Chapter 13

Report
Employee Rights
and Discipline
The Challenges of Human Resources Management
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1–1
Chapter Objectives
After studying this chapter, you should be able to
LEARNING OUTCOME 1
LEARNING OUTCOME 2
Explain the concepts of employee rights and
employer responsibilities.
Explain the concepts of employment-at-will, wrongful discharge,
implied contract, and constructive discharge.
LEARNING OUTCOME 3
Identify and explain what the privacy rights of employees are.
LEARNING OUTCOME 4
Discuss the meaning of discipline and why managers cannot
ignore disciplinary problems.
LEARNING OUTCOME 5
Explain how to establish disciplinary policies and investigate
disciplinary problems.
LEARNING OUTCOME 6
Differentiate between the two approaches to disciplinary action.
LEARNING OUTCOME 7
Identify the different types of alternative dispute
resolution methods.
LEARNING OUTCOME 8
Discuss the role of ethics in the management of human resources.
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Employee Rights and Privacy
• Employee Rights

Various federal and state laws in protection of
employment status guarantee fair treatment of
employees by employers.
• Employee Privacy Rights

Federal and state courts generally view the privacy
rights of employees as minimal.

There is a lack of comprehensive and consistent body
of privacy protection, whether from laws or from court
decisions.
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Employee Rights and Privacy (cont.)
• Employer Responsibilities

Negligence
– Is the failure to use a reasonable amount of care when such
failure results in injury to another person.

Negligent hiring
– Is a legal doctrine that places liability (duty of care) on the
employer for actions of its employees during the course and
scope of their employment.
• Job Protection Rights

Psychological contract
– Is the expectation of a fair exchange of employment
obligations between an employee and employer
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Employee Rights and Privacy (cont.)
• Employment-at-Will Principle


The right of an employer to fire an employee without
giving a reason and the right of an employee to quit
when he or she chooses.
In 1908, Supreme Court upheld employment-at-will
in Adair v United States.
• Limitations on Employment-at-Will



Union collective bargaining agreements
Federal and state laws, court decisions, and
administrative rulings
“Fear of firing”
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Wrongful Discharge: Exceptions to the
Employment-at-Will Doctrine
• Violations of Public Policy

Wrongful discharge of an employee by an employer
for refusal commit an act that to violates the law.
• Implied Contract

Wrongful discharge contrary to an employer’s oral
or written promises of continued employment.
• Implied Covenant

Wrongful discharge for a lack of fair dealing on part
of employer.
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Discharges That Violate Public Policy
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Tips to Avoid Wrongful Employment
Termination Lawsuits
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Whistle-Blowing
• Whistle-Blowing

Complaints to governmental agencies by employees about
their employers’ illegal or immoral acts or illegal practices

Laws Protecting Whistle-Blowers from Retaliation:
– Sarbanes-Oxley (S-O) Act of 2002 protects publicly-traded
company employees
– Whistleblower Protection Act (WPA) protects federal
employees.
– Notification and Federal Employee Antidiscrimination
and Retaliation Act (No Fear Act) of 2002
– False Claims Act (FCA)
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Implied Contract
• An implied contract is when a promise by the
employer suggests some form of job security
to the employee.
• Implied contractual rights can be based on
either oral or written statements made during
the pre- employment process or subsequent
to hiring.
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Implied Contract (cont.)
• Following are some examples of how an implied
contract may become binding:

Telling employees their jobs are secure as long as
they perform satisfactorily and are loyal to the
organization

Stating in the employee handbook that employees will
not be terminated without the right of defense or
access to an appeal procedure

Urging an employee to leave another organization by
promising higher wages and benefits, then reneging
on those promises after the person has been hired
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Explicit Contracts
Most Widely Used Restrictions
Explicit Contracts
Restrictions
Nondisclosure of
Information Agreement
Intellectual Property
Agreements
Noncompete
Agreement
Nonpiracy
Agreements
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Illegal Employee Dismissals
• Constructive Discharge

An employee voluntarily terminates his or her
employment because of harsh, unreasonable
employment conditions placed on the individual
by the employer.

