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560 PART 5 Enhancing Employee-Management Relations
I
n this chapter, we discuss the rights of employees, the privacy they can expect in
the workplace, and employee discipline. According to Robert J. Deeny, an employ-
ment attorney, employee rights and workplace privacy continue to be the “hottest
and expanding employment law topics into the twenty-first century.”1 Drug testing; the
privacy of employees when they use the Internet, visit social networking sites, and send
out Twitter messages; and camera surveillance in the workplace are among the topics
routinely being debated today. Other employee-rights-related topics making their way
into the debate are the use of radio frequency identification (RFID), global positioning
systems, biometric technology, and company-provided cell phones to track and locate
employees.
Without a doubt, the advance of technology and the tools it offers is blurring the lines
between the personal freedom and privacy rights of workers and their employers to moni-
tor and control their activities.2 But despite the confusion, organizations and managers
still need to have an idea of where the lines lay so they do not inadvertently cross them.
This is where HR managers play a crucial role. To be effective they must stay abreast of
current laws, agency regulations, and court rulings, establish written employment poli-
cies based on this information, and educate the staff members in their organizations
about them. This is not that difficult, but it takes dedication. It also sets good HR man-
agers apart from the pack.
Disciplining and discharging employees is another area in which HR managers need to
help develop clear policies for their organizations. In one discharge case, General Electric
was ordered to pay Hemant K. Mody, a long-time engineer, $11.1 million, including $10
million for punitive damages. The jury concluded that the discharge was improper since
Mody had been fired in retaliation for complaining about bias.3 Because disciplinary ac-
tions can be challenged and possibly reversed through government agencies or the courts,
also included in this chapter is a discussion of alternative dispute resolution techniques
as a way to settle differences between employees and their employers. Finally, because
ethics is an important element of organizational justice, the chapter concludes with a
discussion of organizational ethics in employee relations.
Employee Rights and Privacy

employee rights Employee rights can be defined as the guarantees of fair treatment that workers expect
Guarantees of fair treatment in return for their services to an employer. These expectations become rights when
that become rights when they are granted to employees by the courts, legislatures, or employers. Over the course
they are granted to employ-
ees by the courts, legisla- of the last 50 or so years, various antidiscrimination laws, wage and hour statutes, and
tures, or employers safety and health legislation have secured basic employee rights and brought numerous
job improvements to the workers in the United States. Included among those rights
are the rights of employees to protest unfair disciplinary actions, to question genetic
testing, to have access to their personal files, to challenge employer searches and moni-
toring, and to be largely free from employer discipline for off-duty conduct.4
The evolution of employee rights is a natural result of the evolution of societal,
business, and employee interests.5 We have already explained that workplace-privacy
issues have received a great deal of attention lately. For example, employees may feel
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CHAPTER 13 Employee Rights and Discipline 561
they have an expectation of privacy regarding their personal phone calls made from
work phones, their e-mail messages sent from computers in the workplace, or free-
dom from employers’ random searches of their personal belongings. However, as one
legal commentator notes, “When employers clearly state that there is no expectation
of privacy, it’s hard to argue that a reasonable person could have such an expecta-
tion.” Legal scholars recognize that the protection of employee privacy rights extends
only so far; federal and state courts generally view the privacy rights of employees
as minimal.
For example, consider the issue of camera surveillance. Generally it is legal to install
cameras in the workplace (except for installations in bathrooms and locker rooms),
as long as employees are informed about them. However, after pornography was dis-
covered on one of its computers, a California children’s home for abused children in-
stalled hidden surveillance cameras in an office shared by two employees. The person
who had accessed the pornography was never caught. However, the two employees
who shared the office later discovered the camera and were upset they were being
monitored. They claimed their privacy rights had been violated, but the Supreme
Court of California ruled against them, saying that their employer had a legitimate
business reason for conducting the surveillance.6
Employee Rights vs. Employer Responsibilities

