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Chapter 16 Employee Rights and Discipline
1.
Copyright © 2005
Thomson Business & Professional Publishing. All rights reserved. ROBERT L. MATHIS JOHN H. JACKSON PowerPoint Presentation by Charlie Cook The University of West Alabama Employee RightsEmployee Rights and Disciplineand Discipline Chapter 16Chapter 16 SECTION 5SECTION 5 EmployeeEmployee RelationsRelations
2.
Copyright © 2005
Thomson Business & Professional 16–2 Learning ObjectivesLearning ObjectivesLearning ObjectivesLearning Objectives • After you have read this chapter, you should be able to: Explain the difference between statutory rights and contractual rights. Define employment-at-will and discuss how wrongful discharge, just cause, and due process are interrelated. Identify employee rights associated with access to employee records and free speech. Discuss issues associated with workplace monitoring, employer investigations, and drug testing. List elements to consider when developing an employee handbook. Differentiate between the positive approach and progressive approach to discipline.
3.
Copyright © 2005
Thomson Business & Professional 16–3 Rights and Responsibilities IssuesRights and Responsibilities IssuesRights and Responsibilities IssuesRights and Responsibilities Issues • Rights That which belongs to a person by law, nature, or tradition. • Responsibilities Obligations to perform certain tasks and duties. • Statutory Rights Rights based on specific laws and statutes passed by federal, state, and local governments. Equal employment opportunity Collective bargaining Workplace safety
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Thomson Business & Professional 16–4 Contractual RightsContractual RightsContractual RightsContractual Rights • Contractual Rights Rights based on a specific contract between employer and employee. Can be spelled out formally in written employment contracts or implied in employee handbooks and published policies.. • Employment Contract An agreement that formally outlines the details of employment. • Implied Contract The idea that a contract exists between the employer and the employee based on the implied promises of the employer.
5.
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Thomson Business & Professional 16–5 Typical ProvisionsTypical Provisions in Employmentin Employment ContractsContracts Typical ProvisionsTypical Provisions in Employmentin Employment ContractsContracts Figure 16–1
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Copyright © 2005
Thomson Business & Professional 16–6 Contractual RightsContractual RightsContractual RightsContractual Rights • Non-Compete Agreements Prohibit individuals who quit from competing with an employer in the same line of business for a specified period of time. Non-piracy agreements bar former employees from soliciting business from former customers and clients for a specified period of time. Non-solicitation of current employees agreements prevent a former employee encouraging former co-workers to join a different company, often a competitor. Intellectual property and trade secrets prevent former employees from revealing key competitive information.
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Thomson Business & Professional 16–7 Employment Practices Liability InsuranceEmployment Practices Liability InsuranceEmployment Practices Liability InsuranceEmployment Practices Liability Insurance • Employment Practices Liability Insurance (EPLI) Covers employer’s costs for legal fees, settlements, and judgments associated with employment-related actions such as: Discrimination Wrongful discipline Sexual harassment Wrongful termination Negligent evaluation Infliction of emotional distress Breach of employment contract Deprivation of career opportunity Improper management of employee benefits
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Thomson Business & Professional 16–8 Rights Affecting the EmploymentRights Affecting the Employment RelationshipRelationship Rights Affecting the EmploymentRights Affecting the Employment RelationshipRelationship • Employment-at-Will (EAW) Common law doctrine that employers have the right to hire, fire, demote, or promote as they choose, unless there is a law or contract to the contrary. Employees have the right to quit and got another job under the same constraints. • Wrongful Discharge Termination of an individual’s employment for reasons that are improper or illegal. Fortune v. National Cash Register
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Thomson Business & Professional 16–9 Exceptions to Employment-at-WillExceptions to Employment-at-WillExceptions to Employment-at-WillExceptions to Employment-at-Will Public PolicyPublic PolicyPublic PolicyPublic Policy Good-FaithGood-Faith and Fair-and Fair- DealingDealing Good-FaithGood-Faith and Fair-and Fair- DealingDealing ImpliedImplied ContractContract ImpliedImplied ContractContract An employee can sue an employer if he or she wasAn employee can sue an employer if he or she was fired for refusing the employer’s demand to violatefired for refusing the employer’s demand to violate public policy (“break the law”).public policy (“break the law”). An employee can sue an employer if he or she wasAn employee can sue an employer if he or she was fired for refusing the employer’s demand to violatefired for refusing the employer’s demand to violate public policy (“break the law”).public policy (“break the law”). An employee can sue an employer if the employer’sAn employee can sue an employer if the employer’s actions or inaction constitute an implied contract ofactions or inaction constitute an implied contract of continuing employment.continuing employment. An employee can sue an employer if the employer’sAn employee can sue an employer if the employer’s actions or inaction constitute an implied contract ofactions or inaction constitute an implied contract of continuing employment.continuing employment. If the employer’s unruly behavior breaks a covenantIf the employer’s unruly behavior breaks a covenant of good faith with the employee, then that employeeof good faith with the employee, then that employee can sue the employer.can sue the employer. If the employer’s unruly behavior breaks a covenantIf the employer’s unruly behavior breaks a covenant of good faith with the employee, then that employeeof good faith with the employee, then that employee can sue the employer.can sue the employer.