Employers cannot accomplish covertly what they
are prohibited by law from achieving overtly.

Courts have generally adopted a “reasonable person”
standard for upholding constructive discharge claims.
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Illegal Employee Dismissals (cont.)
• Discharge as a Result of Retaliation

Title VII of the Civil Rights Act, the Age Discrimination
in Employment Act, the Americans with Disabilities Act,
and other employment laws prohibit employers from
retaliating against employees when exercising their
rights under these statutes.

Proper handling of these employees involves:
– Taking no adverse employment action against
employees when they file discrimination charges.
– Treating the employees consistently and objectively.
– Harboring no animosity toward the employees when they
file discrimination lawsuits.
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Discharges and the WARN Act
• Workers’ Adjustment Retraining and Notification
Act (WARN) of 1989

Requires organizations with more than 100 employees
to give employees and their communities sixty days’
notice of any closure or layoff affecting fifty or more
full-time employees.
– Terminated employees must be notified individually in writing.

The act allows several exemptions, including
“unforeseeable circumstances.”
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Privacy Rights
Employee Privacy versus Employer Obligations
•
•
•
•
•
•
Substance Abuse and Drug Testing
Searches and Monitoring
Access to Personnel Files
E-mail and Voice Mail
Conduct Outside the Workplace
Genetic Testing
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Substance Abuse and Drug Testing
• Safety-Sensitive Jobs

Employees must submit to a drug test when “reasonable
suspicion” for a drug test exists and the employer’s testing
procedures are also reasonable.
• Drug-Free Workplace Act (1988) requires
employers to:

Issue a policy statement prohibiting drug usage.

Inform employees about the dangers of drugs.

List options available for drug counseling.

Notify the federal contracting agency of employees
convicted of drug-related criminal offenses.
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Recommendations for a Drug-Free
Workplace Polity
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Electronic Surveillance
• Camera Surveillance

Few federal laws protect workers from being watched
• Phone Conversations and Text Communications

In general, employers have the right to monitor calls
and text messages sent from their telecommunications
devices, provided they do so for compelling business
reasons and employees have been informed that their
communications will be monitored.
• E-Mail, Internet, and Computer Use

Employers can monitor what employees do online and
fire or discipline them based on that information
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Searches
• The search policy should be clearly outlined in a firm’s
employee handbook. The handbook should explain
that searches will not be conducted without a
compelling reason.
• When possible, searches should be conducted
in private.
• The employer should attempt to obtain the employee’s
consent prior to the search.
• The search should be conducted in a humane and
discreet manner to avoid infliction of emotional distress.
• The penalty for refusing to consent to a search should
be specified.
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Access to Personnel Files
• Employees generally have:



The right to know of the existence of one’s personnel file
The right to inspect one’s own personnel file
The right to correct inaccurate data in the file
• Employers can:



Restrict access to information that could violate the
privacy of others
Limit the employee to copies of documents that he or
she has signed
Require that HR personnel, or a supervisor, be present
while the employee views the documents
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Off-Duty Conduct and Speech
• Off-Duty Employee Conduct

Organizations that discipline employees for off-duty
misconduct must establish a clear relationship between the
misconduct and its negative effect on other employees or
the organization.
• Off-Duty Employee Speech

Some organizations have social networking and blogging
policies that restrict employees from making disparaging
remarks about their firms or its supervisors, or otherwise
casting their organizations in a bad light.
• Workplace Romances

