Employee Right and Responsibilities

1. Employee Right and Responsibilities • Sources • Human Resource Management – Chapter 15: Employee Rights and Responsibilities • The SHRM Learning System – Module 5: Employee and Labor Relations Sections 5:1 – 5:6. Content of this module accounts for 20% of the PHR and 14% of the SPHR exam

2. Learning Objectives • We will explore the following learning: • General employee rights under the law, what employers are and not obligated to do • Employer’s legal obligations and rights defined by statue, regulations, complex case law and rules of NLRB • Maintain compliance which requires knowing current legal requirements, trends in labor decisions, and when to seek advice of counsel. • Employer’s actions can bring about unintended and severe consequences. Uninformed HR actions can interfere with an organization’s desire to be union-free. • Strategies for creating an employer-employee relationship characterized by trust, respect, and transparency • Organizations that seek to remain union-free must clearly state their case and create an environment that removes the primary attraction of unions. Involves implementing processed that address many reasons employees seek unionization such as poor working conditions, poorly handled problems, distrust of management (motives, works and actions) and lack of employee input.

3. Learning Objectives • HR Responsibilities include • Ensure employee and labor relations activities are compliant with federal laws and regulations • Investigate and resolve employee complaints filed with federal agencies involving employment practices or working conditions, utilizing professional resources • Increase knowledge of • Applicable federal laws affecting employment in union and nonunion environments, such as laws regarding antidiscrimination policies, sexual harassment, labor relations, and privacy. • Techniques for conducting unbiased investigations.

4. Historical Overview • History describes evolution of individual employee rights and rights of employees acting collectively as a labor organization. • Labor Organization – defined in the NLRA as: • Any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, or dealing with employers • Employer’s perspective • Collectivity – group of employees as opposed to an individual employee • Dealing – active engagement of employee groups with employers to resolve workplace differences • Labor organization – formal association (union) or loosely organized employees. • HR must be aware of basic rights and alert to action that could turn into a labor organization

5. Employer Trends • Changes affecting organizations and influencing employee and labor relations • Growth of foreign competition • Global economy • Speed of innovation and technology changes • Investor expectation of quicker return • Reorganization (mergers, acquisitions, divestitures) to gain competitive advantage • Increased health-care benefit costs • Customer/client demographics and needs • Demographic changes to the labor supply • Shift from manufacturing to service economy • Increased cost of government regulations • Explosive growth in litigation

6. Employer Trends • Effect of changes • Employers • Lean, agile, competitive • Trimmed management layers • Flatten organization structures • Increased use of technology and engineering processes for efficiency • Protect self from risks to information systems, intellectual property, physical safety and litigation • Employees • Increased skill and education requirements • Assume larger share of health care premiums • Work more hours • Lose hours to part-time workers or outsourcing • Cut or loss of pension • Layoffs or reduced benefits • Insecurity, disorientation, distrust, loss, powerlessness due to stress of employer • May turn to unions to protect familiar world they feel they are losing

7. Employer and Employee Rights • Rights • Laws safeguard the rights of employers and employees, union and nonunion • HR role: develop policies and procedures, supportive communication and training programs to ensure organization remain in compliance and out of court. • Employee can discuss terms and conditions of their employment and employers cannot require employees keep their salaries confidential • Employee Rights under NLRA • NLRA or Wagner Act – 1935 • Amended LMRA or Taft-Hartley Act – 1947 • Key sections: • Section 7 – rights of employees • Section 8 – Unfair labor practices by employers • Section 9 – election process • Section 14 – prohibition of requirement of union members in states with right-to work laws

8. Employer and Employee Rights • Section 7 of NLRA states employees have right to: • Self organization • Form, join, or assist labor organizations • Bargain collectively through representatives of their own choosing • Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection • Refrain from any or all such activities • Referred to a “Section 7 rights” • Employers must abide by provisions of NLRA and respect covered activities: • Objection to harassment • Refusing to work under dangerous conditions • Protected concerted activity • Filing for unemployment as a group • Petitioning the employer for resolution of an issue • NLRA posting requirement 11/14/11 • 11/14/11 – NLRA requirement to post employee rights with other workplace notices • Exempts employers not covered by NLRA (ag, airline, railroad, small employers < $50,000 in interstate business) Failure to post may constitute an unfair labor practice

