Chapter 13 Employee Rights and Discipline

Copyright © 2004 South-Western. All rights reserved.
PowerPoint Presentation by Charlie Cook

Copyright © 2004 South-
Western. All rights reserved. 13–2
Objectives
After studying this chapter, you should be able to:
1. Explain the concepts of employee rights and
employer responsibilities.
2. Explain the concepts of employment-at-will,
wrongful discharge, implied contract, and
constructive discharge.
3. Identify and explain the privacy rights of
employees.
4. Explain the process of establishing disciplinary
policies, including the proper implementation of
organizational rules.

Objectives (cont’d)
After studying this chapter, you should be able to:
5. Discuss the meaning of discipline and how to
investigate a disciplinary problem.
6. Differentiate between the two approaches to
disciplinary action.
7. Identify the different types of alternative dispute
resolution procedures.
8. Discuss the role of ethics in the management of
human resources.

Employee Rights and Privacy
• Employee Rights
Guarantees of fair treatment from employers,
particularly regarding an employee’s right to privacy.
• Negligence
Failure to provide reasonable care where such failure
results in injury to consumers or other employees.
• Employment-at-Will Principle
The right of an employer to fire an employee without
giving a reason and the right of an employee to quit
when he or she chooses.

Implied Covenant
Employment-at-Will Doctrine and Wrongful
Discharge
Violation of Public
Policy
Implied Contract
Exceptions to
Employment-at- Will

Exceptions to Employment-at-Will
• Violations of Public Policy
Wrongful discharge of an employee by an employer
for refusal commit an act that to violates the law.
• Implied Contract
Wrongful discharge contrary to an employer’s oral or
written promises of continued employment.
• Implied Covenant
Wrongful discharge for a lack of fair dealing on part of
employer.
Presentation Slide 13–1

Discharges That Violate Public Policy
• An employer may not terminate an employee for:
 Refusing to commit perjury on the employer’s behalf
 Cooperating with a government agency in the
investigation of a charge or giving testimony
 Refusing to violate a professional code of conduct
 Reporting OSHA infractions
 Refusing to support a law or a political candidate favored
by the employer
 “Whistle-blowing,” or reporting illegal conduct by the
employer
 Informing a customer that the employer has stolen
property from the customer
 Complying with a summons to jury duty
Figure 13.1

Avoiding Wrongful Employment
Termination Lawsuits
• Terminate an employee only if there is an
articulated reason.
• Set and follow termination rules and schedules.
• Document all performance problems.
• Be consistent with employees in similar
situations.
Figure 13.2

Illegal Employee Dismissals
• Constructive Discharge
An employee voluntarily terminates his or her
employment because of harsh, unreasonable
employment conditions placed on the individual by
the employer.
Employers cannot accomplish covertly what they are
prohibited by law from achieving overtly.
 Courts have generally adopted a “reasonable person”
standard for upholding constructive discharge claims.

Illegal Employee Dismissals (cont’d)
• Retaliation Discharge
Title VII of the Civil Rights Act, the Age Discrimination
in Employment Act, the Americans with Disabilities
Act, and other employment laws prohibit employers
from retaliating against employees when they
exercise their rights under these statutes.
Proper handling of these employees involves:
 Taking no adverse employment action against
employees when they file discrimination charges.
 Treating the employees consistently and objectively.
 Harboring no animosity toward the employees when they
file discrimination lawsuits.

Plant Closing Notification
• Workers’ Adjustment Retraining and Notification
Act (WARN)-1989
Requires organizations with more than 100
employees to give employees and their communities
sixty days’ notice of any closure or layoff affecting fifty
or more full-time employees.
 Terminated employees must be notified individually in
writing.
The act allows several exemptions, including
“unforeseeable circumstances.”

Privacy Concerns
• Substance Abuse and DrugSubstance Abuse and Drug
TestingTesting
• Searches and SurveillanceSearches and Surveillance
• Access to Personnel FilesAccess to Personnel Files
• E-mail and Voice MailE-mail and Voice Mail
• Conduct Outside theConduct Outside the
WorkplaceWorkplace
• Genetic TestingGenetic Testing
• Substance Abuse and DrugSubstance Abuse and Drug
TestingTesting
• Searches and SurveillanceSearches and Surveillance
• Access to Personnel FilesAccess to Personnel Files
• E-mail and Voice MailE-mail and Voice Mail
• Conduct Outside theConduct Outside the
WorkplaceWorkplace
• Genetic TestingGenetic Testing
EmployeeEmployee
PrivacyPrivacy
versusversus
EmployerEmployer
ObligationsObligations
EmployeeEmployee
PrivacyPrivacy
versusversus
EmployerEmployer
ObligationsObligations

Substance Abuse and Drug Testing
• Drug-Free Workplace Act (1988)
• Sensitive Position Individuals
Employees who can be required to submit to a drug
test even without an “individualized suspicion”of drug
usage.
• Job Applicants
Applicants can be required to submit to a drug test.