Supervisor – subordinate relationships are of
particular concern
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Right-to-Privacy Laws
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Disciplinary Policies and Procedures
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A Disciplinary Model
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The Results of Inaction
• Reasons given by supervisors for their failure to impose
a disciplinary penalty:
1. The supervisor failed to document earlier actions, so no record
existed on which to base subsequent disciplinary action.
2. Supervisors believed they would receive little or no support
from higher management for the disciplinary action.
3. The supervisor was uncertain of the facts underlying the
situation requiring disciplinary action.
4. Failure by the supervisor to discipline employees in the past
for a certain infraction caused the supervisor to forgo current
disciplinary action in order to appear consistent.
5. The supervisor wanted to be seen as a likable person.
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Setting Organizational Rules
1. The rules must be reasonable and relate to the safe and
efficient operation of the organization.
2. The rules as well as the consequences for breaking them
should be written down and widely disseminated to all
employees. Neglecting to communicate the rules is a
major reason disciplinary actions taken against employees
are reversed.
3. The rules should be clearly explained. Employees are more
likely to accept a rule if they understand the reason behind it.
4. Employees should sign a document stating that they have
read and understand the organizational rules.
5. The rules should be reviewed periodically—perhaps
annually—especially those rules critical to work success.
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Discipline
• Definitions of Discipline

Treatment that punishes.

Orderly behavior in an organizational setting.

Training that molds and strengthens desirable
conduct or corrects undesirable conduct and
develops self-control.
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Documenting Misconduct
1.
Date, time, and location of the incident(s)
2.
Negative performance or behavior exhibited by the employee—
the problem
3.
Consequences of that action or behavior on the employee’s overall
work performance and/or the operation of the employee’s work unit
4.
Prior discussion(s) with the employee about the problem
5.
Disciplinary action to be taken and specific improvement expected
6.
Consequences if improvement is not made and a follow-up date
7.
The employee’s reaction to the supervisor’s attempt to
change behavior
8.
The names of witnesses to the incident (if appropriate)
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The Investigative Interview
• Conduct of an Interview



Concentrate on how the offense violated the
performance and behavior standards of the job.
Avoid getting into personalities or areas unrelated
to job performance.
Give the employee must be given a full opportunity
to explain his or her side of the issue.
• NLRB v Weingarten,Inc.

The Supreme Court upheld an NLRB ruling in favor
of the employee’s right to representation during an
investigative interview in a unionized organization.
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Approaches to Discipline
• Progressive Discipline

When applying corrective measures by increasing
degrees, always be sure that employees:
– Know where they stand regarding offenses.
– Know what improvement is expected of them.
– Understand what happens next if improvement is not made.
• Positive, or Non-punitive, Discipline

Discipline that focuses on the early correction of
employee misconduct, with the employee taking total
responsibility for correcting the problem.
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Discharging Employees
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“Just Cause” Discharge Guidelines
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Informing the Employee
• Conducting a Discharge Meeting:
1. Come to the point within the first two or three minutes, and list in a
logical order all reasons for the termination.
2. Be straightforward and firm, tactful, remain resolute in your decision.
3. Make the discussion private, businesslike, and fairly brief.
4. Don’t mix the good with the bad. Trying to sugarcoat the problem
sends a mixed message to the employee.
5. Avoid making accusations against the employee and injecting
personal feelings into the discussion.
6. Avoid bringing up any personality differences between you and
the employee.
7. Provide any information concerning severance pay and the status
of benefits and coverage.
8. Explain how employment inquiries from future employers will
be handled.
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Due Process
• An employee’s right to present his or her position
during a disciplinary action.

To know job expectations and the consequences of
not fulfilling those expectations.

To consistent and predictable management action
for the violation of rules.

To fair discipline based on facts, to question those
facts, and the right to present a defense.

To appeal disciplinary action.

The right to progressive discipline.
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Alternative Dispute Resolution
• “ADR”

Different types of employee complaint or disputeresolution procedures used to meet employees’
expectations for fair treatment in the workplace
while guaranteeing them due process.
• ADR Procedures






Step-Review Systems
Peer-Review Systems
Open-Door Policy
Ombudsman System
Mediation
Arbitration
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Alternative Dispute Resolution Procedures
• Step-Review System

System for reviewing employee complaints
and disputes by successively higher levels
of management.
• Peer-Review System

A group composed of equal numbers of employee
representatives and management appointees.

