Employee Rights &
Responsibilities
Module 6
How to deal with employee complaints
Exercise
• Everyone get up and move at least 3 seats away from
where you are right now?
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
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.
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 agreements bar 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 secrets prevent former
employees from revealing key competitive information.
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
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
Keys for Preparing a Defense Against Wrongful Discharge: The “Paper Trail”
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.
Criteria for Evaluating Just Cause and Due Process
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
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”
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?
Employment Practices Liability Insurance
• Discrimination
• Employment Practices
Liability Insurance (EPLI)
• Covers employer’s costs for legal
fees, settlements, and judgments
associated with employmentrelated actions such as:
• 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
Balancing Employer Security Concerns
and 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
Employee Rights and Personal Behavior
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 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
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.
Recommended Employer Actions on E-mail and Voice Mail
Should Employers Use Social Media
in Recruiting?
(Prohibited in 18 states and proposed in 26 others and Federally)
•
•
•
•
•
YES!
77 of firms do it
Writing Skills
Where socially active
Real, not hypothetical
data
• Ask for an explanation
• NO!
• Would you peek in their
front window?
• Not job related data =
risky
• Unverifiable accuracy
• Grape Juice or Win in
the picture?
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.
How Substance Abuse Affects Employers Financially
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.
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?
Drug Testing
80% of major firms test
Positive- get second
opinion
Adulterants/Dilution Testscheap but only on request
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?
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)
Employee Discipline
• Discipline
• A form of training that enforces organizational rules.
• Positive Discipline Approach
1. Counseling
2. Written Documentation
3. Final Warning (decision day-off)
4. Discharge
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.
10 Most Common Employee
Discipline Mistakes
• 1. Using words that sound like proxies for bias or
retaliation (the commitment problem)
• 2. Focusing on intent rather than results
• 3. Focusing on the perceived cause of a problem
rather than the problem itself.
• 4. Using absolutes that are not credible.
• 5. Hedging so much it appears the employer is not
sure of the decision (it appears that, it seems that, as
far as I can tell)
10 Most Common Employee
Discipline Mistakes
• 6. Including too much detail (picking on)
• 7. Using technical rather than plain language
• 8. Failing to make the consequences clear to the
employee
• 9. Using labels that create liability
• 10. Using labels without behavioral examples
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.
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).