Chapter 4: Employee Rights and Discipline
Chapter 4:
Employee Rights and Discipline
Learning Outcomes
After reading this chapter, students should be able to:
1. Explain the employer record-keeping responsibilities and laws related to keeping and
collecting employee information.
2. Discuss employer concerns about social media use and the components of an effective social
media policy.
3. Identify current issues regarding employee rights.
4. Explain legal and ethical issues involved in monitoring employees in the workplace.
5. Discuss the implications of the employment-at-will doctrine and identify the exceptions to it.
6. Explain the elements of effective discipline policies.
7. Identify important procedures to follow when firing an employee.
8. Explain how issues of employee relations differ in global environments.
Chapter Overview
When an HR professional thinks she has heard everything, someone proves her wrong. This
chapter opener illustrates this point with three “ridiculous but true” disciplinary situations to use
as a discussion starter or assignment. The court findings are in the HRM Workshop at the end of
chapter four for students, and right here for your convenience: The dental assistant’s firing was
upheld because the firing was based on emotion and not sexual harassment. The firing of the
automotive parts store employee was upheld. He had no expectation of privacy because he
initiated the voice mail. The professor was reinstated after a 1-month suspension and
psychological evaluation.
The discussion of these situations introduces the complexity of workplace policies, possible
disciplinary actions – and many other employee rights. Organizations both private and public,
from local to federal, try to develop sound policies and procedures to balance management’s
expectations with worker rights. The chapter goes on to cover those aspects of HR management
which determine whether employees have been treated rightly or wrongly. First, there are the
legal protections employees have, including the Privacy Act, Fair Credit Reporting Act,
Drug-Free Workplace Act, Polygraph Protection Act, and Worker Adjustment and Retraining
Notification Act. Current emerging areas require a delicate balance of employee and employer
rights, include drug testing, honesty testing, whistle-blowing, employee monitoring, and
workplace romance. The chapter also explains the employment-at-will doctrine, a traditional
justification for an employer’s right to hire and fire which is being steadily eroded by various
legal and judicial challenges. Finally, the chapter discusses effective discipline, which respects
the rights of employees while allowing management to meet its objectives. Specific steps are
given for counseling employees who behave inappropriately or whose performance is not up to
standard.
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Chapter 4: Employee Rights and Discipline
Additional features of this chapter:
Exhibits
Exhibit 4 – 1 Selected Laws Affecting Employee Rights
Exhibit 4 – 2 Specific Disciplinary Problems
Exhibit 4 – 3 The Progressive Discipline Process
Exhibit 4 – 4 Documenting Discipline
Exhibit 4 – 5 Firing an Employee Can Be Difficult
Boxed Features
These features are located within the text and address current issues in HRM within the context
of the relevant learning objectives. They are short and thought provoking with thought questions
at the end providing a great opportunity to provide a break in class lecture to check student
understanding. Questions may be posed to students individually, in small groups, as quick
cooperative learning assignments or as large group discussions.
Contemporary Connection – They’re using it on their phones anyway…page 86
Employee access and use of social media at work.
Contemporary Connection – Why Organizations Conduct Drug Tests page 87
Statistics on substance abuse in the workplace.
Tips for Success – What to Know Before Disciplining Employees page 93 Suggestions
for handling one of a manager’s or HR professional’s toughest tasks.
Tips for Success – Are You Part of the Problem? Page 97 Common ways that managers
and HR professionals unconsciously sabotage employee discipline.
Making Concepts Relevant in Your Classroom
In addition to the activities provided in the lecture notes, these suggested activities help students
apply chapter 4 concepts:
The current business and community press is an excellent information resource. You can
bring in, or ask students to bring in, current news stories which relate to employee rights.
Perform an in-class live survey: Ask how many students have taken drug or honesty tests
at work. Ask students to students to stand up, and then sit down when you mention an
employment law that has personally been applied to them.
Choose a controversial HR practice, such as drug testing or employee monitoring.
Divide the class in two parts. Let half of the students consider themselves as employees,
and ask how they would want to be treated. The other half should articulate
management’s perspective on how and why drug testing or employee monitoring should
be used.
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Chapter 4: Employee Rights and Discipline
Invite a speaker from a company which provides HR services related to chapter topics
(testing; background checks; legal advice on discipline and termination).
Assign students to report on their employers’ policies, practices and environments related
to chapter topics, such as disciplinary procedures, unions and workplace romance. Short
(5-minute) presentations will give your students the opportunity to practice public
speaking.
Chapter Outline And Lecture Suggestions
Introduction Slide 3
The dynamic environment covered in the three previous chapters has resulted a an
evolving employee relations landscape.
