Chapter 15: Employee Rights and Responsibilities
Chapter 15
Employee Rights and Responsibilities
Learning Objectives
After students have read this chapter, they should be able to:
• Define employment-at-will and discuss how wrongful discharge, just cause, and due
process are interrelated.
• Identify employee rights associated with free speech and access to employee records
Chapter Overview
This chapter presents three related and important issues in the management of human
resources:
• Employee rights
• HR policies
• Employee discipline
Chapter 15: Employee Rights and Responsibilities
promote whomever they choose unless there is a law or contract to the contrary. However,
in recent years there have been three significant challenges to EAW doctrine:
• Public policy exception
• Implied contract exception
• Good faith and fair-dealing exception
HR policies, procedures, and rules are described. Policies are general guidelines that
regulate organizational actions while rules are more specific, regulating and restricting the
behavior of individuals. Procedures are customary methods of handling activities. How
these policies, procedures and rules are communicated to employees is crucial.
Chapter Outline
Chapter 15: Employee Rights and Responsibilities
I. Employer and Employee Rights and Responsibilities
Rights generally do not exist in the abstract. Instead, rights are powers, privileges, or
interests derived from law, nature, or tradition. Of course, defining a right presents
considerable potential for disagreement.
A. Contractual Rights
When individuals become employees, they are likely to encounter both employment
rights and responsibilities. Those items can be spelled out formally in written
employment contracts or in employer handbooks and policies disseminated to
HR Headline: Supervising Problem Workers with Personality Disorders
All managers deal with problem employees during their careers. These individuals
operate in counterproductive ways, such as relating poorly with managers,
disagreeing with colleagues, being selfish, believing others are out to get them,
being inflexible in the face of change, misinterpreting workplace communication,
and using intimidation/threats.
’
Chapter 15: Employee Rights and Responsibilities
employees. Contracts formalize the employment relationship. An employee’s
contractual rights are based on a specific contract with an employer.
Employment Contracts
An employment contract is a formal agreement that outlines the details of
employment. Depending on the organization and individuals involved, employment
agreements often contain many provisions that detail the nature of the exchanges that
are expected to occur between companies and employees.
Noncompete Agreements
Employment contracts may include noncompete agreements, which prohibit
individuals who leave an organization from working with an employer in the same
line of business for a specified period of time. A noncompete agreement may be
presented as a separate contract or as a clause in an employment contract. Court
decisions have ruled both for and against employers that have fired employees who
either have refused to sign noncompete agreements or have violated them.
Chapter 15: Employee Rights and Responsibilities
Intellectual Property
An additional area covered in employment contracts is protection of intellectual
property and trade secrets. A 1996 federal law made the theft of trade secrets a
Implied Contracts
The idea that a contract (even an implied or unwritten one) exists between
individuals and their employers affects the employment relationship. The rights and
responsibilities of the employee may exist only as unwritten employer expectations
about what is acceptable behavior or performance on the part of the employee. Some
court decisions have held that if an employer hires someone for an indefinite period
or promises job security, the employer has created an implied contract.
II. Rights Affecting the Employment Relationship
As employees have increasingly regarded themselves as free agents in the workplace and
as the power of unions has changed in the United States, the struggle between individual
Chapter 15: Employee Rights and Responsibilities
discharge, just cause, due process, and distributive and procedural justice.
A. Employment-at-Will (EAW)
Employment-at-will (EAW) is a common-law doctrine stating that employers have the
right to hire, fire, demote, or promote whomever they choose, unless there is a law or a
contract to the contrary. Conversely, employees can quit whenever they want and go to
another job.
EAW and the Courts
The courts have recognized rationales for hearing EAW cases. The three key ones
are as follows:
• Public policy exception—this exception to EAW holds that employees can sue
if fired for a reason that violates public policy. For example, if an employee
Wrongful Discharge
Employers who run afoul of EAW restrictions may be guilty of wrongful discharge,
which is the termination of an individual’s employment for reasons that are illegal or
Chapter 15: Employee Rights and Responsibilities
Constructive Discharge
Closely related to wrongful discharge is constructive discharge, which is
deliberately making conditions intolerable to get an employee to quit. Under normal
HR Skills and Applications: Stopping Wrongful Discharge Claims
The EAW doctrine has long been recognized as a key component of the
employment relationships that exist between employers and employees in many
states. This working relationship operates under the assumption that individuals
and their firms can simply “go their separate ways” at any time they wish, with or
without reason. There are cases when exceptions to EAW can be invoked, such as
when employment contracts are broken, employees act in good faith while
performing work, companies abuse their power, or societal expectations are
violated.
