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Module 11: Managing Employee Performance

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Employee Rights
LEARNING OBJECTIVES


1. Be able to explain employee rights.

2. Define unions and explain their relation to the HRM function.

Employee rights is defined as the ability to receive fair treatment from employers. This section will discuss employee rights surrounding job protection, privacy, and unionization.
Job Protection Rights

If HR doesn’t understand or properly manage employee rights, lawsuits are sure to follow. It is the HR

professional’s job to understand and protect the rights of employees. In the United States,

the employment-at-will principle (EAW) is the right of an employer to fire an employee or an employee to leave an organization at any time, without any specific cause. The EAW principle gives both the employee and employer freedom to terminate the relationship at any time. There are three main exceptions to this principle, and whether they are accepted is up to the various states:
1. Public policy exception. With a public policy exception, an employer may not fire an employee if it would violate the individual state’s doctrine or statute. For example, in Borse v. Piece Goods Shop in Pennsylvania, a federal circuit court of appeals ruled that Pennsylvania law may protect at-will employees from being fired for refusing to take part in drug test programs if the employee’s privacy is invaded. Borse contended that the free speech provisions of the state and of the First Amendment protected the refusal to participate. Some public policy exceptions occur when an employee is fired for refusing to violate state or federal law.
2. Implied contract exception. In a breach of an implied contract, the discharged employee can prove that

the employer indicated that the employee has job security. The indication does not need to be formally written, only implied. InWright v. Honda, an Ohio employee was terminated but argued that the implied contract exception was relevant to the employment-at-will doctrine. She was able to prove that in orientation, Honda stressed to employees the importance of attendance and quality work. She was also able to prove that the language in the associate handbook implied job security: “the job security of each employee depends upon doing your best on your job with the spirit of cooperation.” Progress reports showing professional development further solidified her case, as she had an implied contract that Honda had altered the employment-at-will doctrine through its policies and actions.


3. Good faith and fair dealing exception. In thegood faith and fair dealing exception, the discharged employee contends that he was not treated fairly. This exception to the employment-at-will doctrine is less common than the first two. Examples might include firing or transferring of employees to prevent them from collecting commissions, misleading employees about promotions and pay increases, and taking extreme actions that would force the employee to quit.
Table 10.1 State’s Acceptance of Employment-at-Will Exceptions


State Public-Policy
Exception Implied-Contract
Exception Good Faith and Fair Dealing
Exception
Alabama no yes yes
Alaska yes yes yes
Arizona yes yes yes
Arkansas yes yes no
California yes yes yes
Colorado yes yes no
Connecticut yes yes no
Delaware yes no yes
District of
Columbia

yes

yes

no
Florida no no no
Georgia no no no
Hawaii yes yes no
Idaho yes yes yes
Illinois yes yes no
Indiana yes no no




State Public-Policy
Exception Implied-Contract
Exception Good Faith and Fair Dealing
Exception
Iowa yes yes no
Kansas yes yes no
Kentucky yes yes no
Louisiana no no no
Maine no yes no
Maryland yes yes no
Massachusetts yes no yes
Michigan yes yes no
Minnesota yes yes no
Mississippi yes yes no
Missouri yes no no
Montana yes no no
Nebraska no yes no
Nevada yes yes yes
New Hampshire yes yes no
New Jersey yes yes no
New Mexico yes yes no
New York no yes no
North Carolina yes no no




State Public-Policy
Exception Implied-Contract
Exception Good Faith and Fair Dealing
Exception
North Dakota yes yes no
Ohio yes yes no
Oklahoma yes yes no
Oregon yes yes no
Pennsylvania yes no no
Rhode Island no no no
South Carolina yes yes No
South Dakota yes yes no
Tennessee yes yes no
Texas yes no no
Utah yes yes yes
Vermont yes yes no
Virginia yes no no
Washington yes yes no
West Virginia yes yes no
Wisconsin yes yes no
Wyoming yes yes yes
Bold text indicates a state with all three exceptions.
Italic text indicates a state with none of the three exceptions.