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Thomson Business & Professional 16–10 Keys for Preparing a Defense Against Wrongful Discharge:Keys for Preparing a Defense Against Wrongful Discharge: The “Paper Trail”The “Paper Trail” Keys for Preparing a Defense Against Wrongful Discharge:Keys for Preparing a Defense Against Wrongful Discharge: The “Paper Trail”The “Paper Trail” Figure 16–2
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Thomson Business & Professional 16–11 Employment-at-Will (EAW) RestrictionsEmployment-at-Will (EAW) RestrictionsEmployment-at-Will (EAW) RestrictionsEmployment-at-Will (EAW) Restrictions • Constructive Discharge An employer deliberately makes working conditions intolerable for an employee in an attempt to get (to force) that employee to resign or quit. • Just Cause Reasonable justification for taking an employment- related action.
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Thomson Business & Professional 16–12 Criteria for Evaluating Just Cause and Due ProcessCriteria for Evaluating Just Cause and Due ProcessCriteria for Evaluating Just Cause and Due ProcessCriteria for Evaluating Just Cause and Due Process Figure 16–3
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Thomson Business & Professional 16–13 Due ProcessDue ProcessDue ProcessDue Process • Due Process The means used for 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.
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Thomson Business & Professional 16–14 Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR) OmbudsOmbudsOmbudsOmbuds ArbitrationArbitrationArbitrationArbitration Peer Review PanelPeer Review PanelPeer Review PanelPeer Review Panel AlternativeAlternative DisputeDispute ResolutionResolution AlternativeAlternative DisputeDispute ResolutionResolution
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Thomson Business & Professional 16–15 Balancing Employer Security ConcernsBalancing Employer Security Concerns and Employee Rightsand Employee Rights Balancing Employer Security ConcernsBalancing Employer Security Concerns and Employee Rightsand Employee Rights • Right to Privacy Defined in legal terms for individuals as the freedom from unauthorized and unreasonable intrusion into their personal affairs. • Privacy Rights and Employee Records: Access to personal information held by employer Response to unfavorable information in records Correction of erroneous information Notification when information is given to a third party
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Thomson Business & Professional 16–16 Employee Record FilesEmployee Record FilesEmployee Record FilesEmployee Record Files Figure 16–4
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Thomson Business & Professional 16–17 Employee RecordsEmployee RecordsEmployee RecordsEmployee Records • ADA Provisions Employee medical records are to be kept as separate confidential files available under limited conditions specified in the ADA. • Security of HR Records Restrict access to all HR records Utilize confidential passwords to HRIS databases Place sensitive information in separate files and restricted databases Inform employees of types of data to retain Purge outdated data from records Release information only with employee’s consent
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Thomson Business & Professional 16–18 Employee Free Speech RightsEmployee Free Speech RightsEmployee Free Speech RightsEmployee Free Speech Rights Monitoring ofMonitoring of E-Mail/Voice MailE-Mail/Voice Mail Monitoring ofMonitoring of E-Mail/Voice MailE-Mail/Voice Mail Advocacy ofAdvocacy of Controversial ViewsControversial Views Advocacy ofAdvocacy of Controversial ViewsControversial Views Whistle-BlowingWhistle-BlowingWhistle-BlowingWhistle-Blowing EmployeeEmployee Speech in theSpeech in the WorkplaceWorkplace EmployeeEmployee Speech in theSpeech in the WorkplaceWorkplace
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Thomson Business & Professional 16–19 E-mail and Voice MailE-mail and Voice MailE-mail and Voice MailE-mail and Voice Mail • Electronic Communications Policy Elements Voice mail, e-mail, and computer files are provided by the employer and are 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 the right to monitor or search any of the media, without notice, for business purposes.
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Thomson Business & Professional 16–20 Recommended Employer Actions on E-mail and Voice MailRecommended Employer Actions on E-mail and Voice MailRecommended Employer Actions on E-mail and Voice MailRecommended Employer Actions on E-mail and Voice Mail Figure 16–5
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Thomson Business & Professional 16–21 Workplace MonitoringWorkplace MonitoringWorkplace MonitoringWorkplace Monitoring Conducting VideoConducting Video Surveillance at WorkSurveillance at Work Conducting VideoConducting Video Surveillance at WorkSurveillance at Work Tracking InternetTracking Internet UseUse Tracking InternetTracking Internet UseUse Monitoring EmployeeMonitoring Employee PerformancePerformance Monitoring EmployeeMonitoring Employee PerformancePerformance EmployeeEmployee PrivacyPrivacy EmployeeEmployee PrivacyPrivacy
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Thomson Business & Professional 16–22 Employer InvestigationsEmployer InvestigationsEmployer InvestigationsEmployer Investigations Conducting Work-Conducting Work- Related InvestigationsRelated Investigations Conducting Work-Conducting Work- Related InvestigationsRelated Investigations Honesty andHonesty and Polygraph TestsPolygraph Tests Honesty andHonesty and Polygraph TestsPolygraph Tests Reviewing UnusualReviewing Unusual BehaviorBehavior Reviewing UnusualReviewing Unusual BehaviorBehavior WorkplaceWorkplace ConductConduct WorkplaceWorkplace ConductConduct
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Thomson Business & Professional 16–23 Means Used to Reduce Employee TheftMeans Used to Reduce Employee Theft and Misconductand Misconduct Means Used to Reduce Employee TheftMeans Used to Reduce Employee Theft and Misconductand Misconduct Figure 16–6
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Thomson Business & Professional 16–24 Substance Abuse and Drug TestingSubstance Abuse and Drug TestingSubstance Abuse and Drug TestingSubstance Abuse and Drug Testing • Drug-Free Workplace Act of 1988 Requires government contractors to take steps to eliminate employee drug use. Failure to do so can lead to contract termination. Tobacco and alcohol do not qualify as controlled substances under the act, and off-the-job drug use is 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.