Functions as a jury since its members weigh evidence,
consider arguments, and after deliberation, vote
independently to render a final decision.
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Conventional Step-Review Appeal Procedure
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Additional ADR Procedures
• Open-Door Policy

A policy of settling grievances that identifies various
levels of management above the immediate supervisor
for employee contact.
• Ombudsman System

Ombudsman
– Is a designated individual from whom employees may
seek counsel for the resolution of their complaints.
– Is an advocate for a fair process, not an advocate on
behalf of individuals or the institution.
– Does not have the power to decide or to overrule a
decision, but can confidentially seek an equitable
solution between the employee and the supervisor.
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Third-party Dispute Resolution
• Mediation

The use of an impartial neutral to reach a
compromise decision in employment disputes
• Mediator

A third party in an employment dispute who meets
with one party and then the other in order to suggest
compromise solutions or to recommend concessions
from each side that will lead to an agreement.
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Third-party Dispute Resolution (cont.)
• Arbitration

The use of an impartial neutral party as decision
maker to resolve an employment labor dispute by
imposing a binding final decision on all parties
involved in the dispute.
• Arbitrator

Third-party neutral who resolves a labor dispute by
issuing a final decision in the disagreement.
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Managerial Ethics in Employee Relations
• Ethics

A set of standards of conduct and moral judgments
that help to determine right and wrong behavior.
– Provides cultural guidelines—organizational or societal—that
help decide between proper or improper conduct.
• Code of Ethics


Is a set of written standards of conduct (ethical values)
governing relations with employees and the public.
Provides a basis for the organization, and individual
managers, to evaluate their plans and actions.
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Key Terms
• alternative dispute
•
•
•
•
•
•
•
•
•
resolution
(ADR)
constructive discharge
discipline
due process
employee rights
employment-at-will
principle
ethics
impairment testing
Mediation
•
•
•
•
•
•
•
•
•
•
negligence
ombudsman
open-door policy
peer-review system
positive, or nonpunitive,
discipline
progressive discipline
psychological contract
step-review system
whistle-blowing
wrongful discharge
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Chapter 13 - Learning Outcomes
Learning Outcome Statements
Related Outcomes from Body of the Text
1
Explain the concepts of employee rights and
employer responsibilities.
Are the rights you have as a citizen of the United States the same as the rights you have as
an employee? Why or why not?
2
Explain the concepts of employment-at-will, wrongful
discharge, implied contract, and constructive
discharge.
Think about the jobs you may have held or hold now. Were you (or are you) employed “at
will”? How would you know?
3
Identify and explain what the privacy rights of
employees are.
What are the privacy settings on your Facebook page? Do you think your employer, or
prospective employer, should be allowed to look at it?
4
Discuss the meaning of discipline and why managers
cannot ignore disciplinary problems.
Have you ever worked with someone who broke the rules repeatedly but was never disciplined
for it? How did it affect your morale and willingness to follow the rules?
5
Explain how to establish disciplinary policies and
investigate disciplinary problems.
What are the disciplinary policies and procedures at your school? In what ways do you think
they might be similar to those implemented in the workplace? In what ways do you think they
might be different?
6
Differentiate between the two approaches to
disciplinary action.
Why do you think supervisors often verbally warn employees first before disciplining them? Do
they need to? Are there any professions in which verbal warnings are skipped?
7
Identify the different types of alternative dispute
resolution methods.
What pros and cons do you think employees who agree to settle their grievances via
alternative dispute resolution methods face?
8
Discuss the role of ethics in the management of
human resources.
Name some companies you believe treat their employees ethically and some that do not. Why
do you think the two groups differ in this regard? Does it depend upon the type of industry the
company competes in?
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