9. Employer and Employee Rights • EEO • Civil Rights Act – 1964 • Employees looking less to union to protect rights, increased pressure on state and federal legislative to enact statutory laws protecting employee rights • EEO laws are examples of statutory laws which prohibit discrimination in any terms, conditions or privileges of employment . Derived from: • Title VII Of Civil Rights Act 1964 • Fair Labor Standards Act 1938 and Equal Pay Act (EPA) 1963 • Age Discrimination in Employment Act (ADEA) 1967 • Pregnancy Discrimination Act 1978 • Titles I, II and III Americans with Disabilities Act (ADA) 1990 and ADA Amendments Act (ADAAA) 2008 • Sections 501 and 505 of Rehabilitation Act 1973 • Civil Rights Act 1991 • Family and Medical Leave Act (FMLA) 1993, 2008 amendments and 2009 regulations • Uniformed Services Employment and Reemployment Rights Act (USERRA) 1994 • Genetic Information Nondiscrimination Act (GINA) 2008 • Lily Ledbetter Fair Pay Act 2009 • Employee protection under EEO laws • Employee must be member of a protected class (age, sex, race, religion, color, disability, military service, national origin)

10. Employer and Employee Rights • Employment at Will • Common law • Based on court decisions, not statutory laws • Recognized on federal level in all states except Louisiana • Employment at Will • Most important doctrine of common law • Poses liability for employers and employees • Implemented at state level; but subject to federal statutes prohibiting termination based on discrimination • EAW vs. Right to Work • EAW – Employers right any time, with/out prior notice to hire, fire, demote, and promote for any reason, unless there is public policy, law, or contract. • EAW – Employees have the right to quit a job at any time for any reason, with or without prior notice • Right to Work – refers to statutes enforced is US through NLRA which prohibits unions from making union membership a condition of employment before or after hire. • Exception to EAW • Public policy exception – employees cannot be fired for fulfilling legal obligations or for exercising legal rights (jury, worker’s comp, perjury, whistle blowing) • Implied contract • Implied covenant of good faith and fair dealing* • Whistle blowing • Occurs when employees disclose illegal or illegitimate practices, employees cannot be terminated for pursuing rights granted by statute (ex: filing complaint under Civil Rights act) *Rapidly changing, few courts willing to recognize this, implies EE’s will not be terminated without good cause, conflict with EAW.

11. Employer and Employee Rights • Employment at Will • Implications for Employers • To avoid EAW lawsuits, managers can take these precautions: • Avoid representing the job as “permanent” • Characterize the employer’s obligations with flexibility to avoid claims of implied contract or breach of faith. Details of future stated as goal not a promise. • State EAW in job applications, employment letters, and handbooks • State in handbook tat policies can be changed at any time by employer • Require employees to sign an acknowledgment they have received the handbook, the handbook is not a contract, and that employment is at will. • Common law tort claims • Tort law protects persons’ interests in safety and well-being, in possession and enjoyment of property, in financial resources, and reputation. • Common-law tort claims affecting employee rights include: • Negligent hiring/negligent retention • Defamation • Fraudulent misrepresentation • Duty of loyalty • Invasion of privacy

12. Employment-at-Will Fairness • Due Process • 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. • KEY factor in the level of trust subordinates had in their managers • Interactional Justice • Perceived fairness about how a person interacts with others.

13. 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, for any reason - unless there is a law or contract to the contrary. • Common law based on court decisions, not codified laws (statutory law) and recognized on federal level (except in Louisiana) • Employees have the right to quit and get another job under the same terms. • Wrongful Discharge • Termination of an individual’s employment for reasons that are improper or illegal. • Fortune v. National Cash Register

14. Employment-at-Will (EAW) Restrictions • Just Cause • Reasonable justification for taking an employment-related action. • 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.

15. Exceptions to Employment-at-Will Public Policy Employees cannot be fired for fulfilling legal obligations or for exercising their legal rights. Example: jury duty; filing for workers comp; refusing to commit perjury, or whistleblowing (this is most widely recognized exception to EAW doctrine. Implied Contract Employees cannot be fired when an agreement for employment is implied by circumstances, even though there is not express contract. Example: Handbooks imply contracts; requirement to use progressive discipline. Good-Faith and Fair-Dealing Claim that lack of good faith and fair dealing by employer occurred. Obligation to be honest, cannot inflict harm without justification Example: long term employee fired right before eligible for retirement. *This is rapidly changing – few courts willing to recognize as it implies employees will not be terminated without good cause.