The following steps can be implemented to help organizations better manage
employee terminations and avoid claims of wrongful discharge:
Step 1: Get Ready
• Discuss EAW with employees through regular channels in the organization.
Step 2: Get Set
• Be sure to document all performance-related issues so that a paper trail is
established.
Step 3: Go
• Make sure documentation has been adequately compiled and is organized in a
way to give proper feedback.
•
Chapter 15: Employee Rights and Responsibilities
B. Just Cause
Just cause is reasonable justification for taking employment-related action. The need
for a “good reason” for disciplinary actions such as dismissal usually can be found in
union contracts, but not in at-will situations.
C. Due Process
Due process, like just cause, is about fairness. Due process is the requirement that the
employer use a fair process to determine if there has been employee wrongdoing and
Organizational Justice
Individual perceptions of fairness or justice in the workplace depend on at least three
different types of assessments:
• First, people prefer favorable outcomes for themselves. They decide the
favorability of their outcomes by comparing them with the outcomes of others,
given their relative situations. This decision involves the concept of
Complaint Procedures and Due Process
Chapter 15: Employee Rights and Responsibilities
Procedures to deal with complaints are provided by employers to resolve employee
complaints or grievances. In most cases, the complaint procedures used to provide
due process for unionized employees differ from those for nonunion employees. For
unionized employees, due process usually refers to the right to use the formal
grievance procedure specified in the union contract.
D. Work-Related Alternative Dispute Resolution (ADR)
Disputes between management and employees over different work issues are normal
and inevitable, but how the parties resolve their disputes can become important. Open-
door policies, formal grievance procedures, and lawsuits provide several resolution
methods. However, companies are looking to alternative means of settlement.
Dissatisfaction with expenses, delays in the court system when lawsuits are filed, and
damages to employer-employee relationships have prompted growth in alternative
dispute resolution (ADR) methods such as arbitration, peer review panels, ombuds and
mediation.
Arbitration
Chapter 15: Employee Rights and Responsibilities
Peer Review Panels
Some employers allow their employees to appeal disciplinary actions to an internal
committee of employees. This panel reviews the actions and makes
recommendations or decisions. Peer review panels use fellow employees and a few
managers to resolve employment disputes. These panels have several advantages
including reducing lawsuits, provision of due process, lower costs, and management
and employee development.
Ombuds
HR Perspective: Arbitration Used in Sexual Harassment Cases
Sexual harassment has been a recurring problem in organizations for many years,
despite the many attempts to educate employees and proactively develop policies
that dissuade individuals from acting unprofessionally on the job. Firms have
invested many millions of dollars in training and seminars to better inform
workers about the different types of sexual harassment, and many companies and
lawyers specialize in how to handle cases once they have occurred. Unfortunately,
these efforts have only partially reduced the frequency of sexual harassment cases.
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Chapter 15: Employee Rights and Responsibilities
Mediation
Ombuds, as well as other individuals and groups who oversee dispute cases, will
III. Managing Individual Employee and Employer Rights Issues
Employees who join organizations in the United States bring with them certain rights,
including freedom of speech, due process, and protection against unreasonable search and
seizure. Although the U.S. Constitution grants these and other rights to citizens, over the
years, laws and court decisions have identified limits on them in the workplace. Globally,
laws and policies vary, which means more issues for employers with expatriates and local
workers in different countries.
A. Privacy Rights and Employee Records
As a result of concerns about protecting individual privacy rights in the United States,
the Privacy Act of 1974 was passed. It includes provisions affecting HR recordkeeping
systems. This law applies only to federal agencies and to organizations supplying
services to the federal government.
Employee Medical Records
Chapter 15: Employee Rights and Responsibilities
As interpreted by attorneys and HR practitioners, this provision requires that all
medical-related information be maintained separately from all other confidential
files. The Health Insurance Portability and Accountability Act also contains
regulations designed to protect the privacy of employee medical records. Both
regular and confidential electronic files must be considered.
Security of Employee Records
It is important to establish access restrictions and security procedures for employee
records. These restrictions and procedures are designed to protect the privacy of
A legal regulation called the Data Protection Act requires employers to keep
personnel records up-to-date and to keep only the details that are needed. The
following guidelines are offered regarding employer access and storage of employee
records:
• Restrict access to records to a limited number of individuals.