Substance Abuse and Drug Testing
(cont’d)
• ADA and Drug Addiction
Rehabilitated drug users are considered disabled.
Current drug users are not covered by ADA.
• Issues in Drug Testing
Reasonable suspicion or probable cause
requirements
Impairment (fitness for duty), mandatory and random
drug testing
Validity and reliability of drug tests
Chain-of-custody of test samples

Instances of Employer Drug Testing
• Pre-employment screening of job applicants
• Individuals in safety-sensitive positions
• Individuals in security-sensitive positions
• Reasonable suspicion of drug usage
• Post-accident testing for presence of drugs
• Return-to-duty testing to clear return to work
• Follow-up after initial testing failure
• Random testing to deter drug use
Figure 13.3

Employee Searches and Surveillance
• The search policy should be widely publicized and should
advocate a probable or compelling reason for the search.
• The search policy should be applied in a reasonable,
evenhanded manner.
• Where possible, searches should be conducted in private.
• The employer should attempt to obtain the employee’s consent
prior to the search.
• The search should be conducted in a humane and discreet
manner to avoid infliction of emotional distress.
• The penalty for refusing to consent to a search should be
specified.
HRM 1

Right-to-Privacy Laws
Figure 13.4a

Right-to-Privacy Laws (cont’d)
Figure 13.4b

Personnel Files: Policy Guidelines
• Ensure compliance with applicable state laws.
• Define what information is to be kept in employee files.
• Develop categories of personnel information, depending on
legal requirements and organizational needs.
• Specify where, when, how, and under what circumstances
employees may review or copy their files.
• Identify individuals allowed to view personnel files.
• Prohibit the collection of information that could be viewed as
discriminatory or could form the basis for an invasion-of-
privacy suit.
• Audit employment records on a regular basis to remove
irrelevant, outdated, or inaccurate information.
Figure 13.5

E-Mail, Internet, and Voice Mail: Policy Guidelines
• Ensure compliance with federal and state legislation.
• Specify the circumstances, if any, under which the system can be
used for personal business.
• Specify that confidential information not be sent on the network.
• Set forth the condition under which monitoring will be done—by
whom, how frequently, and with what notification to employees.
• Specify that e-mail and voice mail information be sent only to users
who need it for business purposes.
• Expressly prohibit use of e-mail or voice mail to harass others or to
send anonymous messages.
• Make clear that employees have no privacy rights in any material
delivered or received through e-mail or voice mail.
• Specify that employees who violate the policy are subject to
discipline, including discharge.
Figure 13.6

A Disciplinary Model
Figure 13.7
OrganizationOrganization
disciplinediscipline
policypolicy
OrganizationOrganization
policypolicy
Definition ofDefinition of
Definition ofDefinition of
Violation ofViolation of
organizationalorganizational
rulesrules
Violation ofViolation of
organizationalorganizational
rulesrules
InvestigationInvestigation
of employeeof employee
offenseoffense
InvestigationInvestigation
of employeeof employee
offenseoffense
DisciplinaryDisciplinary
InterviewInterview
DisciplinaryDisciplinary
InterviewInterview
ProgressiveProgressive
ProgressiveProgressive
disciplinediscipline Due ProcessDue ProcessDue ProcessDue Process Just causeJust causeJust causeJust cause
DischargeDischargeDischargeDischarge

Common Disciplinary Problems
• Attendance
 Unexcused absence
 Chronic absenteeism
 Unexcused/excessive
tardiness
 Leaving without
permission
• Work Performance
 Not completing work
assignments
 Producing substandard
products or services
 Not meeting established
production requirements
• Dishonesty And Related
Problems
 Theft
 Falsifying employment
application
 Willfully damaging
organizational property
 Punching another
employee’s time card
 Falsifying work records
Figure 13.8a

Common Disciplinary Problems (cont’d)
• On-the-job Behaviors
 Intoxication at work
 Insubordination
 Horseplay
 Smoking in unauthorized
places
 Fighting
 Gambling
 Failure to use safety devices
 Failure to report injuries
 Carelessness
 Sleeping on the job
 Using abusive or
threatening language
with supervisors
 Possession of narcotics
or alcohol
 Possession of firearms
or other weapons
 Sexual harassment
Figure 13.8b

Implementing Organizational Rules
Publish Widely Keep in Writing
Explain Reasons Remind/Restate
Get Signed Statements
of Understanding
Review Regularly Be Reasonable
GuidelinesGuidelines
for thefor the
ImplementationImplementation
ofof
OrganizationalOrganizational
RulesRules

The Hot-Stove Approach to Rule
Enforcement
• Hot-Stove Rule
Rule of discipline that can be
compared with a hot stove in
that it gives warning, is
effective immediately, is
enforced consistently, and
applies to all employees in
an impersonal and unbiased
way.

Disciplinary Action for Violation of Rules
• Are rules fair and reasonable?
• Have rules been communicated sufficiently to
make employee aware of them?
• Have rules been enforced previously?
• Should and did employee receive prior warning?
• Is employee being singled out as an example?

Discipline
• Definitions of Discipline
Treatment that punishes.
Orderly behavior in an organizational setting.
Training that molds and strengthens desirable
conduct or corrects undesirable conduct and
develops self-control.