Balanced against employee rights is the employer’s responsibility to provide a safe Learning Outcome 1
workplace for employees while guaranteeing safe, quality goods and services to con- Are the rights you have
sumers.7 An employee who uses drugs may exercise his or her privacy right and re- as a citizen of the
fuse to submit to a drug test. But should that employee produce a faulty product as United States the same
a result of drug impairment, the employer can be held liable for any harm caused by as the rights you have
that product. Employers must therefore exercise reasonable care in the hiring, training, as an employee? Why
and assignment of employees to jobs.8 or why not?
It is here that employee rights and employer responsibilities often come into con-
flict. When employers fail to honor the rights of employees, it can result in costly
lawsuits, damage the organization’s reputation, and hurt employee morale. But the
failure to protect the safety and welfare of employees or consumer interests can invite
litigation from both groups. In one case, the retailer Dillard’s was held accountable
for the “hostile propensities” of one of its sales clerks toward an African American
customer. The jury found that an employer can be held liable for the discriminatory
conduct of its salesperson.9
Negligent Hiring
In Chapter 6 we discussed negligent hiring. In law, negligence is the failure to use negligence
a reasonable amount of care when such failure results in injury to another person. The failure to provide reason-
A general responsibility exists for employers to exercise reasonable care in prevent- able care when such failure
results in injury to consum-
ing employees from intentionally harming other employees during the course of ers or other employees
their work.10
Unfortunately, when one employee commits a violent act against another employee
or an employee willfully defames another employee through e-mail messages com-
municated at work, the employer may face a negligent-hiring lawsuit claiming that
the employer should have used more reasonable care in the hiring of its employees.11
A negligent-hiring lawsuit can seem like a “Catch-22” for an employer. How is it pos-
sible for an employer to predict with certainty the future behavior of an individual
employee? Nonetheless, negligent-hiring lawsuits have forced managers to take extra

care in the employment and management of their workforces. In the remainder of
this section, we will discuss various rights employees have come to expect from their
employers.
Job Protection Rights

