Employee Relations Employee Relations

Job Protection Rights: Legal Job Protection Rights: Legal ConsiderationsConsiderations

Implied Contract

Employment-at-WillPrinciple

Plant ClosingNotification

ConstructiveDischarge

ExplicitContract

Wrongful Discharge: Wrongful Discharge: Exceptions to the Exceptions to the

Employment-at-Will Employment-at-Will DoctrineDoctrine

Violations of Public PolicyViolations of Public Policy Wrongful discharge of an employee by an Wrongful discharge of an employee by an

employer for refusal commit an act that to employer for refusal commit an act that to violates the law.violates the law.

Implied ContractImplied Contract Wrongful discharge contrary to an employer’s Wrongful discharge contrary to an employer’s

oral or written promises of continued oral or written promises of continued employment.employment.

Implied CovenantImplied Covenant Wrongful discharge for a lack of fair dealing Wrongful discharge for a lack of fair dealing

on part of employer.on part of employer.

Discharges That Violate Public Discharges That Violate Public PolicyPolicyAn 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-BlowingWhistle-BlowingWhistle-BlowingWhistle-Blowing

Complaints to governmental agencies by employees Complaints to governmental agencies by employees about their employers’ illegal or immoral acts or about their employers’ illegal or immoral acts or illegal practicesillegal practices

Laws Protecting Whistle-Blowers from Retaliation:Laws Protecting Whistle-Blowers from Retaliation: Sarbanes-Oxley (S-O) Act of 2002 protects Sarbanes-Oxley (S-O) Act of 2002 protects publicly-traded publicly-traded

company employeescompany employees Whistleblower Protection Act (WPA) protects federal Whistleblower Protection Act (WPA) protects federal

employees.employees. Notification and Federal Employee Antidiscrimination and Notification and Federal Employee Antidiscrimination and

Retaliation Act (No Fear Act) of 2002Retaliation Act (No Fear Act) of 2002 False Claims Act (FCA)False Claims Act (FCA)

Tips to Avoid Wrongful Tips to Avoid Wrongful Employment Termination LawsuitsEmployment 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 DismissalsIllegal Employee Dismissals

Constructive DischargeConstructive Discharge An employee voluntarily terminates his or her An employee voluntarily terminates his or her

employment because of harsh, unreasonable employment because of harsh, unreasonable employment conditions placed on the individual employment conditions placed on the individual by the employer.by the employer.

Employers cannot accomplish covertly what they Employers cannot accomplish covertly what they are prohibited by law from achieving overtly.are prohibited by law from achieving overtly.

Courts have generally adopted a “reasonable Courts have generally adopted a “reasonable person” standard for upholding constructive person” standard for upholding constructive discharge claims.discharge claims.

Illegal Employee Dismissals Illegal Employee Dismissals (cont’d)(cont’d)

Retaliation DischargeRetaliation Discharge Employment laws prohibit employers from Employment laws prohibit employers from

retaliating against employees when exercising retaliating against employees when exercising their rights under these statutes.their rights under these statutes.

Proper handling of these employees involves:Proper handling of these employees involves: Taking no adverse employment action against Taking no adverse employment action against

employees when they file discrimination charges. employees when they file discrimination charges. Treating the employees consistently and objectively. Treating the employees consistently and objectively. Harboring no animosity toward the employees when Harboring no animosity toward the employees when

they file discrimination lawsuits.they file discrimination lawsuits.

Plant Closing NotificationPlant Closing Notification

Workers’ Adjustment Retraining and Workers’ Adjustment Retraining and Notification Act (WARN) of 1989Notification Act (WARN) of 1989

Requires organizations with more than 100 Requires organizations with more than 100 employees to give employees and their employees to give employees and their communities sixty days’ notice of any closure or communities sixty days’ notice of any closure or layoff affecting fifty or more full-time employees.layoff affecting fifty or more full-time employees.

Terminated employees must be notified individually in Terminated employees must be notified individually in writing.writing.

