employee rights
can be defined as the guarantees of fair treatment that workers expect in return for their services to an employer. These expectations become rights when they are granted to employees by the courts, legislatures, or employers. Over the course of the last 50 or so years, various antidiscrimination laws, wage and hour statutes, and safety and health legislation have secured basic employee rights and brought numerous job improvements to the workers in the United States. Included among those rights are the rights of employees to protest unfair disciplinary actions, to question genetic testing, to have access to their personal files, to challenge employer searches and moni-toring, and to be largely free from employer discipline for off-duty conduct.
negligence
is the failure to use a reasonable amount of care when such failure results in injury to another person. A general responsibility exists for employers to exercise reasonable care in prevent-ing employees from intentionally harming other employees during the course of their work.
employment-at-will rel'p
is created when an employee agrees to work for an employer for an unspecified period of time. Because the duration of the employment is indefinite, it can, in general, be terminated at the whim of either party. The employee has a right to sever the employment relationship at any time for a better job opportunity or for other personal reasons. Employers, likewise, are free to terminate the employment relationship at any time�and with-out notice�for any reason, no reason, or even a bad reason. In essence, employees are said to work "at the will" of the employer.
wrongful discharge
three important exceptions to the employment-at-will doctrine:
1. Violation of public policy. This exception occurs when an employee is terminated for refusing to commit a crime; for reporting criminal activity to government authorities; for disclosing illegal, unethical, or unsafe practices of the employer; or for exercising employment rights. See Figure 13.1 for examples of public policy violations.
2. Implied contract. This exce ption occurs when employees are discharged despite the employer's promise (expressed or implied) of job security or contrary to established termination procedures. An employer's oral or written statements may constitute a contractual obligation if they are communicated to employees and employees rely on them as conditions of employment . 19
3. Implied covenant. This exception occurs when an employer has acted with a lack of good faith and fair dealing. For example, an employer would be doing so if it were to terminate a salesperson simply to avoid having to pay him or her a commis-sion. By inflicting harm without justification, the employer violated the implied covenant between the two parties.
constructive discharge
when employees leave cos of intolerable acts by employer
discharge as result of retaliationWorkers' Adjustment Retraining and Notification Act (WARN),
which 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. 36 Notice must be given to collective bargaining representatives, unrepresented employees, the appropriate state dislocated worker agency, and the highest elected local official. Terminated employees must be notified individually in writing. The act allows for several exemptions, including "unforeseeable circumstances" and "faltering businesses.
impairment testing
aka fitness-for-duty or performance-based testing, impair-ment testing measures whether an employee is alert enough to work. One impairment test requires an employee to keep a cursor on track during a video game-like simula-tion. Another testing technique evaluates an employee's eye movements. The employee looks into a dark viewport and follows a light with his or her eyes. Test results, when compared against baseline data gathered earlier on the employee, mimic those of a so-briety test. One advantage of impairment testing is that it focuses on workplace conduct rather than off-duty behavior. Furthermore, it identifies employees who are impaired because of problems that a drug test cannot spot: fatigue, stress, and alcohol use.
electronic communications privacy act 1986
Prohibits the interception, recording, or disclosure of wire, electronic, and aural communications through any electronic, mechanical, or other device. An interception takes place when an employer monitors a telephone call while it is occurring. Permits employer monitoring for legitimate business reasons.
privacy act 1974
Applies to federal agencies and to organizations supplying goods or services to the federal government; gives individuals the right to examine references regarding employment decisions; allows employees to review their personnel records for accuracy. Employers who willfully violate the act are subject to civil suits.
Family Education Rights and Privacy Act�The Buckley Amendment (1974)
Prohibits educational institutions from supplying information about students without prior consent. Students have the right to inspect their educational records.
fair credit reporting act 1970
Permits job applicants and employees to know of the existence and context of any credit ?les maintained on them. Employees have the right to know of the existence and nature of an investigative consumer report compiled by the employer.
national labor relations act
allows employees to form labor unions
discipline
training that "corrects, molds, or perfects knowledge, attitudes, behavior, or conduct." To view disci-pline in any other way�as punishment or as a way of getting even with employees�can only invite problems for management, including possible lawsuits.
disciplinary model
organization discipline policy
definition of discipline
violation of organizational rules
investigation of employee offense
disciplinary interview
progressive discipline
due process
just cause
discharge
steps in investigating a disciplinary problem
documenting misconduct
investigative interview
content of documentation
1. The date, time, and location of the incident(s)
2. The behavior exhibited by the employee (the problem) 3. The consequences of that action or behavior on the employee's overall work per-formance and/or the operation of the employee's work unit
4. Prior discussion(s) with the employee about the problem
5. The disciplinary action to be taken and the improvements expected should be documented
6. The consequences of failing to make the improvements by a certain follow-up date
7. The employee's reaction to the supervisor's attempt to change his or her behavior
8. The names of witnesses to the incident (if applicable)
investigative interview
should be con-ducted to make sure the employee is fully aware of the organization's rules and that he or she has not followed them. 70 The interview should concentrate on how the offense violated the performance and behavior standards expected. Most important, the em-ployee must be given a full opportunity to explain his or her side of the issue so that any deficiencies for which the organization may be responsible are revealed
progressive discipline
is the application of corrective measures by increasing degrees. Progressive discipline is designed to motivate an employee to correct his or her mis-conduct voluntarily. The technique is aimed at nipping the problem in the bud, using only enough corrective action to remedy the shortcoming. Because each situation is unique, a number of factors must be considered in determining how severe a disci-plinary action should be.
positive, or nonpunitive, discipline
A system of discipline that focuses on early correction of employee misconduct, with the employee taking total responsibility for cor-recting the problem
alternative dispute resolution procedures
address employee discharges and complaints outside of court, which is generally faster and cheaper for both parties. Employers often ask workers to sign ADR agreements when they receive their offer letters or sign their employee handbooks
step-review systems
based on a preestab-lished set of steps�normally four�for the review of an employee's com-plaint by successively higher levels of management.
employee
supervisor
department head
hrd
top management
peer-review systems
called a complaint committee, is composed of equal num-bers of employee and management representatives. The employees on the committee are normally elected by secret ballot by their coworkers for a rotating term, whereas the managers are assigned, also on a rotating basis. A peer-review system functions as a jury because its members weigh evidence, consider arguments, and, after delibera-tion, vote independently to render a final decision.The peer-review system can be used as the sole method for resolving employee complaints, or it can be used in conjunction with a step-review system.
open-door policy
A policy of settling griev-ances that identifies various levels of management above the immediate supervisor for employee contact
ombudsman system
A designated individual from whom employees may seek counsel for resolution of their complaints. The ombudsman listens to an employee's complaint and attempts to re-solve it by seeking an equitable solution between the employee and the supervisor. This individual works cooperatively with both sides to reach a settlement, often em-ploying a problem-solving approach to the issue.
mediation
during a neutral person (mediator) helps employees and managers negotiate and reach a voluntary agreement acceptable to both parties. The essence of mediation is compromise. The mediator holds a meeting with the employee and management, listens to the position of each side, gathers facts, and then through discussion, sugges-tions, and persuasion obtains an agreement that satisfies the needs and requirements of both sides.
arbitration
The em-ployee and employer present their cases, or arguments, to an arbiter, who is typically a retired judge. He or she then makes a decision that the parties have agreed to be bound by. Arbitration is used primarily to resolve discrimination suits related to age, gender, sexual harassment, and race. Other workplace issues such as promotions, compensation, discipline, and application of company policies can be arbitrated if an employer's arbitration program allows it.