It is not surprising that employees should regard their jobs as a right that should not
be taken away without “just cause” (a good reason) for doing so. Without the oppor-
tunity to hold a job, the well-being of a person suffers greatly. However, although em-
ployees might believe they have a right to their jobs, there are no laws in the United
States guaranteeing them as much, as you will see shortly.
Nonetheless, workers have certain expectations about the employment rela-
tionships they have with their employers.12 This expectation is referred to as the
psychological psychological contract. It consists of an employer and an employee’s beliefs about
contract the mutual obligations they have towards one another.13 For example, in exchange for
Expectations of a fair their talents, energies, and technical skills, workers expect employers to provide fair
exchange of employment
obligations between an em-
compensation, steady work, job training, and promotions. Employees also expect to be
ployee and employer treated with dignity and their firms to adhere to sound business practices.14 Although
the psychological contract is not a legal mandate, it has led to the development of cer-
tain legal principles about the security of one’s job, which we will discuss next.
Employment-at-Will
Learning Outcome 2 The employment relationship has traditionally followed the common-law doctrine
Think about the jobs of employment-at-will. An employment-at-will relationship is created when an
you may have held or employee agrees to work for an employer for an unspecified period of time. Because
hold now. Were you (or the duration of the employment is indefinite, it can, in general, be terminated at the
are you) employed “at whim of either party. The employee has a right to sever the employment relationship
will”? How would you at any time for a better job opportunity or for other personal reasons. Employers,
know? likewise, are free to terminate the employment relationship at any time—and with-
out notice—for any reason, no reason, or even a bad reason. In essence, employees are
employment-at- said to work “at the will” of the employer.15 In 1908 the Supreme Court upheld the
will principle employment-at-will doctrine in Adair v. United States, and this principle continues to
The right of an employer to be the basic rule dominating the private-sector employment relationship.16
fire an employee without giv- Employees are often surprised when they learn about the employment-at-will doc-
ing a reason and the right of
an employee to quit when he
trine. To make them aware of it, most employers are careful to point out, in their
or she chooses written policies, in handbooks, and on job applications that their relationship with
their employees is an at-will relationship. Does the employment-at-will doctrine give
managers and supervisors the unrestricted right of termination? No.17 First, as we
have emphasized throughout this text, federal and state laws, court decisions, and
administrative rulings restrict termination decisions. For example, as you learned in
Chapter 3, people cannot be fired because of certain characteristics such as their race,
gender, and so forth. Second, in unionized organizations, union collective bargaining
agreements limit automatic discharges. These agreements specify the kinds of infrac-
tions that can lead to termination.
Not all employers operate on the at-will principle, however. Some have written pol-
icies that require good cause to terminate an employee. In any case, despite the at-will
doctrine, in today’s litigious environment, most employers are very cautious about
terminating employees. Barry Roseman, employment attorney, notes, “Employers
internally rather than externally. The policy should provide for the safeguard of employee
rights, a complete and unbiased investigation of the incident, a speedy report of findings,
and an appeals procedure for employees who are dissatisfied with company findings.26
Implied Contract
Although it is estimated that 80 percent of employees in the United States work with-
out benefit of an employment contract, under certain conditions these employees may
be granted contractual employment rights. This can occur when an implied promise
by the employer suggests some form of job security to the employee. These implied
contractual rights can be based on either oral or written statements made during the
preemployment process or subsequent to hiring. Often these promises are contained
in employee handbooks, HR manuals, or employment applications, or they are made
during the selection interview. For example, in Toussaint v. Blue Cross and Blue Shield of
Michigan, a court found that a provision in an employee handbook constituted a unilat-
eral enforceable contract with employees.27 Once these explicit or implicit promises of
job security have been made, courts have generally prohibited the employer from ter-
minating the employee without first exhausting the conditions of the contract. The fol-
lowing are some examples of how an implied contract may become binding:
■■ Telling employees their jobs are secure as long as they perform satisfactorily and
are loyal to the organization
■■ Stating in the employee handbook that employees will not be terminated without
the right of defense or access to an appeal procedure
■■ Urging an employee to leave another organization by promising higher wages and
benefits, then reneging on those promises after the person has been hired
Employers can lessen their vulnerability to implied contract lawsuits by prudent
managerial practices, training, and HR policies. HR experts recommend the follow-
ing approaches:
1. Training supervisors and managers not to imply contract benefits in conversations
with new or present employees.
2. Including in employment offers a statement that an employee may voluntarily ter-
minate his or her employment with proper notice and may be dismissed by the
employer at any time and for a justified reason. The language in this statement
must be appropriate, clear, and easily understood.
3. Including employment-at-will statements in all employment documents—for
example, employee handbooks, employment applications, and letters of employ-
ment.28 (See Highlights in HRM 1.)
4. Having written proof that employees have read and understood the employment-
at-will disclaimers provided to them.
Explicit Contracts
Explicit employment contracts are formal written (signed) agreements that grant
to employees and employers agreed-upon employment benefits and privileges. The
contracts normally state the period of employment, terms and conditions of employ-
ment (for example, salary and benefits), and severance provisions. Explicit contracts
are popular with executives, senior managers, and people with highly technical or
professional skills and abilities. When an employee has an explicit contract, he or she
cannot be dismissed at-will.
In today’s highly competitive environment, before hiring employees, employ-
ers sometimes impose certain restrictions, or provisions, in explicit contracts. The
most widely used restrictions are:
■■ Nondisclosure of information agreement. This provision forbids employees from reveal-
ing proprietary information outside the company, either during or following their em-
ployment. Courts widely enforce these agreements.
■■ Intellectual property agreement. This provision grants to an employer the ownership
of an idea, invention or process, or work of authorship developed by the employee
during the time of employment. Such an agreement expressly states that the
employer retains all rights, titles, and interests in ideas that are subject to patent
laws and developed during the employee’s period of hire.
■■ Noncompete agreement. This provision prevents ex-employees from either
becoming a competitor or working for a competitor for a designated period of time,
for example, one or two years.29 Noncompete agreements are designed to protect
confidential information, customer relations, and other valuable assets.30 However,
they are often challenged in courts. Some states, including California, Oklahoma,
Montana, and North Dakota, prohibit them. Other states, including Colorado,
only allow them for high-level employees such as executives and managers.31
■■ Nonpiracy agreements. These agreements prohibit ex-employees from soliciting clients
or customers of former employers for a specific period of time and from disclosing or
making use of confidential employer information. Because these agreements restrict
workers and competition to a lesser degree, courts have been more willing to uphold
them than noncompete agreements. Today, most legal experts suggest employers use
antipiracy agreements rather than noncompete agreements.
The Bratz-vs.-Barbie
doll war isn’t child’s
play. What’s the fight
about? Mattel says the
toy’s inventor, Carter
Bryant, designed the
doll when he was
working for Mattel, so
it should be a Mattel
product. Bryant says
he invented the toy
on his own time, and
when Mattel showed
no interest in the
product, he sold
PRNewsFoto/MGA Entertainment
the idea to rival

toymaker MGA.
overtly. For example, instead of simply terminating an employee, an employer might