Employee Records and Related Laws
Learning Objective 1: Explain the employer record keeping responsibilities and laws
related to keeping and collecting employee information
Employee Relations Slide 4
Rights and responsibilities of employers and employees.
Communication, culture, motivation, discipline, and collective bargaining are all
included.
Employee Records Slide 5
HRIS systems store records, allowing employers be more efficient and to go
paperless or nearly so.
Department of Labor sets guidelines for keeping employee records. Usually for
one year:
Job descriptions
Applications
Resumes
Emergency contact information
IRS forms
Performance appraisals
Disciplinary actions
Contracts
Non-compete agreements
Keep in separate file:
Form I-9
Medical records relating to a disability
The Privacy Act Slide 6
The Privacy Act of 1974 requires government agencies to make available to
employees information contained in their personnel files.
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Chapter 4: Employee Rights and Discipline
Similar state laws apply to state and private-sector employees.
Employees may also have the right to review letters of recommendation made on
their behalf.
Restrictions typically include employee waivers of right to review and procedures
which stipulate when and how a file can be accessed.
Computerized information systems add more complexities and potential
flexibility to employee records.
The Fair Credit Reporting Act Slide 7
The Fair Credit Reporting Act of 1971, an extension to the Privacy Act, requires:
Employers to notify employees that their credit is being checked
Employers to provide additional information to applicants who are negatively
affected by a credit check.
Information used must be job relevant.
The Drug-Free Workplace Act Slide 8
The Drug-Free Workplace Act of 1988 requires government agencies, federal
contractors, and those receiving federal funds of $100,000 or more to actively
pursue a drug-free environment.
Companies regulated by the Department of Transportation and Nuclear
Regulatory Commission must test employees in certain jobs for drugs.
Covered organizations must establish and disseminate policies and provide
substance-abuse awareness programs.
The Polygraph Protection Act Slide 9
The Polygraph Protection Act of 1988 prohibits employers in the private sector
from using lie-detector tests in all employment decisions.
Polygraphs may still be used during investigations of suspected criminal activity.
Employees can challenge the results of a polygraph if they believe the test was
inappropriately administered.
The Worker Adjustment and Retraining Notification Act Slide 10
The Worker Adjustment and Retraining Notification Act of 1988, or Plant Closing
Bill, protects employees from unexpected plant closings.
Organizations employing 100 or more individuals must notify workers 60 days in
advance if they are going to close the facility or lay off 50 or more workers.
The law does recognize circumstances in which advance notice is impossible.
Exhibit 4 – 1 Selected Laws Affecting Employee Rights on page 84 lists and
summarizes the above laws.
Social Media Use and Employee Rights Slide 11
Learning Outcome 2: Discuss employer concerns about social media use and the
components of an effective social media policy.
Social Media are online tools for sharing information, ideas, photos and videos.
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Chapter 4: Employee Rights and Discipline
Employee Rights on Social Media Slide 12
Public sector (government) employees have limited protection for online
information.
Private sector (private businesses) employees have very little protection.
Employers can discipline or fire employees for online rants.
Slide 13
National Labor Relations Board recognizes online communication as protected
“concerted activity” if:
Communication was directed at other employees
Employee was addressing terms and conditions of employment or other
issues that could be interpreted and union related.
Examples of Facebook posts that were or were not considered “concerted activity”
are provided on page 86.
Social Media Issues for Employers Slide 14
Productivity problems may arise.
Social media policies should include:
Company policy regarding use at work and away.
Employee privacy expectations when using company internet.
Guidelines for being respectful to company and clients.
Company expectations regarding employee use of company name and
symbols.
Legal repercussions of defamatory remarks.
Use of privacy settings.
Class Activity: Contemporary Connection – They’re using in on their phones
anyway page 86 Some of your students probably used social media during your class.
This is a chance to ask just how connected they are and how they feel about it from the
employer’s perspective. Would they prohibit social media use at work for their own
employees?
Current Issues Regarding Employee Rights Slide 15
Learning Outcome 3: Identify current issues regarding employee rights.
Drug Testing Slide 16
The severity of substance abuse in organizations has led to use of drug testing
even by organizations not covered by the Drug-Free Workplace Act.
Drug testing of current employees typically offers rehabilitation to those who
fail and communicates that drugs will not be tolerated.
Drug testing of job applicants should be done after a job offer is made; those
who fail are generally no longer considered.
Courts have recently upheld firing of employees testing positive for marijuana in
states where laws allow medical or recreational use of marijuana
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Chapter 4: Employee Rights and Discipline
Class Activity: Contemporary Connection – Why Organizations Conduct Drug Tests
page 87 summarizes research about the impact of substance abuse on businesses.
Questions for your class include who should and who should not be drug tested.
