Discipline and Employee Rights Session 8

1. Discipline and Employee RightsSession 8

2. Employee Rights and Privacy • Employee Rights • Guarantees of fair treatment from employers, particularly regarding an employee’s right to privacy. • Negligence • Failure to provide reasonable care where such failure results in injury to consumers or other employees. • 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.

3. Violation of Public Policy Implied Contract Implied Covenant Employment-at-Will Doctrine and Wrongful Discharge Exceptions to Employment-at- Will

4. Exceptions to Employment-at-Will • 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.

5. Discharges That Violate Public Policy • An employer may not terminate an employee for: • Refusing to commit perjury on the employer’s behalf • Cooperating with a government agency in the investigation of a charge or giving testimony • Refusing to violate a professional code of conduct • Reporting OSHA infractions • Refusing to support a law or a political candidate favored by the employer • “Whistle-blowing,” or reporting illegal conduct by the employer • Informing a customer that the employer has stolen property from the customer • Complying with a summons to jury duty

6. Avoiding Wrongful Employment Termination Lawsuits • Terminate an employee only if there is an articulated reason. • Set and follow termination rules and schedules. • Document all performance problems. • Be consistent with employees in similar situations.

7. 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.

8. Illegal Employee Dismissals (cont’d) • Retaliation Discharge • 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 they exercise 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.

9. Plant Closing Notification • Workers’ Adjustment Retraining and Notification Act (WARN)-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.”

10. Privacy Concerns • Substance Abuse and Drug Testing • Searches and Surveillance • Access to Personnel Files • E-mail and Voice Mail • Conduct Outside the Workplace • Genetic Testing Employee Privacy versusEmployer Obligations

11. Substance Abuse and Drug Testing • Drug-Free Workplace Act (1988) • Sensitive Position Individuals • Employees who can be required to submit to a drug test even without an “individualized suspicion”of drug usage. • Job Applicants • Applicants can be required to submit to a drug test.

12. Substance Abuse and Drug Testing (cont’d) • ADA and Drug Addiction • Rehabilitated drug users are considered disabled. • Current drug users are not covered by ADA. • Issues in Drug Testing • Reasonable suspicion or probable cause requirements • Impairment (fitness for duty), mandatory and random drug testing • Validity and reliability of drug tests • Chain-of-custody of test samples

13. Instances of Employer Drug Testing • Pre-employment screening of job applicants • Individuals in safety-sensitive positions • Individuals in security-sensitive positions • Reasonable suspicion of drug usage • Post-accident testing for presence of drugs • Return-to-duty testing to clear return to work • Follow-up after initial testing failure • Random testing to deter drug use

14. Employee Searches and Surveillance • The search policy should be widely publicized and should advocate a probable or compelling reason for the search. • The search policy should be applied in a reasonable, evenhanded manner. • Where 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.

15. Right-to-Privacy Laws

16. Right-to-Privacy Laws (cont’d)

17. Personnel Files: Policy Guidelines • Ensure compliance with applicable state laws. • Define what information is to be kept in employee files. • Develop categories of personnel information, depending on legal requirements and organizational needs. • Specify where, when, how, and under what circumstances employees may review or copy their files. • Identify individuals allowed to view personnel files. • Prohibit the collection of information that could be viewed as discriminatory or could form the basis for an invasion-of-privacy suit. • Audit employment records on a regular basis to remove irrelevant, outdated, or inaccurate information.

18. E-Mail, Internet, and Voice Mail: Policy Guidelines • Ensure compliance with federal and state legislation. • Specify the circumstances, if any, under which the system can be used for personal business. • Specify that confidential information not be sent on the network. • Set forth the condition under which monitoring will be done—by whom, how frequently, and with what notification to employees. • Specify that e-mail and voice mail information be sent only to users who need it for business purposes. • Expressly prohibit use of e-mail or voice mail to harass others or to send anonymous messages. • Make clear that employees have no privacy rights in any material delivered or received through e-mail or voice mail. • Specify that employees who violate the policy are subject to discipline, including discharge.

