Employee Rights & Responsibilities

MN 301 – Human Resource Management

Craig W. Fontaine, Ph.D.Pine Manor College

Fall 2014

Employee Rights and Responsibilities

Rights: Power, privileges or interests derived from law, nature, or tradition

Statutory rights: Based on specific laws or statutes passed by federal, state, or local governments Equal employment opportunity Collective bargaining Workplace safety

Responsibilities: Obligations to perform certain tasks and duties

Contractual Rights

Rights based on a specific contract between employer and employee

• An agreement that formally outlines the details of employment

Employment

Contract

• Prohibit individuals who leave an organization from working with an employer in the same line of business for a specified period of time

Non-compete

Agreements

• Right to keep trade secrets confidential and to have employees bring business opportunities to the employer first

• Common-law copyright for works prepared by employees for their employees

Protection of

Intellectual Property

Provisions in Employment Contracts

Non-compete Agreements

Non-piracy agreements

Non-solicitation of current

employees

Intellectual property and trade secrets

Employment Contract Clauses

Implied Contracts

Unwritten contract between individuals and their employers

Affects employment relationship Rights and responsibilities of the employee

may exist only as unwritten employer expectations about what is acceptable behavior or performance

Rights Affecting the Employment Relationship

Employment-at-Will (EAW)

Wrongful and Constructive

Discharge

Just Cause

Due Process

Distributive and Procedural Justice

The Employmen

t Relationshi

p

Employment-at-Will (EAW)

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.

Discharge

Wrongful Discharge

• Termination of an individual’s employment for reasons that are improper or illegal

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

Keys for Preparing a Defense against Wrongful Discharge

Fairness

Just cause: Reasonable justification for taking an employment-related action

Due process: Requirement that the employer use a fair process to determine employee wrongdoing Allows employees to explain and defend their

actions against charges or discipline

Criteria for Evaluating Just Cause and Due Process

Organizational Justice

Distributive Justice

• Perceived fairness in the distribution of outcomes

Procedural Justice

• Perceived fairness of the process used to make decision about employees

Interactional Justice

• Perceived fairness about how a person interacts with others

Open Door Policy

Anyone with a complaint can talk with a manager, an HR representative, or an executive

Probability of being mishandled Nonunion firms benefit from having formal

complaint procedures that are well-defined

Work-Related Alternative Dispute Resolution (ADR)

ArbitrationPeer Review

PanelsOmbuds

Alternative Dispute

Resolution Methods

Work-Related Alternative Dispute Resolution

Arbitration: Using a neutral third party to make a decision

• Compulsory arbitration• All disputes will be submitted to arbitration• Employees waive their rights to pursue legal action

until the completion of the arbitration process

Peer review panels - Advantages

• Reduces lawsuits• Provision of due process • Lower costs• Management and employee development

Work-Related Alternative Dispute Resolution

Ombuds

• Individuals outside the normal chain of command, acting as problem solvers for both management and employees

Mediation

• Tool for developing appropriate and fair outcomes for all parties involved

• Helps settle disputes and figures out how employees can more effectively interact with each other on the job

Right to Privacy

An individual’s freedom from unauthorized and unreasonable intrusion into personal affairs

Change in nature of privacy issues at work place due to: Internet communications

Specialized computers

Telecommunications systems

Privacy Rights and Employee Records

Employee Medical Records

• Recordkeeping and retention practices are affected by provisions of Americans with Disabilities Act (ADA)

Security of Employee Records

• Protect the privacy of employees • Protect employers from potential liability for

improper disclosure of personal information

Electronic Records

Employee Record Files

Laws Protecting Whistle-Blowers

Sarbanes-Oxley Act Dodd-Frank Wall Street Reform

Company guilty of retaliation is required to:

Give the individual back his or her job

Provide back pay or double back pay to make up for lost compensation

Cover any costs associated with legal counsel

Consumer Protection Act

Technology and Employer/Employee Issues

Monitoring Electronic Communications

• Helps with the following challenges:• Tendency to communicate more casually in e-

mails can lead to inappropriate communication• Forwarding unprofessional content

HR Policies on Electronic Communications

Recommended Employer Actions Regarding Electronic Communications

Employee Rights and Personal Behavior

Reviewing Unusual Behavior

Dress and Body Appearance Limitations

• Placing legitimate job-related limits on an employee’s personal at-work appearance

Off-Duty Behavior

• Discipline an employee if his/her off-the-job behavior puts the company in legal or financial jeopardy

Workplace Monitoring

Conducting Video Surveillance at Work

• Ensures employee security• Requires employers to be careful so that

employer rights and employee privacy do not collide

Monitoring Employee Performance

• Signed employee consent form stating that performance will be monitored regularly

Conducting Work-Related Investigations - Best Practices

•Give high priority to confidentiality throughout investigations•All important incidents should be properly documented

Develop a good working plan to respond in times of crises

Specify whether HR or another party will conduct the actual investigation

Investigate problems quickly before evidence can be tampered with

Credibility of individuals providing information in an investigation must be assessed

Use the stories and information collected to identify a conclusion to the investigation

Honesty and Polygraph Tests

Employee Polygraph Protection Act Prohibits the use of polygraphs for most pre-

employment screening

Requires that employees must: Be advised of their rights to refuse to take a

polygraph exam

Be allowed to stop the exam at any time; and

Not be terminated because they refuse to take a polygraph test or solely because of the exam results

How Substance Abuse Affects Employers Financially

Substance Abuse and Drug Testing

American with Disabilities Act

• Alcoholism is a disability, but that dependency on illegal drugs is not

Family and Medical Leave Act

• Covers substance abuse

Drug-Free Workplace Act of 1988

• Requires government contractors to take steps to eliminate employee drug use

Drug Testing and Employee Rights

Policies for Conducting Drug Tests

• Random testing of all employees at periodic intervals• Testing only in cases of probable cause• Testing after accidents

Test Conditions

• Job-related 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

HR Policies, Procedures, and Rules

PoliciesGeneral

guidelines that focus

organizational actions.

“Why we do it”

ProceduresCustomary methods of

handling activities

“How we do it”

RulesSpecific

guidelines that regulate and restrict the behavior of individuals.

“The limits on what

we do”

Employee Rights

Typical Division of HR Responsibilities: Policies, Procedures, and Rules

Employee Handbooks

At-willPrerogatives

HarassmentHours worked

DisciplineElectronic

communication

Pay/benefits

Policies in Handbooks

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

Communicating HR Information

Downward communication Flows from top management to the rest of the

organization

Informs employees about expectations and goals of top management

Upward communication Enables managers to learn about the ideas,

concerns, and information needs of employees

Employee Discipline

Discipline: A form of training that enforces organizational rules

Effective discipline Focuses on problem behaviors, not at the

employees personally Supports distributive and procedural justice in the

organizations Relies on supervisors and manager who are

properly trained on when and how to use discipline

Employee Discipline

Organizational culture of avoiding discipline

Lack of support by higher

management

Fear of lawsuits

Avoidance of time loss

Guilt about past behavior

Fear of loss of friendship

Progressive Discipline Approach

Counseling

Written Documentation

Final Warning

Discharge

Progressive Discipline Process

Discharge and Termination

Discharge: When an employee is removed from a job at an employer