Honesty and Integrity Tests Slide 17
Designed to prevent theft, violence sabotage, disciplinary problems and
absenteeism.
Assess honesty, trustworthiness and dependability
Typical tests have multiple questions on the same topic to assess consistency of
responses.
Whistle-Blowing Slide 18
Whistle-blowing occurs when an employee reports his/her employer to an outside
agency over what the employee believes is an illegal or unethical practice.
The federal government protects employees who report violations under the
Sarbanes- Oxley Act, the Consumer Product Safety Act, Occupational Safety and
Health Act and other federally regulated activities.
Laws protecting whistle-blowers vary by state.
Many firms have voluntarily adopted policies to protect employees who identify
problems.
Workplace Romance Slide 19
Workplace romances are a concern to HR professionals because they can lead to:
Accusations of favoritism.
Breeches of ethics.
Low productivity.
Poor employee morale.
Workplace violence.
Most companies have issued policies and guidelines on how relationships at work
may exist and some have employees sign contracts stating the relationships are
consensual to:
Reduce the risk of sexual harassment
Reduce the perception of favoritism.
Provide an opportunity to discuss professional behavior in the workplace.
Remind employees that the workplace does not provide privacy.
Off-Duty Behavior Slide 20
Employee actions outside of work have always been a concern, but smart phones
and social media provide new opportunities for employees to get into trouble and
share it in a very public way.
Employee Protection from disciplinary action based on off-duty behavior is
similar to those listed earlier for social media.
Public sector employees have some protection.
Private sector employees have little to no protection.
Some states (California) provide more protection for private sector
employees.
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Chapter 4: Employee Rights and Discipline
Slide 21
Legalized or decriminalized marijuana laws vary by state and change
often.
Employee Monitoring and Workplace Security Slide 22
Learning Outcome 4: Explain legal and ethical issues involved in monitoring employees
in the workplace.
Employers need to ensure that their interests are protected against security
breaches and employee behaviors such as theft, revealing of trade secrets to
competitors, or using the customer database for personal gain.
Employers must balance these security needs with employee rights.
Employee Monitoring and Workplace Security Issues Slide 23
Companies must make clear policies on what is acceptable and what is not when
monitoring employees.
Employee monitoring policies may include: Slide 24
Use of computers, internet and phones. Slide 25
Password security
Employer and employee rights regarding privacy and use of offices,
lockers, company vehicles including rights to search.
Appropriate internet use and prohibited uses such as gambling, porn,
discrimination, defamation or other illegal purposes.
Privacy of trade secrets, customer, proprietary or financial information.
Requiring employees to use personal devices for work create privacy and security
problems.
Employment-at-Will Doctrine Slide 26
Learning Outcome: 5: Explain the employment-at-will doctrine and relevant exceptions.
The Employment-At-Will Doctrine
Background
The doctrine, based on common law, allows employers to dismiss
employees at any time for any reason.
This doctrine holds in many employment situations today, but has been
modified to prohibit termination based on race, religion, sex, national
origin, age, or disability.
Exceptions to the Doctrine Slide 27
Contractual relationship: A legal agreement exists defining how employee
issues are handled. Discharge may occur if it is based on just-cause.
Implied employment contract: An employee is protected because of verbal
or written statements made by members of the organization, such as promises
of job security or statements in an employee handbook.
Statutory considerations: Federal and/or state laws can create exceptions to
the employment-at-will concept and bar terminations on those exceptions.
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Chapter 4: Employee Rights and Discipline
Public policy violation: Employees cannot be fired for disobeying an illegal
order from the employer or exercising their rights in accordance with societal
laws and statutes.
Breach of good faith: An employer breaches a promise or abuses its
managerial powers.
Constructive Discharge: working conditions are so difficult that employee
was forced to resign.
oMust go beyond uncomfortable or unpleasant to be intolerable by a
“reasonable person” standard.
oExamples: unchecked sexual harassment, ignoring OSHA regulations,
significant pay reductions, refusal to provide lactation room access.
oEmployee typically must provide written notice of conditions to
employer. Constructive discharge occurs if nothing is done in a
reasonable timeframe.
Discipline and Employee Rights Slide 28
Learning Outcome 6: Explain the elements of effective discipline policies.
What is Discipline?
A condition where employees conduct themselves in accordance with the
organization’s rules and standards of acceptable behavior.
Factors to Consider When Disciplining Slide 29
Seriousness of the Problem: How severe is the problem?
Duration of the Problem: Have there been other problems in the past?
Frequency and Nature of the Problem: Is the current problem part of an
emerging or continuing pattern of disciplinary infractions?
Extenuating Factors: Do extenuating circumstances relate to the problem?