deliberately impose upon the person working conditions that are so intolerable he or
she quits.33 By getting the employee to quit, the employer avoids having to pay the
person unemployment benefits or other compensation such as severance pay. But if
an employee can prove a constructive discharge occurred, he or she might be able to
remedy this situation. However, to prove a constructive discharge, the employee gen-
erally has to show that she gave the employer written notice that the conditions were
intolerable and that it did nothing to correct the conditions.
Discharge as a Result of Retaliation
Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, and other employment laws prohibit employers
from retaliating against employees when they exercise their rights under these stat-
utes (see Chapter 3). Employees may believe retaliation occurs when managers trans-
fer them to lower-rated jobs, deny them salary increases or promotions, impose on
them unrealistic job assignments, or become belligerent or uncommunicative with
them after they file discrimination complaints or receive a favorable settlement.34 As
we explained in Chapter 3, retaliation has become the most frequent EEO complaint.
As one attorney put it, many minor complaints raised by employees blow up into
costly lawsuits after firms make the mistake of retaliating against these workers.
To prevent retaliation charges, William Kandel, employer defense attorney, encour-
ages employers to implement a separate antiretaliation policy and to train managers and
supervisors in acceptable and unacceptable methods to resolve employee complaints.35
A key component to any antiretaliation policy is to treat employees with dignity and
respect. Other suggestions to reduce retaliation discharges include the following:
■■ Take no adverse employment action against employees when they file complaints.
Let them know you take their complaints seriously and are looking into them.
■■ Keep complaints confidential.
■■ Be consistent and objective in your treatment of employees. Evaluate employees on
how well they perform, not on their personalities.
■■ Harbor no animosity toward employees when they file discrimination lawsuits.
Treat every employee the way you would want to be treated—fairly.
Discharges and the WARN Act
The federal government, several states, and local jurisdictions have passed legislation
restricting the unilateral right of employers to close or relocate their facilities. In 1989,
Congress passed the Workers’ Adjustment Retraining and Notification Act (WARN),
which requires organizations with more than 100 employees to give employees and their
communities sixty days notice of any closure or layoff affecting fifty or more full-time
Learning Outcome 3 employees.36 Notice must be given to collective bargaining representatives, unrepresented
employees, the appropriate state dislocated worker agency, and the highest elected local
What are the privacy
official. Terminated employees must be notified individually in writing. The act allows for
settings on your
several exemptions, including “unforeseeable circumstances” and “faltering businesses.”
Facebook page? Do you
think your employer, or
prospective employer, Privacy Rights
should be allowed to According to Janis Procter-Murphy, employment attorney, “employee privacy is recog-
look at it? nized as one of the most significant workplace issues facing companies today.”37 The
right of privacy is the freedom from unwarranted government or business intrusion

into one’s personal affairs. It involves the individual’s right to be given personal auton-
omy and left alone.38 Not surprisingly, employees strongly defend their right to work-
place privacy. Meanwhile, employers defend their right to monitor employees’ activities
when they directly affect a business, its productivity, workplace safety, and/or morale.39
So who is right? Employers or employees? Laws and court cases related to workplace
privacy generally attempt to balance an employee’s legitimate expectation of privacy
against the employer’s need to supervise and control the efficient operation of the or-
ganization. In this section, we will discuss some of the most pressing privacy issues
being debated by employees and employers today and how they are being resolved.
Substance Abuse and Drug Testing

