Mgmt 383

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Mgmt 383

• Chapter 16
• Employee Rights and Responsiblities
• Spring 2008

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Rights v. Responsibilities

• Responsibility an obligation to be accountable
  for an action.
• Right that which belongs to an individual by
  law, nature, or tradition.
• Contractual Rights those conveyed by a specific
  written agreement between the employer and
  employee.
• Statutory Rights those conveyed by law.

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Contractual Rights

• Employment Contracts an agreement that outlines
  the details and conditions of employments. Binds
  both parties.
• Terms and conditions of employment.
• General job duties and responsibilities.
• Compensation.
• Confidentiality and secrecy of trade secrets.
• Termination/resignation provisions
• Non-solicitation of current employees upon
  departure.

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Contractual Rights

• Separation Agreements an agreement in which a
  terminated employee agrees not to sue the
  employer in exchange for specific benefits.
• Severance pay.
• SUB

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Contractual Rights

• Non-compete Agreement An agreement that
  prevents an individual who leaves the company
  from competing with the employer in the same line
  of business for a specified period of time.
• Non-piracy agreement not to steal customers.
• Non-solicitation of current employees agreement -
  not to steal critical employees.

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Employment-at-Will

• Employment-at-Will an employer can terminate an
  employee for a good reason, bad reason or no
  reason at all. Exceptions
• Actual (explicit) employment contracts.
• Title VII violations
• Whistler blowers (retaliation) clauses
• State Just Cause laws
• Violation of state tort statutes
• Public policy
• Implied employment contract
• Good faith and fair dealing

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Public policy

• Public policy termination contrary to public
  morals, laws, health, safety, or welfare.
  Examples
• Refusing to take part in illegal price-fixing.
• Refusing to give false testimony during a
  government investigation.
• Refusing to violate federal anti-pollution laws.
• Refusing to avoid jury duty.

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Implied Employment Contract

• Implied Contract Theory an assurance has been
  made to the employee that he/she has continued
  employment in exchange for good performance.
• Written assurance
• Verbal assurance

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Good Faith and Fair Dealing

• The employer acts in an unreasonable manner
  (called outrage in some states)
• Employer decides to discharge a 25-year salesman
  in order to avoid paying him a substantial
  commission(Fortune v. NCR, 36 NE2d 125).
• About ¼ of the states recognize good faith and
  fair dealing.

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Wrongful Discharge

• Wrongful Discharge occurs when an employer
  terminations an employee for reasons that are
  improper or illegal (i.e., public policy, good
  faith and fair dealing, etc.).
• Just Cause a reasonable or legitimate
  justification for initiating employment-related
  actions.

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Just Cause Terminations

• Justifications
• Financial exigency
• Poor performance
• Misconduct
• Insubordination
• Theft
• Alcohol or drug use on duty
• Violation of work rules

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Constructive and Pretextual Discharges

• Constructive Discharge deliberately making
  working conditions so intolerable for the
  employee that the employee quits.
• Pretextual Discharges - Offering a legitimate
  reason for an unlawful termination.

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Due Process

• The opportunity to defend oneself against
  allegations of wrong doing and to confront your
  accusers.
• Criteria for due process
• Does the organization have written procedures?
• Is the procedure reasonable?
• Was the employee afforded the opportunity to use
  the grievance procedure?
• Did the employee have help in preparing his
  defense?
• Is the employee protected against retaliation?
• Was the final decision made independent of the
  original manager?
• Would a reasonable person find the process fair?

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Due Process

• Concerns for justice
• Distributive Justice perceived fairness in the
  distribution of outcomes.
• Are people treated fairly?
• Is the treatment consistent?
• Does the punishment fit the crime?
• Procedural Justice perceived fairness of the
  procedure used to make the decision.

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Alternative Dispute Resolution

• Arbitration process by which a neutral third
  party makes the decision.
• Common in CBAs.
• Disliked by trial lawyers.
• Peer Review Panels panel of employees who hear
  appeals from disciplined employees and make
  recommendations or decisions.

