Workplace Due Process

1. Workplace Due Process Presentation to the Mid-West Kentucky SHRM Dane M. Partridge, Ph.D. Associate Professor of Management University of Southern Indiana July 24, 2008

2. Procedural Justice • Procedurally fair treatment results in increased performance, job satisfaction, organizational commitment, trust, and organizational citizenship behaviors • Grievance procedures found in about half of all nonunion firms • In addition to increased organizational commitment and performance, outcomes include decreased litigation and unionization (Cascio, 2006) • But note that procedure can have negative impact on supervisor morale (if they perceive that their decisions aren’t being backed by org) (Berenbeim, 1980) • Research involving hotel chain surveyed ees about their fairness perceptions (whether Er showed concern for their rights, whether they could appeal mngt decisions, whether ees’ concerns were listened to, etc.) • Customer satisfaction data showed ratings were higher in locations where ees felt they were treated more fairly • Both formal procedures followed by managers and the way individual supervisors treated ees was important (Jackson and Schuler, 2006)

3. Employee Rights • Statutory Rights • E.g., Civil Rights Act (and ADEA, PDA, ADA, and now Genetic Information Nondiscrimination Act), Occupational Safety and Health Act, National Labor Relations Act • Contractual Rights • Very small percentage of labor force works under employment contract • Collective bargaining agreement • Implied contract • Other Rights • Psychological contract • Other rights may be less extensive than perceived by employees • E.g., right to ‘fair’ treatment, right to privacy, right to free speech

4. Issue: Restrictions on Office Romance • Is there a job-related reason why a company would decide to restrict dating between employees and enforce a no-dating (no fraternization) policy? Do you think employers have a right to restrict the following off-duty conduct of their ees -- Having a romantic affair outside of the marriage relationship? • January 2006 survey found 50% of respondents have known married co-worker who was involved w/ someone else at office • American Management Association found only 12% of companies surveyed in 2003 had written policies on issue • Of these, most simply prohibit mngrs from dating subordinates • Some ers also bar romance among peers on same work team • “Romance changes the dynamics of team relationships” • Studies by SHRM show mngt taking increasingly punitive stance • 55% of companies in 2001 survey said ee who mismanaged office romance would be transferred, up from 42% in 1998 study • 35% said ees could be fired, up from 27% • January 2006 survey found 38% of ees have experienced unwanted advances from co-worker • Source: Wall Street Journal, 2/20/04; HRNews Online, 2/9/06

5. Management Rights • Employment-at-will • Legal limitations to employment-at-will • Public policy exceptions • Implied contracts • Good faith and fair dealing • Employment-at-will acknowledgements • May have legal advantages, but job security is important feature to many applicants • Organizational recruiting materials that emphasize due process, rights of appeal, and grievance mechanisms send message that job security is high – employment-at-will acknowledgements suggest the opposite • Research indicates that applicants find companies with due process policies more attractive than companies with employment-at-will policies (Noe et al., 2008)

6. (As reported in Monthly Labor Review, January 2001.)

7. EMPLOYEES COVERED BY UNJUST DISMISSAL PROTECTIONS Source: Budd (2008)

8. Administering and Managing Discipline • Basic Standards of Discipline • Communication of rules and performance criteria • Documentation of the facts • Consistent response to rule violations • Hot-stove rule • Is it fair to treat everyone equally?

9. ‘Just Cause’ Standard of Discipline • Failure to answer “yes” to one or more of these questions suggests that the discipline may have been arbitrary or unwarranted. • Notification Was the employee forewarned of the disciplinary consequences of his or her conduct? • Reasonable Rule Was the rule the employee violated reasonably related to safe and efficient operations? • Investigation Before the Discipline Did managers conduct an investigation into the misconduct before administering discipline? • Fair Investigation Was the investigation fair and impartial? • Proof of Guilt Did the investigation provide substantial evidence or proof of guilt? • Absence of Discrimination Were the rules, orders, and penalties of the disciplinary action applied even handedly and without discrimination? • Reasonable Penalty Was the disciplinary penalty reasonably related to the seriousness of the rule violation? (Gomez-Mejia et al., 2007)

10. Right to Appeal Discipline • Open-door program (org culture determines whether program is credible w/ ees – how open is the door? Whose door?) • Appear to be more popular with white-collar ees, while blue-collar prefer more formalized approach (McCabe, 1997) • Speak-up program (or skip-level, similar to open-door but prescribes specific steps for ee to take in bringing work problem to mngt’s attention) • Ombudsman (Rockwell, J&J, Herman Miller, Eastman Kodak) (Bohlander and Snell, 2007) • Peer review (peers and managers other than direct supervisor) (aka internal tribunal) • May be final step, following appeal to direct supervisor, then employee relations rep • One model is three peers, two mngrs • Peer review may be element of participative mngt approach (McCabe, 1997) • Peer review panels used by Red Lobster, TRW, Marriott International, Rockwell (French, 2007) • Union grievance procedure (more on nonunion shortly…) • Duty of fair representation • Weingarten rights (investigatory interview) • Steelworkers’ Trilogy, Spielberg, and Collyer

11. Alternative Dispute Resolution • Stages • Open door policy • Peer review • Mediation • Arbitration • American Arbitration Association can provide mediators or arbitrators, as can Federal Mediation and Conciliation Service • Arbitration typically reviews implementation of policy, not policy itself (Bernardin, 2007) • ADR can be highly effective in terms of cost and time savings • For example, over four-year period, Kellogg, Brown and Root found that legal fees dropped 90 percent after instituting ADR • Of 2,000 disputes initiated by ees, only 30 (1.5 percent) ever reached binding arbitration (Noe et al., 2008) • Unless ee believes er’s procedures allow valid appeal, ee may prefer to take grievance to court (Fossum, 2006)

12. Nonunion Grievance Procedures • All ees must know about procedure and exactly how it operates • Ees must believe there will be no reprisals taken against them for using it • Mngt must respond quickly and thoroughly to all grievances • Time limits should be established • For genuine due process to operate, ee must have representation or assistance in preparing and presenting grievance, procedure must include objective investigator and decision maker who has power to make binding decision (Cascio, 2006) • Specific details of grievance procedure policy not as important as the way the policy is carried out (Jackson and Schuler, 2006) • Is nonunion grievance procedure more credible than peer review? • No one best system for all firms – each system should be specifically tailored to fit the particular organization, and ees should be involved in planning and implementation (McCabe, 1997) • Research indicates that providing employee with explanation for the decision is significantly related to perceived fairness of process (Blancero, 1995)

13. Compulsory Arbitration of Employment Disputes • U.S. Sup Ct has allowed employers to impose as condition of employment requirement that any employment dispute be resolved by arbitration (even a dispute arising from statutory right, such as Title VII) (Gilmer, Circuit City) • But note EEOC v. Waffle House – EEOC can still bring action against Er, even if EE is subject to binding arbitration • Issues: • Cost (in union procedures cost is split; in nonU may be most fair if Er pays, but that may raise concerns re: arbitrator bias) • Arbitrator selection • Limits on awards

14. Due Process as Union Avoidance Practice • Employment security and effective complaint procedure, among other things, may be substantive policies contributing to nonunion status • Outcome: ee perceptions of security and equity, positive ee attitudes and higher morale • Grievance procedures more likely in firms with higher proportion of professional ees, larger firms, higher value on HR (Fossum, 2006)