As you learned, in the United States companies can legally test workers for drugs. But
can they do so under any and all circumstances? The answer is no. Certain restrictions
apply. In the private sector, drug testing is largely regulated by individual states. Pro–
drug testing states generally permit testing, provided that strict testing procedures are
followed. States such as these sometimes offer employers a discount on their workers’
compensation insurance premiums if they take certain steps to maintain a drug-free
workplace, which may include testing job applicants. 40 By contrast, states with re-
strictive drug testing laws generally prohibit testing for drugs except in very specific
circumstances and for drugs listed in state regulations.41
Federal regulations and laws restrict drug testing as well. Recall from Chapter 3 that
the EEOC does not allow job applicants to be tested before they are extended offers. The
Americans with Disabilities Act protects employees who have been addicted to drugs
and are recovering from them. And some drugs that would otherwise be illegal, such as
opiates and medical marijuana, are legitimately prescribed for certain conditions.42
Safety Sensitive Positions. Drug testing is most prevalent among employees in sensi-
tive positions within the public sector, in organizations doing business with the federal
government, and in public and private transportation companies. Since the passage of
the Drug-Free Workplace Act of 1988, applicants and employees of federal contractors
have become subject to testing for illegal drug use. Barring state and federal laws that
restrict or prohibit drug testing, however, private employers generally have a right to
require employees to submit to the tests. The exception is unionized workforces. Drug-
testing programs for these employees must be negotiated by their unions.
Criticisms of Drug Testing. In Chapter 6, we explained that some recent studies have
failed to show that drug testing makes the workplace safer and that alcohol appears to
create more problems than drugs.43 Another criticism of drug tests, including urinalysis
and hair tests, is that they do not reveal if a person is currently under the influence of a
drug. Illegal substances remain in urine for various periods of time: cocaine for approxi-
mately 72 hours, marijuana for three weeks or longer.44 Therefore, an employee can test
positive for a drug days or weeks after using it but not be impaired on the job. Alcohol
will not show up in a urinalysis or hair test. For that, a breathalyzer, blood, or saliva test
must be used. The question becomes, which test should an employer use?
Organizations also have to ensure that any samples taken from employees are
properly handled and that accredited labs are used to test them. The results of the
tests must be kept confidential and provided only to those who need to know—
for example, supervisors or HR staff members—and not to other coworkers or
Electronic Surveillance
Why do companies use surveillance and other technology to watch what their employ-
ees do? One reason is employee theft, such as the stealing of merchandise, supplies, or
equipment, the selling of information such as customer lists and trade secrets, embez-
zlement, and so on.45 Monitoring quality control, ensuring the safety of employees, and
eliminating the amount of time they spend surfing the Web and doing personal busi-
ness on company time are other reasons. 46 Next, let us look at some of the most com-
mon methods of surveillance, and the employer-employee rights associated with them.
Camera Surveillance
DuPont uses long-distance cameras to watch employees on its loading docks. The
Cheesecake Factory, a restaurant chain, uses video surveillance of kitchens, dining
rooms, and hostess stations to monitor how workers treat customers and each other.
Most high-end hotels have cameras in their facilities to protect both workers and
guests. Employers also install cameras in their parking lots and remote workplace ar-
eas to help improve safety. Few federal laws protect workers from being watched. As
we explained earlier in the chapter, in general, employers can train video cameras on
their employees without significant legal concerns as long as they have a legitimate
business reason for doing so and inform employees they are doing as much. States,
however, set their own regulations.
Employers are not the only ones with cameras, though. You might be surprised to
know that employees’ cameras have become a new issue firms are dealing with. In just
a few seconds, a coworker with a camera phone can take offensive pictures of his or
her coworkers in private or embarrassing situations and disseminate them around
the world via the Web. 47 A few years ago, Domino’s Pizza workers posted a YouTube
video of themselves doing vulgar things to customers’ pizzas in one of the restaurant’s
kitchens. The workers were later fired, but Domino’s suffered a serious PR disaster
that took a toll on its reputation and revenues.
Small cameras and camera phones can also be used to quickly and efficiently con-
duct industrial espionage and steal a company’s patents and trade secrets. As a result,
some employers ban the use of these devices in the workplace unless employees are
given special permission to use them. Workers in Apple’s testing rooms are required
to cover up devices with black cloaks when they are working on them so the company
can be assured no “rogue” cameras are being used to take pictures of the products.48
Phone Conversations and Text Communications
In general, employers have the right to monitor calls and text messages sent from their
telecommunications devices, provided they do so for compelling business reasons and
employees have been informed that their communications will be monitored. How-
ever, a federal law, the Electronic Communications Privacy Act (ECPA), places some
limitations on that right.49 The ECPA restricts employers from intercepting wire,
oral, or electronic communications. For example, under the law, if an employee re-
ceives a personal call, the employer must hang up as soon as he or she realizes the call
is personal. However, if employees are told not to make personal calls or send text
messages from their business phones, the ECPA no longer applies, and their commu-
nications may be monitored.
E-Mail, Internet, and Computer Use
Many employees are unaware that their employers can monitor what they do online
and fire or discipline them based on that information.50 According to a recent report
A Sample Electronic Communications Policy (continued)
•• Destroying, deleting, erasing, or concealing company files or other company data, or otherwise making such files or
data unavailable or inaccessible to the company or to other authorized users of company systems;
•• Misrepresenting oneself or the company;
•• Engaging in unlawful or malicious activities;
•• Deliberately propagating any virus, worm, Trojan horse, trap-door program code, or other code or file designed to
disrupt, disable, impair, or otherwise harm either the company’s networks or systems or those of any other indi-
vidual or entity;
•• Using abusive, profane, threatening, racist, sexist, or otherwise objectionable language in either public or private
messages;
•• Sending, receiving, or accessing pornographic materials;
•• Becoming involved in partisan politics;
•• Causing congestion, disruption, disablement, alteration, or impairment of company networks or systems;
•• Using recreational games
Policy Statement for Internet/Intranet Browser(s)