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Alternative Dispute Resolution

• Ombudsman (Ombuds in the politically correct)
  often operate as in-house arbitrators. They are
  individuals who are outside the normal chain of
  command and act as a problem solver for both
  management and employees.
• A Swedish government official (created in 1809)
  who investigates citizens' complaints against the
  government or its functionaries
• From Old Norse umbodhsmadhr, deputy or trusted
  agent.

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Privacy Rights and Employee Records

• An employees right to review his/her personnel
  records usually applies only to public sector
  employees.
• Right to access to personal information
• Right to respond to unfavorable information
• Right to correct erroneous information
• Right to notification when information is given
  to a third party.
• Privacy Act of 1974
• Federal agencies.
• Federal contractor and subcontractors.
• Recipients of federal grant and aid money.

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Security of Employee Records

• Private sector advice
• Keep employment records under very restricted
  access to avoid public disclosure
• Defamation
• Identity theft
• Use confidential pass words for accessing
  records from HRIS.
• Set up separate files and restricted databases
  for especially sensitive information
  (investigations, medical records, etc.)
• Purge outdate files/information
• Release employee information only with consent.
• Inform employees of data retained.

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Privacy Rights Personal Behavior

• Body piercing
• Appearance Policies
• Requiring employees to take nicotine tests.
• Using competitors products
• Weight gain
• No political bumper stickers on your car if
  parked in company parking lot.

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Workplace Monitoring

• Legal for private sector employers
• Video monitors
• One-way mirrors
• Ethical consideration employees should be
  notified that they are being watched

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Workplace Monitoring

• Computer and Internet monitoring
• Computer files
• Email
• Should have appropriate use policies in place.
• Ethical consideration employees should be
  notified that they are being watched

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Employee Discipline

• Progressive Discipline
• Objective Behavior modification correction not
  retribution.
• Example
• 1st Offense verbal warning (make a record)
• 2nd Offense written warning
• 3rd Offense suspension without pay
• 4th Offense termination

• The best discipline is self-discipline.

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Documentation for Employee Discipline

• Documentation (adverse counseling)
• Reason for disciplinary action
• Corrective Action
• Consequences if behavior is not corrected

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Situations Calling for Immediate Termination

• Substance abuse at work
• Fighting on company property
• Possession of weapons
• Theft
• Destruction of company property
• Falsifying employment documents
• Certain off duty criminal activities

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Reasons Discipline is not Enforced

• Organizational culture regarding discipline.
• Lack of support by higher management.
• Guilt (manager may have previously violate the
  same work rule).
• Loss of friendship or conflict avoidance.
• Time loss (bigger fish to fry).
• Fear of litigation.

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Employee Handbooks

• Guidelines
• Readability written at employees reading level
  (if they cant be understood they are worthless)
• Use will it be used by the employee
• Distribute at orientation
• Discuss major provisions
• Test employees retention of information

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Legal Considerations for Employee Handbooks

• Maybe implied contracts
• Failure to have a handbook may expose employers
  to even greater litigation (sexual Harassment,
  e.g.)
• Areas of concern
• Avoid controversial phrase that implied
  guaranteed employment
• Permanent employee
• Continued employment

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Legal Considerations for Employee Handbooks

• Provide disclaimers
• Not a contract
• Not intended to create a contractual
  relationship
• Management reserves the right to change or modify
  policies without notice
• Keep the handbook current!

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Drug Testing

• Drug Testing
• Should serve legitimate business purposes
• Accidents rates
• Illness rates
• Absenteeism
• Workers compensation rates
• Turnover rates

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Drug Testing

• Drug Testing
• Recommended policy guidelines
• Drug testing when there is probable cause
• Random drug testing of every employee at periodic
  intervals
• Drug testing after accidents
• Department of Transportation requires regular
  testing of employees engaged in the interstate
  transportation of goods.