Chapter 16 Employee Rights and Discipline

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

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.

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

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.

Typical ProvisionsTypical Provisions
in Employmentin Employment
ContractsContracts
Typical ProvisionsTypical Provisions
in Employmentin Employment
ContractsContracts
Figure 16–1

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.

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

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

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.

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

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.

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

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.

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

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

Employee Record FilesEmployee Record FilesEmployee Record FilesEmployee Record Files
Figure 16–4

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

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

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.

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

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

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

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

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.

How Substance Abuse Affects Employers FinanciallyHow Substance Abuse Affects Employers FinanciallyHow Substance Abuse Affects Employers FinanciallyHow Substance Abuse Affects Employers Financially
Figure 16–7

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.

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”

Typical Division of HR Responsibilities:Typical Division of HR Responsibilities:
Policies, Procedures, and RulesPolicies, Procedures, and Rules
Policies, Procedures, and RulesPolicies, Procedures, and Rules
Figure 16–8

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.

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

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

Progressive Discipline ProcessProgressive Discipline ProcessProgressive Discipline ProcessProgressive Discipline Process
Figure 16–10

DisciplineDiscipline
DisciplineDiscipline
Figure 16–9

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

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)

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.

Chapter 16 Employee Rights and Discipline

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