The act allows several exemptions, including The act allows several exemptions, including “unforeseeable circumstances.”“unforeseeable circumstances.”

Explicit ContractsExplicit Contracts

Non-compete Agreements

Intellectual Property Agreements

Nonpiracy Agreements

Binding ContractRestrictions

Privacy RightsPrivacy Rights

Employee Privacy versus Employer ObligationsEmployee 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

• Substance Abuse and Drug Testing

• Searches and Monitoring• Access to Personnel Files• E-mail and Voice Mail• Conduct Outside the

Workplace• Genetic Testing

QuestionsQuestions

Given the facts of this case, Given the facts of this case, should John have been should John have been discharged? Explaindischarged? ExplainShould the sales Should the sales representatives of AEM be representatives of AEM be held to a higher standard of held to a higher standard of conduct than sales conduct than sales representatives or other types representatives or other types of organizations? Explainof organizations? ExplainShould management have Should management have considered John’s past work considered John’s past work record before deciding on record before deciding on discharge? Explaindischarge? Explain

What role if any should What role if any should Mary’s past work record play Mary’s past work record play in this case? Explainin this case? ExplainDoes management have a Does management have a right to know why employees right to know why employees refuse to work overtime? refuse to work overtime? ExplainExplainEvaluate the arguments of Evaluate the arguments of Mary Schwartz and Mary Schwartz and management in this case.management in this case.If you were a member of the If you were a member of the peer review how would you peer review how would you vote in this case? Why?vote in this case? Why?

Off-duty behavior Absenteeism

Problem Behavior in the Problem Behavior in the WorkplaceWorkplace

TardinessTardiness

WithdrawalWithdrawal

Safety infractionsSafety infractions

AbsenteeismAbsenteeism

TheftTheft

HarassmentHarassment

SabotageSabotage

ViolenceViolence

Workplace IncivilityWorkplace Incivility

Rude, discourteous, insensitive Rude, discourteous, insensitive behaviorsbehaviors

Violation of organizational normsViolation of organizational norms

May include:May include: Crude behavior or wordsCrude behavior or words Unprofessional conductUnprofessional conduct Disrespect, lack of respect for othersDisrespect, lack of respect for others Failure to share credit or informationFailure to share credit or information

Effects of IncivilityEffects of IncivilitySurvey of 1,400 employees who reported Survey of 1,400 employees who reported

being the target of incivility at work:being the target of incivility at work:90% reported “ripple” effects90% reported “ripple” effects

52% lost time worrying52% lost time worrying

24% put in less hours24% put in less hours

28% wasted time avoiding instigator28% wasted time avoiding instigator

22% decreased work effort22% decreased work effort

46% thought about quitting46% thought about quitting

12% eventually quit the company12% eventually quit the company

Pearson, Andersson, Porath and Wegner, 2000Pearson, 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 PatternsSpiraling Patterns

A BA B

AA B B

AA BB

AA BB

AA BB

AA BB

Spiraling PatternsSpiraling Patterns

AA BB

CC DD

AA BB

Incivility spreads through the workplace…

…or leads to turnover.

HR Employee Discipline HR Employee Discipline BasicsBasics

Document, Document, DocumentDocument, Document, Document Clearly communicate rules and expectationsClearly communicate rules and expectations Be consistent in responding to rule violationsBe consistent in responding to rule violations Ignoring problems almost always makes them worseIgnoring problems almost always makes them worse Use the performance appraisal process if possible Use the performance appraisal process if possible Look for mitigating factors in performance problemsLook for mitigating factors in performance problems See all sides of the issueSee all sides of the issue Be ready to counsel managers on company policies Be ready to counsel managers on company policies

and options for dealing with employeesand options for dealing with employees Use common senseUse common sense

