Employee Rights & Responsibilities

Module 6

Exercise• Everyone get up and move at least 3 seats away

from where you are right now?

Rights and Responsibilities IssuesRights

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.Minimum WageEqual employment opportunityCollective bargainingWorkplace safety

Contractual RightsContractual 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 ContractAn agreement that formally outlines the details of employment.Originally for executive managers

Implied ContractThe idea that a contract exists between the employer and the

employee based on the implied promises of the employer. Enforceable in court.

Contractual RightsNon-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.

Rights Affecting the Employment Relationship• 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 get another job under the same constraints.

• Horace Gay Wood– “Master and Servant” treatise- 1877• Described Employment At Will• Cited Court Cases• Stated it was accepted by courts• Completely falsified

• 1887 - McCullough Iron Co. v. Carpenter– -One of first cases to cite Wood’s treatise stating “[Wood’s treatise] is an American

authority of high repute”

• Union Represented employees are not EAW employees

Wrongful Discharge• Wrongful Discharge• Termination of an individual’s employment for reasons

that are illegal or improper (covenant of good faith and good dealing).• Fortune v. National Cash Register• Violation of covenant of good faith and fair dealing

• Exceptions to EAW• Public Policy• Employment Contracts (Express / Implied Contracts)• Good Faith

Keys for Preparing a Defense Against Wrongful Discharge: The “Paper Trail”

Employment-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.

Criteria for Evaluating Just Cause and Due Process

Due Process• Due Process• The means used for individuals to explain and defend

their actions against charges or discipline.• Unionized due process based on grievance procedures

• Distributive Justice• Perceived fairness in the distribution of outcomes.

• Procedural Justice• Perceived fairness of the process used to make decision

about employees.

• The issue of transparency

Jack Welch on transparency(Winning)• “Candor is the biggest little dirty secret in business” • “lack of candor basically blocks smart ideas, fast action and good people

contributing all they’ve got.”• “When you’ve got candor, everything just operates faster and better.”• Candor: 1) gets more people in the conversation, 2) generates the ability to

debate rapidly (the 5 person start-up down the street can move faster than you. Candor is a way to keep up), 3) Cuts costs (all the meaningless reports and conversations that unnecessarily “frame” or “spin” things.

• “To get candor you reward it, praise it and talk about it. You make public heroes out of those to demonstrate it”.

• “Candor works because candor unclutters”

Employment 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

Balancing Employer Security Concernsand 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

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.

Employee 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

E-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.

Recommended Employer Actions on E-mail and Voice Mail

Should Employers Use Social Media in Recruiting? (Prohibited in 18 states and proposed in 26 others and Federally)

• YES!• 77% of firms do it• Writing Skills• Where socially active• Real, not hypothetical

data• Ask for an explanation

• NO!• Would you peek in their

front window?• Not job related data =

risky• Unverifiable accuracy• Grape Juice or Wine in

the picture?

Substance 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.

How Substance Abuse Affects Employers Financially

Drug Testing and Employee RightsConducting Drug Tests

Random testing of all employees at periodic intervalsTesting only in cases of probable causeTesting after accidents

When to Test (Conditions)Job consequences outweigh privacy concernsAccurate test procedures are availableWritten consent of the employee is obtainedResults are treated confidentiallyEmployer has drug program, including an EAP.

C:\Documents and Settings\James Avey\My

Drug Testing

80% of major firms test

Positive- get second opinion

Adulterants/Dilution Tests- cheap but only on request

Alcohol on the Job

You are a manager for Build Big Construction Co. After a daily lunch break there is an extreme accident in which a large piece of machinery was backed into an employee’s car. The operator responsible claims it was a legitimate accident while the distressed victim makes some outrageous claims about the operator drinking while on his lunch break and therefore being clearly responsible. There is a clear no drug/alcohol policy in the employee handbook which is well known.• What are the steps that would go into an investigation of

such a case and how would you deal with it in light of the results?

Employee HandbooksLegal Review of Language

Eliminate controversial phrases in wording.Use disclaimers disavowing handbook as a contract.Keep handbook content current.

ReadabilityAdjust reading level of handbook for intended audience of

employees.Use

Communicate and discuss handbook.Notify all employees of changes in the handbook.Add EAW clause (not a defense for Wrongful Discharge lawsuits)

Employee Discipline•Discipline• A form of training that enforces organizational rules.

•Positive Discipline Approach1. Counseling2. Written Documentation3. Final Warning (decision day-off)4. Discharge

The 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)

• No discriminator of persons• No discriminator of levels

• This philosophy is very theory X. However, the legal environment does not tolerate an individualized approach.

10 Most Common Employee Discipline Mistakes

• 1. Using words that sound like proxies for bias or retaliation (the commitment problem)• 2. Focusing on intent rather than results• 3. Focusing on the perceived cause of a problem

rather than the problem itself.• 4. Using absolutes that are not credible. • 5. Hedging so much it appears the employer is

not sure of the decision (it appears that, it seems that, as far as I can tell)

10 Most Common Employee Discipline Mistakes

• 6. Including too much detail (picking on)• 7. Using technical rather than plain

language• 8. Failing to make the consequences clear to

the employee• 9. Using labels that create liability• 10. Using labels without behavioral

examples

Discharge: The Final Disciplinary StepTermination Process

Coordinate manager and HR reviewIf layoffs, do not announce until all affected people have been notified. Move

swift and cut deep. Select a neutral and private location (e.g. No e-mail even if virtual)Conduct the termination meeting

If for cause on a Friday If layoffs without a WARN or two week notice, midweek (to find new job)

Clearly tell employee they are being terminated and whyShould be no surprises (e.g., don’t bring up anything new)Be prepared with notes and example only if neededGive them time to reactDiscuss termination benefits.Escort the employee from the building (if terminating for cause)Notify the department staff

Separation agreementAn agreement in which a terminated employee agrees not to sue the employer, in

exchange for specified benefits.

Jack Welch (Winning)- Two rules of firing are no surprises and no humiliation • “firing someone is awful, both for the person doing the

casting out and obviously for the person being asked to leave. Most good managers find the actual deed incredibly difficult—feeling guilt and anxiety both before during and after.”• Firing for integrity violations is easy. They did it. They are

making you and the company look bad. They are gone. • Performance firing: 3 mistakes of firing are

• 1) moving too fast (no surprises)• 2) not using enough candor (no surprises)• 3) taking too long (preserve dignity/minimize humiliation).

HRM Case

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