16. Employer and Employee Rights • Common-law tort claims • Negligent hiring – after being hired, employee harms others and employer know, or should have known based on pre-hire investigation that the employee posed a foreseeable risk to others in the workplace. • Negligent retention – employer retains employee who the employer knew or should have known are engaging or have engaged in misconduct that poses a threat to others during/after work hours. • To state claim of negligence in hiring or retention, following must be shown • Employer-employee relationship or retention of an employee must exist • Employee must be incompetent or inappropriate for the position • Employer knew or should have known of the incompetence or inappropriateness • Employee’s act or omission must have caused the injuries • With appropriate investigation, employee could have discovered the relevant information and prevented the incident from occurring. • Defamation • Injuring someone’s reputation in the community by making false and malicious statement . • Spoken (slander) or Written (Libel) • To prove defamation a person must show evidence that: • False and malicious statement was made to another person • Harm to the person’s reputation was caused by the statement • Statement was made with no legitimate associated business reason • Examples • Background checks or manager rumors

17. Employer and Employee Rights

18. Contractual 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 • To be enforceable, employer mist have an agreement with the employee that gives the employee something of value, agreement must be tailored to protect the employer’s legitimate business interest. • Properly written and enforceable will contain language that: • Limits geographical area • Limits duration • Details cope of activity prohibited • Must comply with local law • Components • Non-piracy agreementsbar former employees from soliciting business from former customers and clients for a specified period of time. • Non-solicitation of current employeesagreementsprevent a former employee encouraging former co-workers to join a different company, often a competitor. • Intellectual property and trade secretsprevent former employees from revealing secret, confidential, or proprietary information obtained while working *Must not restrain an employee entirely from earning a living.

19. Contractual Rights - continued • Drafting a Non-Compete Agreement • Important to not use overly broad language and be specific in describing the type of conduct prohibited. Generally enforceable agreement will contain language that: • Limits the geographical are to which the agreement applies • Limits the duration of time the agreement will be in effect. • Details the scope of the activity prohibited. • Inevitable Disclosure • An employee with knowledge of a former employer’s trade secrets will disclose them to their new employer • Apply prospectively not retroactively, varies state to state • EX PepsiCo, Inc. V. Redmond Note: Each new hire should be provided with an offer letter/memo confirming that they are not bound by non-compete or similar restriction. Some state prohibit non-competes.

20. Employer and Employee Rights and • Contract • Agreement between two or more persons to do, or refrain from doing, a particular thing in exchange for something of value • Can be written, using formal or informal terms or can be oral • Terms include who, what, when, where, and how (define promises of each party) • Example: Independent contractor or consultant

21. Employee and Labor Relations • HR involvement in the litigation process • HR involved when an employee seeks redress via litigation, via EEOR or in court. • HR works directly with employer’s counsel, including attending depositions, gathering information for responses, protecting evidence, attending meetings, testifying in court. They may work with counsel to craft preemptive settlements or implement remedies.

22. Key milestones in litigation process

23. Employee Relations and Organizational Culture • Importance of Positive Organizational Culture • Culture – often nice perks, environment that treats and respects employees. • Produces employee-friendly workplaces • Recruitment is easier and produces higher-quality employees • Lower undesirable turnover • Preserved institutional knowledge and expertise • Increased engagement with employees willing to make extra effort to reach an organizational goal.