Importance of Good Importance of Good DisciplineDiscipline

Turnover is expensiveTurnover is expensive Behavior may escalate to aggression or Behavior may escalate to aggression or

violenceviolence Sets precedents that erode values and cultureSets precedents that erode values and culture Impacts productivity and customer serviceImpacts productivity and customer service Employees react to how co-workers are Employees react to how co-workers are

treatedtreated Ignoring problem behavior may lead to Ignoring problem behavior may lead to

perceptions of inequity in other employeesperceptions of inequity in other employees

The Results of InactionThe Results of InactionReasons given by supervisors for their failure to impose a Reasons given by supervisors for their failure to impose a

disciplinary penalty:disciplinary penalty:1.1. The supervisor failed to document earlier actions, so no record The supervisor failed to document earlier actions, so no record

existed on which to base subsequent disciplinary action.existed on which to base subsequent disciplinary action.

2.2. Supervisors believed they would receive little or no support Supervisors believed they would receive little or no support from higher management for the disciplinary action.from higher management for the disciplinary action.

3.3. The supervisor was uncertain of the facts underlying the The supervisor was uncertain of the facts underlying the situation requiring disciplinary action.situation requiring disciplinary action.

4.4. Failure by the supervisor to discipline employees in the past Failure by the supervisor to discipline employees in the past for a certain infraction caused the supervisor to forgo current for a certain infraction caused the supervisor to forgo current disciplinary action in order to appear consistent.disciplinary action in order to appear consistent.

5.5. The supervisor wanted to be seen as a likable person.The supervisor wanted to be seen as a likable person.

Setting Organizational RulesSetting Organizational Rules

Publish Widely Keep in Writing

Explain Reasons Remind/Restate

Get Signed Statements

of Understanding

Review Regularly Be Reasonable

Guidelines for

Implementationof

Organizational Rules

Discipline Discipline Definitions of DisciplineDefinitions of Discipline

Treatment that punishes.Treatment that punishes.

Orderly behavior in an Orderly behavior in an organizational setting.organizational setting.

Training that molds and Training that molds and strengthens desirable strengthens desirable conduct or corrects conduct or corrects undesirable conduct and undesirable conduct and develops self-control.develops self-control.

A Disciplinary ModelA Disciplinary Model

Considerations in Considerations in Disciplinary InvestigationsDisciplinary Investigations

What is the offense?What is the offense? Did the employee know he or she did Did the employee know he or she did

wrong?wrong? Is the employee guilty?Is the employee guilty? Are there extenuation circumstances?Are there extenuation circumstances? Has the rule been uniformly enforced?Has the rule been uniformly enforced? What is employee’s past work record?What is employee’s past work record?

Documentation of Employee Documentation of Employee MisconductMisconduct

1.1. Date, time, and location of the incident(s)Date, time, and location of the incident(s)

2.2. Negative performance or behavior exhibited by the employee—Negative performance or behavior exhibited by the employee—the problemthe problem

3.3. Consequences of that action or behavior on the employee’s Consequences of that action or behavior on the employee’s overall work performance and/or the operation of the overall work performance and/or the operation of the employee’s work unitemployee’s work unit

4.4. Prior discussion(s) with the employee about the problemPrior discussion(s) with the employee about the problem

5.5. Disciplinary action to be taken and specific improvement Disciplinary action to be taken and specific improvement expectedexpected

6.6. Consequences if improvement is not made and a follow-up dateConsequences if improvement is not made and a follow-up date

7.7. The employee’s reaction to the supervisor’s attempt to change The employee’s reaction to the supervisor’s attempt to change behaviorbehavior

8.8. The names of witnesses to the incident (if appropriate)The names of witnesses to the incident (if appropriate)

The Investigative InterviewThe Investigative InterviewConduct of an InterviewConduct of an Interview

Concentrate on how the offense violated the Concentrate on how the offense violated the performance and behavior standards of the job.performance and behavior standards of the job.

Avoid getting into personalities or areas unrelated to Avoid getting into personalities or areas unrelated to job performance.job performance.

Give the employee a full opportunity to explain his or Give the employee a full opportunity to explain his or her side of the issue.her side of the issue.