When one of the exceptions can be proven, wrongful discharge accusations may occur. The United States is one of the few major industrial powers that utilize an employment-at-will philosophy. Most countries, including France and the UK, require employers to show just cause for termination of a person’s
employment. [1] The advantage of employment at will allows for freedom of employment; the possibility of

wrongful discharge tells us that we must be prepared to defend the termination of an employee, as to not be charged with a wrongful discharge case.
Employees also have job protection if they engage in whistleblowing.Whistleblowing refers to an

employee’s telling the public about ethical or legal violations of his or her organization. This protection was granted in 1989 and extended through the Sarbanes-Oxley Act of 2002. Many organizations create
whistleblowing policies and a mechanism to report illegal or unethical practices within the organization. [2]

Another consideration for employee job protection is that of an implied contract. It is in the best interest of HR professionals and managers alike to avoid implying an employee has a contract with the organization. In fact, many organizations develop employment-at-will policies and ask their employees to sign these policies as a disclaimer for the organization.
A constructive discharge means the employee resigned, but only because the work conditions were so intolerable that he or she had no choice. For example, if James is being sexually harassed at work, and it is so bad he quits, he would need to prove not only the sexual harassment but that it was so bad it required him to quit. This type of situation is important to note; should James’s case go to court and sexual harassment and constructive discharge are found, James may be entitled to back pay and other compensation.
The Worker Adjustment and Retraining Notification Act (WARN) requires organizations with more than one hundred employees to give employees and their communities at least sixty days’ notice of closure or layoff affecting fifty or more full-time employees. This law does not apply in the case of unforeseeable business circumstances. If an employer violates this law, it can be subject to back pay for
employees. [3] This does not include workers who have been with the organization for less than six months,

however.

Retaliatory discharge means punishment of an employee for engaging in a protected activity, such as filing a discrimination charge or opposing illegal employer practices. For example, it might include poor


treatment of an employee because he or she filed a workers’ compensation claim. Employees should not

be harassed or mistreated should they file a claim against the organization.
Privacy Rights

Technology makes it possible to more easily monitor aspects of employees’ jobs, although a policy on this subject should be considered before implementing it. In regard to privacy, a question exists whether an employer should be allowed to monitor an employee’s online activities. This may include work e-mail, websites visited using company property, and also personal activity online.
Digital Footprints, Inc. is a company that specializes in tracking the digital movements of employees and can provide reports to the organization by tracking these footprints. This type of technology might look for patterns, word usage, and other communication patterns between individuals. This monitoring can be useful in determining violations of workplace policies, such as sexual harassment. This type of software and management can be expensive, so before launching it, it’s imperative to address its value in the workplace.
Another privacy concern can include monitoring of employee postings on external websites. Companies such as Social Sentry, under contract, monitor employee postings on sites such as Facebook, Twitter,
LinkedIn, and YouTube. [4] Lawyers warn, however, that this type of monitoring should only be done if the

employee has consented. [5] A monitoring company isn’t always needed to monitor employees’ movements

on social networking. And sometimes employees don’t even have to tweet something negative about their

own company to lose their job. A case in point is when Chadd Scott, who does Atlanta sports updates for

680/The Fan, was fired for tweeting about Delta Airlines. In his tweet, he complained about a Delta delay and said they did not have enough de-icing fluid. Within a few hours, he was fired from his job, because
Delta was a sponsor of 680/The Fan. [6]

The US Patriot Act also includes caveats to privacy when investigating possible terrorist activity. The Patriot Act requires organizations to provide private employee information when requested. Overall, it is a good idea to have a clear company policy and perhaps even a signed waiver from employees stating they understand their activities may be monitored and information shared with the US government under the Patriot Act.
Depending on the state in which you live, employees may be given to see their personnel files and the right to see and correct any incorrect information within their files. Medical or disability information


should be kept separate from the employee’s work file, per the Americans with Disabilities Act. In addition, the Health Insurance Portability and Accountability Act (HIPAA) mandates that health information should be private, and therefore it is good practice to keep health information in a separate file as well.
Finally, drug testing and the right to privacy is a delicate balancing act. Organizations that implement drug testing often do so for insurance or safety reasons. Because of theDrug-Free Workplace Act of 1988, some federal contractors and all federal grantees must agree they will provide a drug-free workplace, as a condition of obtaining the contract. The ADA does not view testing for illegal drug use as a medical examination (making them legal), and people using illegal drugs are not protected under the
ADA; [7] however, people covered under ADA laws are allowed to take medications directly related to their

disability. In a recent case, Bates v. Dura Automotive Systems, an auto parts manufacturer had a high accident rate and decided to implement drug testing to increase safety. Several prescription drugs were banned because they were known to cause impairment. The plaintiffs in the case had been dismissed from their jobs because of prescription drug use, and they sued, claiming the drug-testing program violated
ADA laws. [8] However, the Sixth Circuit Court reversed the case because the plaintiffs were not protected

under ADA laws (they did not have a documented disability).

