex, race, etc.?

Top Ten Reasons Your Employees Sue Accommodation issues - "I've fallen and I can't get up, and you failed to accommodate my disability." Were you aware of physical or mental disabilities or medically documented restrictions on hours worked, physical activities, or other limitations? Did you reasonably accommodate such restrictions or determine that to do so would cause an undue hardship?

Top Ten Reasons Your Employees Sue Time away - "You didn't grant me required leave." Are you covered by and did you comply with Family and Medical Leave Act requirements? Did you follow your own employee handbook provisions regarding vacation or other time off? Did you meet requirements under the Americans with Disabilities Act?

Top Ten Reasons Your Employees Sue Getting even - "You retaliated against me because I was a whistleblower or a union organizer or because I made a claim, filed a complaint, or otherwise exercised my rights under the FMLA, ADA, civil rights acts, worker's compensation act, or other law." Did you take adverse action against an employee after they exercised a protected right? Did you document the true cause behind the action to show that your decision was based on a legitimate, non-retaliatory reason?

Top Ten Reasons Your Employees Sue Contract claims - "You promised me outright or implied that I could only be discharged for cause." Are you an at-will employer that expressly states that fact in your application and/or employment handbook? Did you obtain the employee's written acknowledgment and understanding of your standard? Did you undermine an at-will policy in a job offer letter or by having a "probationary period"?

Top Ten Reasons Your Employees Sue Money still matters - "You didn't pay me what you owed me or give me benefits due when I left your employment." Did you give applicable notice for issues such as COBRA rights? Was the last paycheck accurate and timely given? Did you improperly withhold any amount from the final paycheck? If commissions are involved, did the company follow the special rules applicable to such arrangements? Did you follow your own written policies regarding vacation pay, personal time, bonuses, and other benefits?

Preventing the Need for Discipline with HRM Recruitment and Selection By spending more time and resources on recruiting and selection, managers can make better staffing decisions. Training and Development By investing in training and development today, managers can reduce the likelihood of large numbers of incompetent or obsolete employees in the future.

Preventing the Need for Discipline with HRM Human Resource Planning By using human resource planning so that jobs are motivating and challenging, managers can reduce poor performance problems. Performance Appraisal By creating effective performance appraisal systems, managers can communicate expectations and the performance improvements needed. Compensation By developing compensation systems that are fair and recognize the employees' contributions, managers gain employee respect and continued future contributions.