19. A Disciplinary Model Organization discipline policy Violation of organizational rules Investigation of employee offense Definition of discipline Disciplinary Interview Progressive discipline Due Process Just cause Discharge

20. Attendance Unexcused absence Chronic absenteeism Unexcused/excessive tardiness Leaving without permission Work Performance Not completing work assignments Producing substandard products or services Not meeting established production requirements Dishonesty And Related Problems Theft Falsifying employment application Willfully damaging organizational property Punching another employee’s time card Falsifying work records Common Disciplinary Problems

21. On-the-job Behaviors Intoxication at work Insubordination Horseplay Smoking in unauthorized places Fighting Gambling Failure to use safety devices Failure to report injuries Carelessness Sleeping on the job Using abusive or threatening language with supervisors Possession of narcotics or alcohol Possession of firearms or other weapons Sexual harassment Common Disciplinary Problems (cont’d)

22. Publish Widely Keep in Writing Review Regularly Be Reasonable Explain Reasons Remind/Restate Get Signed Statementsof Understanding Implementing Organizational Rules Guidelines for the Implementationof Organizational Rules

23. The Hot-Stove Approach to Rule Enforcement • Hot-Stove Rule • Rule of discipline that can be compared with a hot stove in that it gives warning, is effective immediately, is enforced consistently, and applies to all employees in an impersonal and unbiased way.

24. Disciplinary Action for Violation of Rules • Are rules fair and reasonable? • Have rules been communicated sufficiently to make employee aware of them? • Have rules been enforced previously? • Should and did employee receive prior warning? • Is employee being singled out as an example?

25. 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.

26. Documentation of Employee Misconduct • Date, time, and location of the incident(s) • Description of the problem/misconduct • Consequences of misconduct on employee and/or work unit • Prior discussions with employee about conduct • Disciplinary action to be taken and specific improvement expected • Consequences for employee if behavior is not changed and follow-up date • Reaction of employee to supervisor’s efforts • Names of witnesses to incident

27. Considerations in Disciplinary Investigations • In very specific terms, what is the offense charged? • Did the employee know he or she was doing something wrong? • Is the employee guilty? • Are there extenuating circumstances? • Has the rule been uniformly enforced? • Is the offense related to the workplace? • What is the employee’s past work record?

28. 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.

29. Approaches to Discipline • Progressive Discipline • Application of corrective measures by increasing degrees. • Employees always know where they stand regarding offenses. • Employees know what improvement is expected of them. • Employees understand what will happen 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.

30. Positive Discipline Procedure

31. Disciplinary Action for Unsatisfactory Performance • Do clear and objective performance standards exist? • Has employee received proper orientation and training? • Is the unsatisfactory performance caused by conditions beyond employees’ control? • Has employee been given adequate warning and time to improve performance? • Are the other employees meeting performance standards?

32. Considerations When Discharging an Employee • What is the employee’s length of service? • What is the employee’s previous service record? • Did employee receive warning and lesser penalties, i.e., progressive discipline? • Did employer use every means possible to avoid the discharge? • Are there any evidences of prejudice or bias toward employee?

33. “Just Cause”Discharge Guidelines • Was the employee warned of the disciplinary consequences of misconduct? • Were management’s requirements of the employee reasonable? • Was it established that the employee’s performance was unsatisfactory? • Was an investigation conducted in a fair and objective manner? • Is there sufficient evidence of proof of guilt as charged? • Was the employee treated the same as other employees in similar circumstances? • Did the discharge fit the misconduct, the employee’s service record, and any mitigating circumstances?

34. 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.

35. Alternative Dispute Resolution • “ADR” • The term applied to different types of employee complaint or dispute-resolution procedures. • ADR Procedures • Step-Review Systems • Peer-Review Systems • Open-Door Policy • Ombudsman System • Mediation • Arbitration

36. 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.

37. Conventional Step-Review Appeal Procedure

38. 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 • A designated individual from whom employees may seek counsel for the resolution of their complaints. • They do not have power to overrule the decision made by an employee’s supervisor, but they should be able to appeal the decision up the line if they believe an employee is not being treated fairly.

39. 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.

40. Third-party Dispute Resolution (cont’d) • 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.

41. Managerial Ethics in Employee Relations • Ethics • The 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 • A written set of standards of conduct (ethical values) that governs relations with employees and the public. • Provides a basis for the organization, and individual managers, to evaluate their plans and actions.