Degree of Socialization: To what extent has management made an earlier
effort to educate the person causing the problem about the existing rules and
procedures and consequences of violations?
History of Organization’s Discipline Practices: How have similar
infractions been dealt with in the past within the department?
Management Backing: If employees decide to take their case to a higher
level in management, will you have reasonable evidence to justify your
decision?
Class Activity: Tips for Success – What to Know Before Disciplining Employees page
93 The question following the list in this feature asks how workplace culture would be
affected if the suggestions listed were consistently followed. It’s a great question for class
discussion. Students are certain to have a variety of examples of situations of what goes
wrong when they are NOT followed.
Exhibit 4 – 2: Specific Disciplinary Problems page 95 includes a list of common
disciplinary problems.
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Chapter 4: Employee Rights and Discipline
Disciplinary Guidelines Slide 30
Managers and supervisors often have little training or experience in effective
ways to apply disciplinary policies consistently and evenly.
A few guidelines and a bit of training can make a big difference in workplace
culture.
Make disciplinary action corrective rather than punitive.
The object is to correct the employee’s behavior.
Use a progressive discipline approach.
Verbal warning; written warning; suspension; dismissal.
Follow the hot-stove rule which involves: Slide 31
Immediate response: Discipline should be administered within a
reasonable time frame after the violation occurs.
Advance warning: Employer must make employee aware of the
organization’s rules and acceptable standards of behavior, along
with what discipline a violation will incur.
Consistent action: Disciplinary action must be consistent to
ensure fair employee treatment.
Impersonal application: Discipline should be directed at what
employees have done, not the employees themselves.
U.S. Supreme Court Case of NLRB v. J. Weingarten, Inc. Slide 32
Employees in a union setting are allowed to have union representative available at
disciplinary meetings.
In 2004, the NLRB ruled these rights do not apply outside union settings.
Exhibit 4 – 3 The Progressive Discipline Process page 97 illustrates the continuum of
disciplinary actions from least to most severe.
Progressive Discipline Slide 33
System of disciplinary actions that follow a sequence of four steps that increase in
severity, ending with dismissal.
Written verbal warning:
Supervisor meets with employee and makes a temporary record of
reprimand.
Includes purpose, date and outcome of meeting.
Meeting is conducted in private.
Written warning:
Copy becomes part of employee’s official personnel file.
Similar process to written verbal warning, except written warning
becomes part of employee permanent record.
Suspension:
Taken if prior steps were ineffective or if problem is severe.
Time off for discipline can be controversial, but may communicate
management’s seriousness.
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Chapter 4: Employee Rights and Discipline
Exhibit 4-4 Documenting Discipline page 98 lists important elements that should be
included in a disciplinary action report.
Class Activity: Tips for Success – Are You Part of the Problem? Page 97 Symptoms
that a manager has let discipline get out of hand and suggestions for ways to take it back.
Students may have suggestions for ways to regain managerial authority.
Dismissing or Firing Employees, the Final Option Slide 34
Learning Outcome 7: Identify important procedures to follow when firing an employee.
In spite of management’s best efforts, employees must occasionally be fired.
Reasons for firing employees include:
Layoffs and restructuring
Performance problems
The last step in the progressive discipline process
Serious disciplinary actions such as sexual harassment, theft, violence,
plagiarism, sabotage.
Not firing underperforming or insubordinate employees can cause morale and
productivity problems.
Dismissal
The difficulty of firing employees often means that managers do it awkwardly.
Because of the serious impact on employees and the growing number of wrongful
discharge law suits, a dismissal decision should be carefully considered.
When firing an employee:
Review all of the facts.
Set the stage.
Be very clear.
Allow a little dignity.
Let the employee talk.
Give severance pay.
Ask the person to sign an agreement waiving the right to sue for wrongful
termination.
Immediately pay for any earned time.
Have the person leave that day.
Inform the person of any benefits.
Take appropriate protective steps.
Tell other employees that the employee has been terminated.
Employee Relations in a Global Environment Slide 35
Learning Outcome 8: Explain how issues of employee relations differ in global
environments.
Employment-at-will isn’t a global concept.
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Chapter 4: Employee Rights and Discipline
Most countries give employees significant rights to hold jobs.
Firing can be very difficult.
Unions
Strong influence in European countries.
In China, membership is high but influence is weak.
Paid-time-off Slide 36
Most industrialized countries provide paid maternity leave.
Most require some paid leave for all workers. Examples:
France 30 days
United Kingdom 28 days
Japan 10 days
United States 0 days
HRM Workshop
The HRM Workshop includes several different types of activities requiring students to apply
chapter concepts aligned with the learning objectives. Suggested answers are provided.
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