NLRB v Weingarten,Inc.NLRB v Weingarten,Inc. The Supreme Court upheld an NLRB ruling in favor of The Supreme Court upheld an NLRB ruling in favor of

the employee’s right to representation during an the employee’s right to representation during an investigative interview in a unionized organization.investigative interview in a unionized organization.

Approaches to DisciplineApproaches to DisciplineProgressive DisciplineProgressive Discipline

When applying corrective measures by increasing When applying corrective measures by increasing degrees, always be sure that employees:degrees, always be sure that employees:

Know where they stand regarding offenses. Know where they stand regarding offenses. Know what improvement is expected of them.Know what improvement is expected of them. Understand what happens next if improvement is not made.Understand what happens next if improvement is not made.

Positive, or Non-punitive, DisciplinePositive, or Non-punitive, Discipline Discipline that focuses on the early correction of Discipline that focuses on the early correction of

employee misconduct, with the employee taking employee misconduct, with the employee taking total responsibility for correcting the problem.total responsibility for correcting the problem.

Progressive DisciplineProgressive Discipline

Progressive discipline procedures dictate Progressive discipline procedures dictate specific warning steps depending on the specific warning steps depending on the persistence of the behavior. persistence of the behavior.

Verbal warning – talk to the employeeVerbal warning – talk to the employee Written warning Written warning SuspensionSuspension DismissalDismissal

Gross misconduct grounds for discharge.Gross misconduct grounds for discharge.

Encourages employees to assume responsibility for Encourages employees to assume responsibility for their actions.their actions.

Supervisor uses counseling skills to motivate the Supervisor uses counseling skills to motivate the employee to change.employee to change.

Supervisors must receive appropriate training.Supervisors must receive appropriate training. Supervisor and employee agree on goals and methods for Supervisor and employee agree on goals and methods for

addressing problem behavior.addressing problem behavior.

Companies use “discipline days” to communicate Companies use “discipline days” to communicate seriousness and commitment.seriousness and commitment.

Also ends with dischargeAlso ends with discharge

Positive DisciplinePositive Discipline

Informing the EmployeeInforming the EmployeeConducting a Discharge Meeting:Conducting a Discharge Meeting:

1.1. Come to the point within the first two or three minutes, and list in Come to the point within the first two or three minutes, and list in a logical order all reasons for the termination.a logical order all reasons for the termination.

2.2. Be straightforward and firm, tactful, remain resolute in your Be straightforward and firm, tactful, remain resolute in your decision.decision.

3.3. Make the discussion private, businesslike, and fairly brief.Make the discussion private, businesslike, and fairly brief.

4.4. Don’t mix the good with the bad. Trying to sugarcoat the problem Don’t mix the good with the bad. Trying to sugarcoat the problem sends a mixed message to the employee.sends a mixed message to the employee.

5.5. Avoid making accusations against the employee and injecting Avoid making accusations against the employee and injecting personal feelings into the discussion.personal feelings into the discussion.

6.6. Avoid bringing up any personality differences between you and Avoid bringing up any personality differences between you and the employee.the employee.

7.7. Provide any information concerning severance pay and the status Provide any information concerning severance pay and the status of benefits and coverage.of benefits and coverage.

8.8. Explain how employment inquiries from future employers will be Explain how employment inquiries from future employers will be handled.handled.

Due ProcessDue ProcessAn employee’s right to present his or her position An employee’s right to present his or her position

during a disciplinary action.during a disciplinary action. To know job expectations and the consequences of not To know job expectations and the consequences of not

fulfilling those expectations.fulfilling those expectations. To consistent and predictable management action for To consistent and predictable management action for

the violation of rules.the violation of rules. To fair discipline based on facts, To fair discipline based on facts,

to question those facts, and the to question those facts, and the right to present a defense.right to present a defense.

To appeal disciplinary action. To appeal disciplinary action. The right to progressive discipline.The right to progressive discipline.