The Internet is to be used to further the company’s mission, to provide effective service of the highest quality to the
company’s customers and staff, and to support other direct job-related purposes. Supervisors should work with em-
ployees to determine the appropriateness of using the Internet for professional activities and career development. The
various modes of Internet/Intranet access are company resources and are provided as business tools to employees who
may use them for research, professional development, and work-related communications. Limited personal use of In-
ternet resources is a special exception to the general prohibition against the personal use of computer equipment and
software. Employees are individually liable for any and all damages incurred as a result of violating company security
policy, copyright, and licensing agreements.
Personal Electronic Equipment

The company prohibits the use or possession in the workplace of any type of camera phone, cell phone camera, digital
camera, video camera, or other form of image- or voice-recording device without the express permission of the com-
pany and of each person whose image and/or voice is/are recorded. Employees with such devices should leave them
at home unless expressly permitted by the company to do otherwise. This provision does not apply to designated com-
pany personnel who must use such devices in connection with their positions of employment.
Employees should not bring personal computers or data storage devices (such as floppy disks, CDs/DVDs, external
hard drives, flash drives, iPods, or other data storage media) to the workplace or connect them to company electronic
systems unless expressly permitted to do so by the company. Any employee bringing a personal computing device, data
storage device, or image-recording device onto company premises thereby gives permission to the company to inspect
the personal computer, data storage device, or image-recording device at any time with personnel of the company’s
choosing and to analyze any files, other data, or data storage devices or media that may be within or connectable to
the personal computer or image-recording device in question. Employees who do not wish such inspections to be done
on their personal computers, data storage devices, or imaging devices should not bring such items to work at all.
Source: Excerpted from “Employee Rights and Identity Theft,” Texas Workforce Commission, accessed June 2, 2011, http://www.twc.state.tx.us.
cases in which off-duty criminal misconduct (such as child molestation) creates a dis-
ruptive impact on the workplace. Another example might be when the public nature
of the employee’s job (such as police or fire department personnel) creates an image
problem for the organization. However, before banning specific off-duty behavioral
conduct, employers are advised to obtain legal advice.
Off-Duty Employee Speech

Some organizations have social networking and blogging policies that restrict em-
ployees from making disparaging remarks about their firms or its supervisors, or oth-
erwise casting their organizations in a bad light. You might wonder how this is legal
in light of the free speech rights granted by the First Amendment. What you may
not be aware of is that the First Amendment prohibits the government—not private
employers—from telling us what we can and cannot say.
However, like off-duty conduct, state laws and courts have tried to balance the
rights of employees with those of their employers in this regard. For example, if an
employee-blogger lives in a state in which off-duty conduct is protected, he or she
might be protected by the law. If his or her comments relate to illegal labor prac-
tices and work conditions, the comments would probably be protected under whistle-
blower provisions. 58 In addition, the National Labor Relations Act, which allows
workers to form unions, protects the rights of employees to talk to one another about
their working conditions. In a landmark case, the National Labor Relations Board
filed a complaint against an ambulance company for firing a Connecticut woman who
posted on her Facebook page a negative remark about her supervisor. The company
later settled the case and agreed to revise its policies so they do not restrict employees
from discussing their employment outside of work.59
As you can tell from this discussion, employers who are thinking about disciplining
or firing an employee for off-the-job speech should seek legal advice before doing so.
Meanwhile, employees need to realize that what they say online can put their employ-
ers in an awkward situation to which they are going to feel compelled to respond.
Moreover, online posts that are racist, sexist, demean or harass one’s coworkers, and
reveal confidential company information are not likely to be legally protected. They
can also be career enders for employees.
Workplace Romances
Workplace romances create a dilemma for organizations. Acceptable behavior in a
consensual relationship between employees can become harassing behavior if one
party to the relationship no longer welcomes the conduct, and it may result in violence
should a scorned lover seek violent revenge at the work site. Of particular concern is an
employer’s liability if a coworker, supervisor-subordinate, or other power-differentiated
romance goes sour and leads to charges of sexual harassment.60 A supervisor in a roman-
tic relationship with a subordinate becomes immediately vulnerable to a sexual harass-
ment claim, as does his or her employer. Furthermore, workplace romances can lead
to employee charges of favoritism against a coworker involved in a supervisor-
subordinate romance. These “reverse harassment” claims are based on preferential
treatment given an employee engaged in a romantic affair. Workplace romances can
also create morale problems when other employees feel unfairly treated; such situa-
tions can lead to jealousy, resentment, and hard feelings.61
As we mentioned in Chapter 3, although some companies have strict antifrater-
nization policies, such a policy can lead to lawsuits. However, recall that the rights of
companies to control the legal, off-duty conduct of their employees are limited. Sexual
6. The consequences of failing to make the improvements by a certain follow-up