24. Employee Relations and Organizational Culture • HR’s role in maintaining a nonunionized workplace* • Clearly identify why the organization wishes to remain nonunionized • Work for the fair treatment of employees • Improve communication between management and employees • Maintain awareness of employee’s attitudes and satisfaction with the workplace • Implement processes to identify and resolve employee problems promptly, fairly and consistently. • Maintain competitive wages and benefits • Model a belief that employees should be treated with respect and dignity *SPHR Only

25. Employee Relations and Organizational Culture • Strategies for union-free organization • A clearly articulated position regarding unionization • Communicate to employees but review with counsel to ensure they do not violate rights under NLRA • Educate employees about union campaigns • Fair and consistent treatment of employees • Access to career opportunities • Balanced promotion decisions • Communication programs and feedback mechanisms • Learn of and respond constructively to employee problems • Create a climate of openness, employees do not fear directing questions, suggestions, or complaints to management • Remove barriers to upward communication created by lower-management level only reporting • Communicate facts and information about future, growth, barriers to profitability • Supplement and validate overall supervisor/employee relationships and take corrective action where necessary • Help employees with job-related/personal problems, knowing these may impact productivity

26. Employee Relations and Organizational Culture • Strategies for union-free organization, continued • Problem solving procedures • Counseling • Compensation and benefit programs and practices • Performance appraisal • Rewards and recognition • Guidelines for effective rewards/recognition programs • Gather employee input to ensure rewards/recognition have meaning and value and are appropriate to the value of the employee contribution • Develop clear criteria that are significant and achievable and communicate them to the entire workforce • Train supervisors and managers on how to administer programs effectively, fairly, and consistently • Management/supervisor training

27. Employee Relations and Organizational Culture • Feedback or communication mechanisms • Attitude (climate) surveys • Human resources/labor relations reviews • Skip-level interviews • Open-door/person-to-person meetings • Department/unit communication meetings • Employee participation programs (EPP) • Members must not represent other employees • Programs must not be “bilateral” • Committee deliberations must avoid “traditional areas of bargaining” (Comp, hours, benefits, and reward systems) • If there is a union representing employees, management must “meet and confer” with the union over the design and implementation of the committees. Safe harbor – 4 laws/regulations created by NLRB for employees using EPPs. These provide some measure of protection from liability if certain conditions are met • Electronic communications • Chilling – employer violates section 7 rights to discuss work issues such as salary or problems with a supervisor, with other employees or to act in a manner that could be seen as retaliation for an employee’s expression of a negative opinion

28. Employee Relations and Organizational Culture • Labor-management cooperative strategies • Creating a positive organizational culture can promote a positive relationship with union representatives, avoid problems, and improve grievance resolutions and collective bargaining outcomes. • More cooperative labor-management relationship is characterized by: • Greater acceptance of labor-management partnerships • Increased willingness to share power • More open and candid sharing or information • Joint decision making on issues of common concern • Win-win bargaining techniques • Shared responsibility and accountability or results • Ways employers and unions can build cooperation • Sincere concern for employee problems and welfare even when management is not obligated to do so by the labor agreement • Joint study committees that allow management and union officials to identify and find solutions to common problems • Third parties who can provide guidance and programs that bring union leaders and managers closer together to pursue common objectives • Prior consultation with union leaders to defuse problems before they become formal grievances • Training programs that communicate the intent of union and management to reduce biases and misunderstandings

29. Employee Relations and Organizational Culture • Labor-management cooperative strategies • Additional suggestions from National Labor Management Association (NLMA) for labor-management cooperation

30. Employee Involvement • Employee Involvement (participative management or empowerment) • Planned and orderly linking of shared interests • Motivational technique to enhance quality of decision making while satisfying employee needs for job involvement • For it to be effective • All participants must be open to examining new ideas • Any union involved must be encouraged to buy into the process • The process must include organizational commitment and support • The design and implementation of the programs must not violate the NLRA

31. Benefits of Employee Participation

32. Employee Involvement Strategies • Employee Involvement accomplished through strategies • Job design • Alternate work schedules • Teams • Employee suggestion systems

33. Employee Involvement Strategies • Job design • Critical factor in how well employees like their work • Structuring jobs to improve organizational efficiency • Core characteristics of job design • Task – piece of assigned work • Duty – number of tasks, larger segment of work performed by one person • Job Responsibility – obligations to perform certain tasks and duties • Core characteristics of job design to ensure employees more motivated to work and satisfied with job • Skill variety • Task identity • Task significance • Autonomy • Feedback • Job redesign strategies • Enlargement • Rotation • Enrichment

34. Employee Involvement Strategies • Alternate work schedules • Flextime – work an established number of hours/week but start/end time varies • Compressed workweeks – accomplish a full week in fewer than 5 days • Regular part-time - Hours worked per week less than full-time • Job sharing –two part-time employees share a full-time job • Phased retirement - gradual reduction of hours worked prior to retirement • Telecommuting – working via electronic computing and telecommunications equipment

35. Employee Involvement Strategies

36. Employee Involvement Strategies • Teams – two or more people who are equally accountable for the accomplishment of a purpose and specific performance goals • Committee • Project teams • Self-directed teams • Task forces • Work teams

38. Employee Involvement Strategies • Employee Suggestion System • Offer individual employees the opportunity to provide management with ideas for improving the workplace and processes.