In organizations where heavy machinery is operated, a monthly drug test may be a job requirement. In fact, under the Omnibus Transportation Employee Testing Act of 1991, employers are legally required to test for drugs in transportation-related businesses such as airlines, railroads, trucking, and public


trans porta tion, such as
bus syste ms. Medi cal marij uana is a relati vely new issue
that


is still being addressed in states that allow its use. For example, if the company requires a drug test and the employee shows positive for marijuana use, does asking the employee to prove it is being used for
medical purposes violate HIPAA privacy laws? This issue is certainly one to watch over the coming years.
HUMAN RESOURCE RECALL


What does the term retaliatory discharge mean?
Labor Unions

A union is an organization of employees formed to bargain with an employer. We discuss labor unions in greater detail in Chapter 12 "Working with Labor Unions". It is important to mention unions here, since


labor contracts often guide the process for layoffs and discipline. Labor unions have been a part of the US workplace landscape since the late 1920s, but the Wagner Act of 1935 significantly impacted labor and management relations by addressing several unfair labor practices. The National Labor Relations Board is responsible for administering and enforcing the provisions outlined in the Wagner Act. The act made acts such as interfering with the formation of unions and discriminating on the basis of union membership illegal for employers. By the 1940s, 9 million people were members of a union, which spurred the passage of the Taft-Hartley Act. This act set a new set of standards for fair practices by the unions, within a unionized environment.
The purpose of a union is to give collective bargaining power to a group of individuals. For example, instead of one person negotiating salary, a union gives people the power to bargain as a group, creating a shift from the traditional power model. Issues to negotiate can include pay, health benefits, working hours, and other aspects relating to a job. People often decide to form a union if they perceive the organization or management of the organization is treating them unfairly. Some people also believe that belonging to a union means higher wages and better benefits.
Many employers feel it is not in the best interest of the organization to unionize, so they will engage in strategies to prevent unionization. This is discussed further in Chapter 12 "Working with Labor
Unions". However, the Taft-Hartley Act says that employers can express their views about unions but may not threaten employees with loss of job or other benefits if they unionize. Some of the talking points an organization might express about unions include the following:
1. Less ability to deal more informally with the organization

2. Possibility of strikes

3. Payment of union dues by employees

4. Emphasis on what positive aspects the employer has provided

If employees still unionize, managers and HR professionals alike will engage in the bargaining process. The collective bargaining process is the process of negotiating an agreement between management and employees. This process ultimately defines the contract terms for employees. In negotiating with the union, being prepared is important. Gathering data of what worked with the old contract and what didn’t can be a good starting point. Understanding the union’s likely requests and preparing a counteraction to these requests and possible compromises should be done before even sitting down to the bargaining table.


One of the better strategies for negotiating a contract is called interest-based bargaining. In this type of bargaining, mutual interests are brought up and discussed, rather than each party coming to the table with a list of demands. This can create a win-win situation for both parties.
Once an agreement has been decided, the union members vote whether to accept the new contract. If the contract is accepted, the next task is to look at how to administer the agreement.
First, the HR professional must know the contract well to administer it well. For example, if higher pay is successfully negotiated, obviously it would be the job of HR to implement this new pay scale. The HR professional may need to develop new sets of policies and procedures when a new agreement is in place. One such procedure HR may have to work with occasionally is the grievance process. As we will discuss
in Chapter 12 "Working with Labor Unions", the grievance process is a formal way by which employees can submit a complaint regarding something that is not administered correctly in the contract. Usually, the grievance process will involve discussions with direct supervisors first, discussions with the union representative next, and then the filing of a formal, written grievance complaint. Management is then required to provide a written response to the grievance, and depending on the collective bargaining agreement, a formalized process is stated on how the appeals process would work, should the grievance not be solved by the management response. One such example is the dismissal of members of the National Air Traffic Controller Association (union). In 2011, of the 140 proposed dismissals of air traffic
controllers, 58 had penalties rescinded, reduced, or deferred. [9] This is because of due-process protections

used to prevent mass firings when a new administration comes to power. Federal workers, including controllers, can challenge disciplinary action penalties through a government panel called the Merit Systems Protection Board. The process is described in union contracts and mentions involvement of an
arbitrator, if necessary.
HOW WOULD YOU HANDLE THIS?