Electronic Records
Another concern is how electronic records are maintained and secured, given the
changes in software, e-mail, and other technology means. Estimates are that more
B. Employees’ Free Speech Rights
The right of individuals to freedom of speech is protected by the U.S. Constitution.
However, that freedom is not an unrestricted one in the workplace, so employees and
Chapter 15: Employee Rights and Responsibilities
companies need to be aware of appropriate boundaries. Three situations in which
employees’ freedom of speech might be restricted include expressing controversial
views, whistle blowing, and using the Internet and other communication-based
technology.
Employee Advocacy of Controversial Views
Questions of free speech arise over the right of employees to advocate controversial
viewpoints at work. Employers must follow due process procedures and demonstrate
that disciplinary actions taken against employees can be justified by job-related
Whistle Blowing and Employee Protection
Individuals who report real or perceived wrongs committed by their employers are
called whistle blowers. Whistle blowers are less likely to lose their jobs in public
employment than in private employment because most civil service systems follow
rules protecting whistle blowers. A U.S. federal amendment said that for private
employers to receive federal stimulus funding, they must have the same whistle-
blowing regulations as the federal government.
Chapter 15: Employee Rights and Responsibilities
• When do employees violate the confidentiality of their jobs by speaking out?
C. Technology and Employer-Employee Issues
The extensive growth of technology use by employers and employees is constantly
creating new issues to be addressed.
HR Perspective: Ethical HR Issues on Blogs
“Blogs,” or Web logs, provide an easy way for people to post opinions or views on
any subject—including work, the boss, the company, company products, and
people at work. Blogs also may be created by outsiders, and both positive and
negative publicity can be submitted. Another major use of blogs for employers is
providing information to employees about activities, policies, and practices within
the organization.
Chapter 15: Employee Rights and Responsibilities
Monitoring Electronic Communications
The use of email has become a major employer issue regarding employee and
workplace privacy. Employers have good reason to monitor what is said and
transmitted through their Internet and voicemail systems, despite employees’
HR Policies on Electronic Communications
Given all the time and effort employees spend on technology through both work and
personal actions, it is important for HR professionals to provide guidance to
HR Online: Ethical HR Issues on Blogs
Blogs, or Web logs, provide an easy way for people to post opinions or views on
any subject—including work, the boss, the company, company products, and
people at work. Blogs also may be created by outsiders, and both positive and
negative publicity can be submitted. Another major use of blogs for employers is
providing information to employees about activities, policies, and practices within
the organization.
Chapter 15: Employee Rights and Responsibilities
monitoring is needed, the methods used, and the amount of monitoring planned.
Employees should also sign off indicating that they understand their purpose and
accused of aiding and abetting illegal behavior.
D. Employee Rights and Personal Behavior Issues
Another area to which employers must give attention is employee personal behavior.
Personal behavior on or off the job can be at issue.
Reviewing Unusual Behavior
Employers may decide to review unusual behavior by employees both on and off the
job. Organizations and HR must deal with actions such as employees or managers
Dress and Body Appearance Limitations
Employers have put limits on employees’ dress and appearance in some situations,
Off-Duty Behavior
Chapter 15: Employee Rights and Responsibilities
An additional employee rights issue concerns personal behavior off the job.
Employers encounter special difficulty in establishing “just cause” for disciplining
IV. Balancing Employer Security and Employee Rights
Balancing employer and employee rights is difficult. On one side, employers have a
legitimate need to ensure that employees are performing their jobs properly in a secure
environment. On the other side, employees expect the rights that they have both at work
Chapter 15: Employee Rights and Responsibilities
and away from work to be protected. The commonplace monitoring of e-mail and
voicemail is only one way employers watch the workplace.
A. Workplace Monitoring
In the United States, the right of protection from unreasonable search and seizure only
Conducting Video Surveillance at Work
Numerous employers have installed video surveillance systems in workplaces. Some
employers use these systems to ensure employee security, such as in parking lots,
Monitoring Employee Performance
Employee activity may be monitored to measure performance, ensure performance
quality and customer service, check for theft, or enforce company rules or laws. The
B. Employer Investigations
Another area of concern regarding employee rights involves workplace investigations.
The U.S. Constitution protects public-sector employees in the areas of due process,