Alternative Dispute Alternative Dispute ResolutionResolution

““ADR”ADR” Different types of employee complaint or dispute-resolution Different types of employee complaint or dispute-resolution

procedures used to meet employees’ expectations for fair procedures used to meet employees’ expectations for fair treatment in the workplace while guaranteeing them due treatment in the workplace while guaranteeing them due process.process.

ADR ProceduresADR Procedures Step-Review SystemsStep-Review Systems Peer-Review SystemsPeer-Review Systems Open-Door PolicyOpen-Door Policy Ombudsman SystemOmbudsman System MediationMediation ArbitrationArbitration

Alternative Dispute Alternative Dispute Resolution ProceduresResolution Procedures

Step-Review SystemStep-Review System System for reviewing employee complaints and System for reviewing employee complaints and

disputes by successively higher levels of disputes by successively higher levels of management.management.

Peer-Review SystemPeer-Review System A group composed of equal numbers of employee A group composed of equal numbers of employee

representatives and management appointees.representatives and management appointees. Functions as a jury since its members weigh Functions as a jury since its members weigh

evidence, consider arguments, and after evidence, consider arguments, and after deliberation, vote independently to render a final deliberation, vote independently to render a final decision.decision.

Conventional Step-Review Conventional Step-Review Appeal ProcedureAppeal Procedure

Additional ADR ProceduresAdditional ADR ProceduresOpen-Door PolicyOpen-Door Policy

A policy of settling grievances that identifies various A policy of settling grievances that identifies various levels of management above the immediate supervisor levels of management above the immediate supervisor for employee contact.for employee contact.

Ombudsman SystemOmbudsman System OmbudsmanOmbudsman

Is a designated individual from whom employees may seek Is a designated individual from whom employees may seek counsel for the resolution of their complaints.counsel for the resolution of their complaints.

Is an advocate for a fair process, not an advocate on behalf of Is an advocate for a fair process, not an advocate on behalf of individuals or the institution.individuals or the institution.

Does not have the power to decide or to overrule a decision, but Does not have the power to decide or to overrule a decision, but can confidentially seek an equitable solution between the can confidentially seek an equitable solution between the employee and the supervisor.employee and the supervisor.

Third-party Dispute Third-party Dispute ResolutionResolution

MediationMediation The use of an impartial neutral to reach a The use of an impartial neutral to reach a

compromise decision in employment disputescompromise decision in employment disputes

MediatorMediator A third party in an employment dispute who A third party in an employment dispute who

meets with one party and then the other in meets with one party and then the other in order to suggest compromise solutions or to order to suggest compromise solutions or to recommend concessions from each side that recommend concessions from each side that will lead to an agreement.will lead to an agreement.

Third-party Dispute Third-party Dispute Resolution (cont’d)Resolution (cont’d)

ArbitrationArbitration The use of an impartial neutral party as The use of an impartial neutral party as

decision maker to resolve an employment decision maker to resolve an employment labor dispute by imposing a binding final labor dispute by imposing a binding final decision on all parties involved in the dispute.decision on all parties involved in the dispute.

ArbitratorArbitrator Third-party neutral who resolves a labor Third-party neutral who resolves a labor

dispute by issuing a final decision in the dispute by issuing a final decision in the disagreement.disagreement.

Managerial Ethics in Managerial Ethics in Employee RelationsEmployee Relations

EthicsEthics A set of standards of conduct and moral judgments A set of standards of conduct and moral judgments

that help to determine right and wrong behavior.that help to determine right and wrong behavior. Provides cultural guidelines—organizational or societal—Provides cultural guidelines—organizational or societal—

that help decide between proper or improper conduct.that help decide between proper or improper conduct.

Code of EthicsCode of Ethics Is a set of written standards of conduct (ethical Is a set of written standards of conduct (ethical

values) governing relations with employees and the values) governing relations with employees and the public.public.

Provides a basis for the organization, and individual Provides a basis for the organization, and individual managers, to evaluate their plans and actions.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