To Join or Not to Join

As the HR manager for a two-hundred-person company, you have always worked hard to ensure that workers received competitive benefits and salaries. When you hear rumors of the workers’ wanting to form a union, you are a little distressed, because you feel everyone is treated fairly. How would you handle this?
How Would You Handle This?

https://api.wistia.com/v1/medias/1360807/embed


KEY TAKEAWAYS


• The employment-at-will principle means that an employer can separate from an employee without cause, and vice versa.
• Even though we have employment at will, a wrongful discharge can occur when there are violations of public policy, an employee has a contract with an employer, or an employer does something outside the boundaries of good faith.
• Whistleblowing is when an employee notifies organizations of illegal or unethical activity.

Whistleblowers are protected from discharge due to their activity.

• A constructive discharge means the conditions are so poor that the employee had no choice but to leave the organization.
• The Worker Adjustment and Retraining Notification Act (WARN) is a law that requires companies

of one hundred or more employees to notify employees and the community if fifty or more employees are to be laid off.
• A retaliatory discharge is one that occurs if an employer fires or lays off an employee owing to a charge the employee filed. For example, if an employee files a workers’ compensation claim and then is let go, this could be a retaliatory discharge.
• The privacy of employees is an issue that HR must address. It is prudent to develop policies surrounding what type of monitoring may occur within an organization. For example, some organizations monitor e-mail, computer usage, and even postings on social network sites.
• Drug testing is also a privacy issue, although in many industries requiring safe working conditions, drug testing can be necessary to ensure the safety of all employees.
• A union is a group of workers who decide to work together toward a collective bargaining agreement. This agreement allows workers to negotiate as one, rather than as individuals.
• The Wagner Act, passed in 1935, addresses many issues related to workers’ unionization.

• The process of collective bargaining means to negotiate a contract between management and workers. HR is generally part of this process.


• Interest based bargaining occurs when mutual interests are discussed, rather than starting with a list of demands.
• Once an agreement is reached, HR is generally responsible for knowing the agreement and implementing any changes that should occur as a result of the agreement. One such example is
understanding the grievance process.
EXERCISES


1. Perform an Internet search and find a union agreement. Discuss how the union agreement handles terminations and grievances.
2. Compare and contrast the differences between a retaliatory discharge and a constructive

discharge.



[1] USLegal, “Employment at Will,” accessed March 15, 2011,http://employment.uslegal.com/employment-at-

will/.

[2] Lilanthi Ravishankar, “Encouraging Internal Whistle Blowing,” Santa Clara University, accessed March 15,

2011,http://www.scu.edu/ethics/publications/submitted/whistleblowing.html.

[3] US Department of Labor, “WARN Fact Sheet,” accessed March 15,

2011,http://www.doleta.gov/programs/factsht/warn.htm.

[4] Teneros Corporation, “Social Sentry Lets Employers Track Their Workers across the Internet,” accessed March

17, 2011,http://www.readwriteweb.com/archives/social_sentry_track_employees_across_the_web.php.

[5] People Management, “Employers Should Have Monitoring Policy for Social Networks,” accessed March 17,

2011,http://www.peoplemanagement.co.uk/pm/articles/2011/02/employers-should-have-monitoring-policy-for-

social-networks.htm.

[6] Rodney Ho, “Chadd Scott Said He Was Fired for Tweets about Delta,” Access Atlanta (blog), accessed March 16,

2011, http://blogs.ajc.com/radio-tv-talk/2011/03/15/680the-fans-chadd-scott-said-he-was-fired-for-tweets-about-

delta-airlines/?cxntlid=thbz_hm.

[7] US Equal Employment Opportunity Commission, “The ADA, Your Responsibilities as an Employer,” accessed

August 1, 2011, http://www.eeoc.gov/facts/ada17.html.

[8] Jackson lewis, “Employees’ ADA Claims on Prescription-Drug-Use Dismissals Rejected by Federal Court,”

December 1, 2010, accessed August 1, 2011,http://www.jacksonlewis.com/resources.php?NewsID=3478.


[9] John Hughes, "You're Fired Doesn't Mean Fired to Four of 10 Air Traffic Controllers,"Bioomberg News, July 24,

2011, accessed August 1, 2011,http:(/www.bloomberg.com/news/2011-07-25/-you-re-fired-doesn-t-mean-fired- to-four-of-10-a ir-controllers.html.








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