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Respecting Employee Rights and Managing Discipline


CHAPTER 14 Respecting Employee Rights and Managing Discipline Chapter Objectives Understand the origins and the scope of employee rights and management rights Explain ... – PowerPoint PPT presentation

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Title: Respecting Employee Rights and Managing Discipline

  • Respecting Employee Rights and Managing Discipline

Chapter Objectives
  • Understand the origins and the scope of employee
    rights and management rights
  • Explain why the HR department must balance
    managements 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
  • 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
  • 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 - Dont 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 organizations 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

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 employees 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
  • 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 employees 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
    persons file.
  • If the behavior is repeated, the next step is

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
  1. Losing your temper
  2. Avoiding disciplinary action entirely
  3. Playing therapist
  4. 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

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
    employers rules stealing, rowdy behavior, and
  • Lack of qualifications for the job
  • An employees inability to do the assigned work
    although he or she is diligent.
  • Changed requirements or elimination of the job.
  • An employees inability to do the work assigned,
    after the nature of the job has changed.
  • Elimination of the employees 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 bosss authority.
  • Flat-out disobedience of, or refusal to obey, the
    bosss ordersparticularly 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
  • 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
  • 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
  • Do the preparatory work that helps to avoid such

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 workers 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
  • Have any representations been made to form a
  • 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
  • Have all monies been paid within 24 hours after
  • 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
  • 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
  • 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
  • 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
  • Were you aware of physical or mental disabilities
    or medically documented restrictions on hours
    worked, physical activities, or other
  • Did you reasonably accommodate such restrictions
    or determine that to do so would cause an undue

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
  • Are you an at-will employer that expressly states
    that fact in your application and/or employment
  • Did you obtain the employee's written
    acknowledgment and understanding of your
  • Did you undermine an at-will policy in a job
    offer letter or by having a "probationary

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
  • 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
  • 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
  • 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.