date
7. The employee’s reaction to the supervisor’s attempt to change his or her behavior
8. The names of witnesses to the incident (if applicable)
To ensure that the documentation is as accurate as possible, a manager should re-
cord the previous eight items immediately after an incident takes place while it is still
fresh in his or her mind.
The Investigative Interview

Before any disciplinary action is initiated, an investigative interview should be con-
ducted to make sure the employee is fully aware of the organization’s rules and that he
or she has not followed them.70 The interview should concentrate on how the offense
violated the performance and behavior standards expected. Most important, the em-
ployee must be given a full opportunity to explain his or her side of the issue so that
any deficiencies for which the organization may be responsible are revealed. Giving
the employee an opportunity to explain his or her side is also necessary because the
supervisor’s perceptions of the employee’s behavior may not be entirely accurate.71
Employees do not have the right to have an attorney present during an investigative
interview. However, in NLRB v. Weingarten, Inc., the Supreme Court upheld a Na-
tional Labor Relations Board ruling in favor of a unionized employee’s right to have
a union representative with him or her during an investigative interview—if the em-
ployee reasonably believes that discipline could result from the interview.72 Within
the past twenty-five years, the National Labor Relations Board has flip-flopped four
times on whether nonunion employees enjoy Weingarten rights. Currently, nonunion
employees do not have the right to have a coworker present in an investigatory inter-
view that may lead to disciplinary action.
Approaches to Disciplinary Action