13–28Copyright © 2004 South-Western. All rights reserved.
Documentation of Employee Misconduct
• Date, time, and location of the incident(s)
• Description of the problem/misconduct
• Consequences of misconduct on employee and/or work
unit
• Prior discussions with employee about conduct
• Disciplinary action to be taken and specific improvement
expected
• Consequences for employee if behavior is not changed
and follow-up date
• Reaction of employee to supervisor’s efforts
• Names of witnesses to incident

Considerations in Disciplinary
Investigations
• In very specific terms, what is the offense
charged?
• Did the employee know he or she was doing
something wrong?
• Is the employee guilty?
• Are there extenuating circumstances?
• Has the rule been uniformly enforced?
• Is the offense related to the workplace?
• What is the employee’s past work record?
Figure 13.9

The Investigative Interview
• Conduct of an Interview
Concentrate on how the offense violated the
performance and behavior standards of the job.
Avoid getting into personalities or areas unrelated to
job performance.
Give the employee must be given a full opportunity to
explain his or her side of the issue.
• NLRB v Weingarten,Inc.
The Supreme Court upheld an NLRB ruling in favor of
the employee’s right to representation during an
investigative interview in a unionized organization.

Approaches to Discipline
• Progressive Discipline
Application of corrective measures by increasing
degrees.
 Employees always know where they stand regarding
offenses.
 Employees know what improvement is expected of them.
 Employees understand what will happen next if
improvement is not made.
• Positive, or Non-punitive, Discipline
Discipline that focuses on the early correction of
employee misconduct, with the employee taking total
responsibility for correcting the problem.

Positive Discipline Procedure
Figure 13.10

Disciplinary Action for Unsatisfactory
Performance
• Do clear and objective performance standards exist?
• Has employee received proper orientation and training?
• Is the unsatisfactory performance caused by conditions
beyond employees’ control?
• Has employee been given adequate warning and time
to improve performance?
• Are the other employees meeting performance
standards?

Considerations When Discharging an
Employee
• What is the employee’s length of service?
• What is the employee’s previous service record?
• Did employee receive warning and lesser
penalties, i.e., progressive discipline?
• Did employer use every means possible to avoid
the discharge?
• Are there any evidences of prejudice or bias
toward employee?

“Just Cause”Discharge Guidelines
• Was the employee warned of the disciplinary consequences of
misconduct?
• Were management’s requirements of the employee
reasonable?
• Was it established that the employee’s performance was
unsatisfactory?
• Was an investigation conducted in a fair and objective manner?
• Is there sufficient evidence of proof of guilt as charged?
• Was the employee treated the same as other employees in
similar circumstances?
• Did the discharge fit the misconduct, the employee’s service
record, and any mitigating circumstances?
Figure 13.11

Due Process
• An employee’s right to present his or her
position during a disciplinary action.
To know job expectations and the consequences of
not fulfilling those expectations.
To consistent and predictable management action for
the violation of rules.
To fair discipline based on facts,
to question those facts, and the
right to present a defense.
To appeal disciplinary action.
The right to progressive discipline.

Alternative Dispute Resolution
• “ADR”
The term applied to different types of employee
complaint or dispute-resolution procedures.
• ADR Procedures
Step-Review Systems
Peer-Review Systems
Open-Door Policy
Ombudsman System
Mediation
Arbitration

Alternative Dispute Resolution Procedures
• Step-Review System
System for reviewing employee complaints and
disputes by successively higher levels of
management.
• Peer-Review System
A group composed of equal numbers of employee
representatives and management appointees.
Functions as a jury since its members weigh
evidence, consider arguments, and after deliberation,
vote independently to render a final decision.

Conventional Step-Review Appeal
Procedure
Figure 13.12

Additional ADR Procedures
• Open-Door Policy
A policy of settling grievances that identifies various
levels of management above the immediate
supervisor for employee contact.
• Ombudsman
A designated individual from whom employees may
seek counsel for the resolution of their complaints.
They do not have power to overrule the decision
made by an employee’s supervisor, but they should
be able to appeal the decision up the line if they
believe an employee is not being treated fairly.

Third-party Dispute Resolution
• Mediation
The use of an impartial neutral to reach a
compromise decision in employment disputes
• Mediator
A third party in an employment dispute who meets
with one party and then the other in order to suggest
compromise solutions or to recommend concessions
from each side that will lead to an agreement.

Third-party Dispute Resolution (cont’d)
• Arbitration
The use of an impartial neutral party as decision
maker to resolve an employment labor dispute by
imposing a binding final decision on all parties
involved in the dispute.
• Arbitrator
Third-party neutral who resolves a labor dispute by
issuing a final decision in the disagreement.

Managerial Ethics in Employee Relations
• Ethics
The set of standards of conduct and moral judgments
that help to determine right and wrong behavior.
Provides cultural guidelines—organizational or
societal—that help decide between proper or
improper conduct.
• Code of Ethics
A written set of standards of conduct (ethical values)
that governs relations with employees and the public.
Provides a basis for the organization, and individual
managers, to evaluate their plans and actions.

Chapter 13 Employee Rights and Discipline

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