39. Employee Surveys • Two categories • Employee attitude surveys (focus on job satisfaction) • Employee opinion (measures important data on specific issues) • Survey Benefits • Direct means of assessing attitudes • Improve relations • Increased trust • Improved customer satisfaction • Detect early warning signs of workplace problems/sources of conflict

40. Employee Surveys • Survey Topics • Management quality • Organizational strategy, direction, creativity, innovation • Quality of work/life issues • Employee morale and job satisfaction • Customer focus • Compensation and benefit programs • HR effectiveness • Development opportunities • Retention and attrition issues • Communication issues • Safety and health concerns

41. Employee Survey Analysis • Once a survey is completed, results must be analyzed and findings communicated to employees and management • Disappointment if survey does not bring improvements • May use an employee focus group – 6 to 12 employees invited to participate in discussion with facilitator • Consider the following when planning a focus group • Planning – effective planning is critical • Facilitator – having a good facilitator contributes to the success • Participant selection – adequately represent the survey population • Note-taking – designated person • Advantages and disadvantages of focus group • Analysis and Interpretation

42. Employee Survey Analysis • Advantages and disadvantages of focus group

43. Employee Survey Analysis • Analysis and Interpretation – common errors • Rush to conclude – draw preliminary conclusions • Graphical misrepresentation – errors in visually representing the data • Statistical analysis errors – ensure statistic tests are performed correctly • Analysis paralysis – over analysis • Manipulated results – ensure results based on actual results

44. Employee Survey Analysis • Organizational Feedback Systematic presentation of data to groups with the intent of stimulating discussion of problem areas, generating potential solutions, and stimulating motivation for change. • Management feedback Must get accurate feedback on survey/focus group data, results must be shared with all levels of management to accurately understand situation • Employee feedback Results must be shared with employees, failure to share can have detrimental effect of employee attitudes

45. Employee Survey Analysis • Ways to improve employee assessment • Secure management support to ensure that results will be acted upon • Start with clear objectives • Choose an appropriate sample • Ensure anonymity, as appropriate • Ensure that the timing is good in terms of organizational climate so employees are focused • Be sure to share the goal of the assessment with employees • Don’t as what you already know • Don’t ask if you don’t want to know • Consider multiple methods to gather information • Ensure that materials are accurately translated, as appropriate • Pilot-test all instruments\ • Consider automation (online surveys, automated data analysis) • Do something with the results

46. HR Policies, Procedures, and Rules • Policies • Broad statement reflecting organization’s philosophy, objectives, or standards regarding activities. • “Why we do it” • Procedures • Step by step descriptions of the customary methods of handling activities. • “How we do it” • (Work) Rules • Specific actions to be taken, or avoided, in a given situation. • “The limits on what we do”

47. Typical Division of HR Responsibilities: Policies, Procedures, and Rules

48. Employee Handbooks • Legal Review of Language • Eliminate controversial phrases in wording. (distinguish between company-wide policies and job specifics) • Use disclaimers disavowing handbook as a contract (EAW) • Keep handbook content current. • Orient new employees • Readability • Adjust reading level of handbook for intended audience of employees. (keep it simple) • Check “tone” • Ensure it clearly communicates the information • Use • Typically given to employees on day one • Communicate and discuss handbook. • Notify all employees of changes in the handbook. • Accommodate multilingual requirements • Obtain evidence of receipt of handbook

49. Employee Handbooks

50. Employee Discipline Discipline • A form of training that enforces organizational rules. • Most Common reasons for discipline • Poor performance • Absenteeism and tardiness • Violations of policies and rules • Serious misconduct • Cost of Absenteeism • Decrease in productivity • Financial costs • Administrative costs