Employee Rights & Responsibilities Module 6 How to deal
with employee complaints
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Exercise Everyone get up and move at least 3 seats away from
where you are right now?
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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
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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.
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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.
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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 Woods
treatise stating [Woods treatise] is an American authority of high
repute Union Represented employees are not EAW employees
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Wrongful Discharge Termination of an individuals 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
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Keys for Preparing a Defense Against Wrongful Discharge: The
Paper Trail
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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.
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Criteria for Evaluating Just Cause and Due Process
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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
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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 theyve
got. When youve 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
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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?
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Employment Practices Liability Insurance Employment Practices
Liability Insurance (EPLI) Covers employers costs for legal fees,
settlements, and judgments associated with employment- related
actions such as: Discrimination 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
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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
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Employee Rights and Personal Behavior Body Appearance An
employer can place legitimate job-related limits on an employees
personal at-work appearance such as tattoos and body piercings.
Off-Duty Behavior An employer can discipline an employee if the
employees off-the-job behavior puts the company in legal or
financial jeopardy.
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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
employees consent
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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.
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Recommended Employer Actions on E-mail and Voice Mail
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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?
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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.
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How Substance Abuse Affects Employers Financially
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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.
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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?
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Drug Testing 80% of major firms test Positive- get second
opinion Adulterants/Dilution Tests- cheap but only on request
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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 employees 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?
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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)
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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
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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.
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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)
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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
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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., dont 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.
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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 difficultfeeling
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).