Employee Rights & Responsibilities

1. Employee Rights & Responsibilities Module 6 How to deal with employee complaints

2. Exercise • Everyone get up and move at least 3 seats away from where you are right now?

3. Rights 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. • Minimum Wage • Equal employment opportunity • Collective bargaining • Workplace safety

4. Contractual 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. • Originally for executive managers • Implied Contract • The idea that a contract exists between the employer and the employee based on the implied promises of the employer. Enforceable in court.

5. 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. • Non-piracy agreementsbar 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 secretsprevent former employees from revealing key competitive information.

6. 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

7. 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

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

9. 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.

10. Criteria for Evaluating Just Cause and Due Process

11. 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

12. 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”

13. Exercise • How did you feel when I told you to move to a new seat? • Why? • How is this like change or policies in organizations? • What should be done different? • How is this process influenced by our implicit theories of leadership and power?

14. 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

15. 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

16. Body Appearance Off-Duty Behavior An employer can place legitimate job-related limits on an employee’s personal at-work appearance such as tattoos and body piercings. An employer can discipline an employee if the employee’s off-the-job behavior puts the company in legal or financial jeopardy. Employee Rights and Personal Behavior

17. 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

18. 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.

19. Recommended Employer Actions on E-mail and Voice Mail

20. 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.

21. How Substance Abuse Affects Employers Financially

22. Drug 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.

23. Drug Testing While in the restroom one day at work you overhear an employee speaking about how she falsified her recent drug test. You are unable to get a look at the employee but you can narrow down a group of suspects by process of elimination based off of what you overheard. Since the employee is female and claims to have taken a drug test recently you can be sure that it is an employee from a group of new-hires that have been the only ones to have taken a drug test within the past 6 months. • Being an HR manager, how do you go about tracking down the correct employee and dealing with them accordingly?

24. Drug Testing 80% of major firms test Positive- get second opinion Adulterants/Dilution Tests- cheap but only on request

25. 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?

26. Employee 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. • Add EAW clause (not a defense for Wrongful Discharge lawsuits)

27. Employee Discipline • Discipline • A form of training that enforces organizational rules. • Positive Discipline Approach • Counseling • Written Documentation • Final Warning (decision day-off) • Discharge

28. 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.

29. Discharge: The Final Disciplinary Step • Termination Process • Coordinate manager and HR review • If 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 why • Should be no surprises (e.g., don’t bring up anything new) • Be prepared with notes and example only if needed • Give them time to react • Discuss termination benefits. • Escort the employee from the building (if terminating for cause) • Notify the department staff • Separation agreement • An agreement in which a terminated employee agrees not to sue the employer, in exchange for specified benefits.

30. 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 to0 fast (no surprises) • 2) not using enough candor (no surprises) • 3) taking too long (preserve dignity/minimize humiliation).