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Thomson Business & Professional 16–25 How Substance Abuse Affects Employers FinanciallyHow Substance Abuse Affects Employers FinanciallyHow Substance Abuse Affects Employers FinanciallyHow Substance Abuse Affects Employers Financially Figure 16–7
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Thomson Business & Professional 16–26 Drug Testing and Employee RightsDrug Testing and Employee RightsDrug Testing and Employee RightsDrug Testing and Employee Rights • Conducting Drug Tests Random testing of all employees at periodic intervals Testing only in cases of probable cause Testing after accidents • When to Test (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.
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Thomson Business & Professional 16–27 HR Policies, Procedures, and RulesHR Policies, Procedures, and RulesHR Policies, Procedures, and RulesHR 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”
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Thomson Business & Professional 16–28 Typical Division of HR Responsibilities:Typical Division of HR Responsibilities: Policies, Procedures, and RulesPolicies, Procedures, and Rules Typical Division of HR Responsibilities:Typical Division of HR Responsibilities: Policies, Procedures, and RulesPolicies, Procedures, and Rules Figure 16–8
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Thomson Business & Professional 16–29 Employee HandbooksEmployee HandbooksEmployee HandbooksEmployee Handbooks • Legal Review of Language Eliminate controversial phrases in wording. Use disclaimers disavowing handbook as a contract. Keep handbook content current. • Readability Adjust reading level of handbook for intended audience of employees. • Use Communicate and discuss handbook. Notify all employees of changes in the handbook.
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Thomson Business & Professional 16–30 Communicating HR InformationCommunicating HR InformationCommunicating HR InformationCommunicating HR Information CommunicatingCommunicating HR InformationHR Information CommunicatingCommunicating HR InformationHR Information InternalInternal Publications andPublications and MediaMedia InternalInternal Publications andPublications and MediaMedia Downward andDownward and Upward InternalUpward Internal CommunicationsCommunications Downward andDownward and Upward InternalUpward Internal CommunicationsCommunications ElectronicElectronic CommunicationCommunication ElectronicElectronic CommunicationCommunication
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Thomson Business & Professional 16–31 Employee DisciplineEmployee DisciplineEmployee DisciplineEmployee Discipline •Discipline A form of training that enforces organizational rules. •Positive Discipline Approach 1. Counseling 2. Written Documentation 3. Final Warning (decision day-off) 4. Discharge
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Thomson Business & Professional 16–32 Progressive Discipline ProcessProgressive Discipline ProcessProgressive Discipline ProcessProgressive Discipline Process Figure 16–10
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Thomson Business & Professional 16–33 Typical Division of HR Responsibilities:Typical Division of HR Responsibilities: DisciplineDiscipline Typical Division of HR Responsibilities:Typical Division of HR Responsibilities: DisciplineDiscipline Figure 16–9
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Thomson Business & Professional 16–34 Reasons Why Discipline Might Not Be UsedReasons Why Discipline Might Not Be UsedReasons Why Discipline Might Not Be UsedReasons Why Discipline Might Not Be Used • Organization culture of avoiding discipline • Lack of support by higher management • Guilt overcomes ability to discipline • Fear of Loss of friendship • Avoidance of time loss • Fear of lawsuits
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Thomson Business & Professional 16–35 The Hot Stove RuleThe Hot Stove RuleThe Hot Stove RuleThe Hot Stove Rule • Good discipline (or a rule) is like a hot stove in that: It provides a warning (feels hot) It is consistent (burns every time) It is immediate (burns now) It is impersonal (burns all alike)
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Thomson Business & Professional 16–36 Discharge: The Final Disciplinary StepDischarge: The Final Disciplinary StepDischarge: The Final Disciplinary StepDischarge: The Final Disciplinary Step • Termination Process Coordinate manager and HR review Select a neutral location Conduct the termination meeting Have HR discuss termination benefits. Escort the employee from the building Notify the department staff • Separation agreement An agreement in which a terminated employee agrees not to sue the employer, in exchange for specified benefits.
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