Employee Relations Job Protection Rights: Legal Considerations Employment-at-Will Principle Explicit Contract Implied Contract Constructive Discharge Plant Closing Notification 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. Discharges That Violate Public Policy An employer may not terminate an employee for: • Refusing to commit perjury in court 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 Occupational Safety and Health Administration (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 summons to jury duty 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) Tips to Avoid Wrongful Employment Termination Lawsuits • Terminate an employee only if there is an articulated reason. • Objective reason • Reflects company rules, policies, and practices • Set and follow documented termination rules and schedules. • Procedures from an employee handbook, a supervisory manual, or even an intraoffice memorandum. • Give employees notices of unsatisfactory performance and improvement opportunities through a system of warnings and suspensions. • Document all performance problems. • A lack of documented problems in an employee’s personnel record may be used as circumstantial evidence of pretextual discharge if the employee is “suddenly” discharged. • Be consistent with employees in similar situations. • Document reasons given for all disciplinary actions whether or not they warant termination. 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. Illegal Employee Dismissals (cont’d) Retaliation Discharge 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. Plant Closing Notification 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.” Explicit Contracts Binding Contract Restrictions Non-compete Agreements Intellectual Property Agreements Nonpiracy Agreements 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 Questions Off-duty behavior Given the facts of this case, should John have been discharged? Explain Should the sales representatives of AEM be held to a higher standard of conduct than sales representatives or other types of organizations? Explain Should management have considered John’s past work record before deciding on discharge? Explain Absenteeism What role if any should Mary’s past work record play in this case? Explain Does management have a right to know why employees refuse to work overtime? Explain Evaluate the arguments of Mary Schwartz and management in this case. If you were a member of the peer review how would you vote in this case? Why? Problem Behavior in the Workplace Tardiness Withdrawal Safety infractions Absenteeism Theft Harassment Sabotage Violence Workplace Incivility Rude, discourteous, insensitive behaviors Violation of organizational norms May include: Crude behavior or words Unprofessional conduct Disrespect, lack of respect for others Failure to share credit or information Effects of Incivility Survey of 1,400 employees who reported being the target of incivility at work: 90% 52% 24% 28% 22% 46% 12% reported “ripple” effects lost time worrying put in less hours wasted time avoiding instigator decreased work effort thought about quitting eventually quit the company Pearson, Andersson, Porath and Wegner, 2000 Causes of Incivility Perceived lack of support from the organization Negative perception of work situation held by employee Personality type Spiraling Patterns A A A A A A B B B B B B Spiraling Patterns A B C D Incivility spreads through the workplace… …or leads to turnover. A B HR Employee Discipline Basics Document, Document, Document Clearly communicate rules and expectations Be consistent in responding to rule violations Ignoring problems almost always makes them worse Use the performance appraisal process if possible Look for mitigating factors in performance problems See all sides of the issue Be ready to counsel managers on company policies and options for dealing with employees Use common sense Importance of Good Discipline Turnover is expensive Behavior may escalate to aggression or violence Sets precedents that erode values and culture Impacts productivity and customer service Employees react to how co-workers are treated Ignoring problem behavior may lead to perceptions of inequity in other employees The Results of Inaction Reasons given by supervisors for their failure to impose a disciplinary penalty: 1. 2. 3. 4. 5. The supervisor failed to document earlier actions, so no record existed on which to base subsequent disciplinary action. Supervisors believed they would receive little or no support from higher management for the disciplinary action. The supervisor was uncertain of the facts underlying the situation requiring disciplinary action. 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. The supervisor wanted to be seen as a likable person. Setting Organizational Rules Publish Widely Review Regularly Explain Reasons Guidelines for Implementation of Organizational Rules Get Signed Statements of Understanding Keep in Writing Be Reasonable Remind/Restate 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. A Disciplinary Model Considerations in Disciplinary Investigations What is the offense? Did the employee know he or she did wrong? Is the employee guilty? Are there extenuation circumstances? Has the rule been uniformly enforced? What is employee’s past work record? Documentation of Employee Misconduct 1. 2. 3. 4. 5. 6. 7. 8. Date, time, and location of the incident(s) Negative performance or behavior exhibited by the employee—the problem Consequences of that action or behavior on the employee’s overall work performance and/or the operation of the employee’s work unit Prior discussion(s) with the employee about the problem Disciplinary action to be taken and specific improvement expected Consequences if improvement is not made and a follow-up date The employee’s reaction to the supervisor’s attempt to change behavior The names of witnesses to the incident (if appropriate) 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 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. 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. Progressive Discipline Progressive discipline procedures dictate specific warning steps depending on the persistence of the behavior. Verbal warning – talk to the employee Written warning Suspension Dismissal Gross misconduct grounds for discharge. Positive Discipline Encourages employees to assume responsibility for their actions. Supervisor uses counseling skills to motivate the employee to change. Supervisors must receive appropriate training. Supervisor and employee agree on goals and methods for addressing problem behavior. Companies use “discipline days” to communicate seriousness and commitment. Also ends with discharge 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. 5. 6. 7. 8. Don’t mix the good with the bad. Trying to sugarcoat the problem sends a mixed message to the employee. Avoid making accusations against the employee and injecting personal feelings into the discussion. Avoid bringing up any personality differences between you and the employee. Provide any information concerning severance pay and the status of benefits and coverage. Explain how employment inquiries from future employers will be handled. 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. 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 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. Conventional Step-Review Appeal Procedure 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. 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. 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. 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. Citizenship Behaviors “…individual behavior that is discretionary, not directly or explicitly recognized by the formal reward system, and that in the aggregate promotes the effective functioning of the organization. By discretionary, we mean that the behavior is not an enforceable requirement of the role or the job description, that is, the clearly specifiable terms of the person's employment contract with the organization; the behavior is rather a matter of personal choice, such that its omission is not generally understood as punishable." Types of Citizenship Behaviors Altruism/ Helping Behavior Organization Loyalty Organization Compliance Civic Virtue Individual Initiative Self Development Sportsmanship Causes of Citizenship Behaviors Supportive work environment Personality type Group Cohesion Organization Identity Role perception Leadership support
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