Assuming a thorough investigation shows that an employee has violated a rule, a firm Learning Outcome 6
can take one of two approaches to disciplinary action: progressive discipline and posi- Why do you think su-
tive discipline. pervisors often verbally
warn employees first
Progressive Discipline before disciplining
Progressive discipline is the application of corrective measures by increasing degrees. them? Do they need to?
Progressive discipline is designed to motivate an employee to correct his or her mis- Are there any profes-
conduct voluntarily. The technique is aimed at nipping the problem in the bud, using sions in which verbal
only enough corrective action to remedy the shortcoming. Because each situation is warnings are skipped?
unique, a number of factors must be considered in determining how severe a disci-
plinary action should be. Some of the factors to consider were listed in Figure 13.8. progressive
The typical progressive discipline procedure includes four steps. From an oral warn- discipline
ing (or counseling), the action may progress to a written warning, to a suspension The application of correc-
tive measures by increasing
without pay, and ultimately to discharge only as a last resort. When progressive disci- degrees
pline is applied properly:
1. Employees always know where they stand regarding offenses.
2. Employees know what improvement is expected of them.
3. Employees understand what will happen next if improvement is not made.
Positive Discipline
Some HR professionals believe that the intimidating and adversarial nature of pro-
gressive discipline keeps it from achieving the intended purpose. For these reasons, or-
ganizations such as Saint Alphonsus Regional Medical Center, Ocean Spray, Banner
Health, Pennzoil, and Bay Area Rapid Transit have instead used an approach called
positive, positive, or nonpunitive, discipline. Positive discipline is based on the concept that
or nonpunitive, employees must assume responsibility for their personal conduct, job performance,
discipline and careers.73
A system of discipline that Positive discipline requires a cooperative environment in which the employee and
focuses on early correction
of employee misconduct, the supervisor engage in a joint discussion to agree on a way to resolve the per-
with the employee taking formance issue. The employee then bears the sole responsibility of implementing
total responsibility for cor- the solution. Rather than reprimands, the supervisor provides the employee with
recting the problem
reminders to improve his or her performance. HR managers often describe posi-
tive discipline as “nonpunitive discipline that replaces threats and punishment with
encouragement.”
Positive discipline is implemented in three steps. The first is the conference be-
tween the employee and the supervisor to find a solution to the problem. Stephen
Meyer, the CEO and director of learning and development at the Rapid Learning
Institute, a business training company, suggests supervisors position themselves as
“career advocates.” They should frame the conversation in terms of the person’s career
with the company and explain that they want to help the employee change the short-
term behavior that could jeopardize his or her career. Supervisors can document this
conference, but a written record of this meeting is not placed in the employee’s file
unless the misconduct occurs again.
If improvement does not occur after the first step, the supervisor holds a second
conference with the employee to determine why the solution agreed to in the first
conference did not work. At this stage, however, a written reminder is given to the
employee. This document states the new or repeated solution to the problem, with an
affirmation that the improvement is the responsibility of the employee and a condi-
tion of his or her continued employment.
When both conferences fail to produce the desired results, the third step is to give
the employee a one-day decision-making leave (a paid leave). The purpose of this paid
leave is for the employee to decide whether he or she wishes to continue working
for the organization. The organization pays for the leave to demonstrate its desire to
retain the person. Also, paying for the leave eliminates the negative financial effects
and emotions the employee experiences when losing a day’s pay. Employees given a
decision-making leave are instructed to return the following day with a decision either
to make a total commitment to improve their performance or to quit the organization.
If a commitment is not made, the employee is dismissed with the assumption that he
or she lacked responsibility toward the organization.
Discharging Employees
Because discharging a worker poses serious consequences for the employee—and
possibly for the organization—it should be undertaken only after a deliberate and
thoughtful review of the situation.74 If an employee is fired, he or she may file a
wrongful discharge suit claiming the termination was “without just or sufficient
cause,” implying a lack of fair treatment by management.
How does an employer know if it has just cause to terminate an employee? This
question is not easily answered, but standards governing discharges do exist in the
4. Do not mix the good with the bad. Trying to sugarcoat the problem sends a mixed
message to the employee.
5. Avoid making accusations against the employee and injecting your personal feel-
ings into the discussion.
6. Avoid bringing up any personality differences between you and the employee.
7. Provide the employee with any severance pay information, and let the person know
about the status of his or benefits and coverage.
8. Explain how you will handle employment inquiries from future employers looking
to hire the person.78
Termination meetings should be held in a neutral location, such as a conference
room, to prevent the employee from feeling unfairly treated. The manager should
never provoke the employee. Should the employee become belligerent, agitated, or
show signs of hostility, the meeting should be stopped immediately and the firm’s HR
department and security notified.
It is common for managers or security officers to accompany employees back to
their work areas to collect their belongings and then escort them off the premises.
However, this should be done as discreetly as possible to lessen any embarrassment
the employee may experience.
A manager who terminates an employee should keep the details of the termina-
tion private and not disparage the person when to talking to other people, including
other managers, customers, and the person’s former coworkers. Doing so might make
a manager feel better, but for the people who have to hear it, it is a morale killer.
Even worse, it gives the terminated employee grounds to sue the manager and firm
due process for defamation.
Procedures that constitute
fair treatment, such as al- Due Process
lowing an employee to tell Despite the at-will employment doctrine, most people believe that employees should
his or her story about an
alleged infraction and defend not be disciplined without the protection of due process. HR managers normally
against it define due process as the employee’s right to be heard—the right of the employee to
tell his or her side of the story regarding the alleged infraction of organizational rules.
alternative dispute Due process serves to ensure that a full and fair investigation of employee misconduct
resolution (ADR) occurs. Normally, due process is provided employees through the employer’s appeals
A term applied to different
employee complaint or dis-
procedure. Employers risk having their terminations overturned— even when they
pute resolution methods that are justified—when employees are denied due process.
do not involve going to court
Alternative Dispute Resolution Procedures

Learning Outcome 7 In unionized workplaces, grievance procedures are stated in virtually all labor agree-
What pros and cons do ments. In nonunion organizations, however, alternative dispute resolution (ADR)
you think employees methods are often used.79 Alternative dispute resolution methods address employee
who agree to settle discharges and complaints outside of court, which is generally faster and cheaper for
their grievances via al- both parties. Employers often ask workers to sign ADR agreements when they receive
ternative dispute reso- their offer letters or sign their employee handbooks.
lution methods face? Although the right to require employees to sign ADR agreements is supported by
court decisions, to be enforceable—they must be fair and equitable to both employees
and employers.80 Employers can’t “stack the deck” against employees by imposing
for final resolution. Organizations such as Northrop Grumman, Polaroid, Citicorp,

and Turner Brothers Trucking consider one of the benefits of the peer-review system
to be the sense of justice that it creates among employees.
Open-Door Policy
open-door policy The idea behind an open-door policy is that to facilitate communication and the
A policy of settling griev- free exchange of ideas, every manager’s office door should be open to every em-
ances that identifies various ployee. The policy is also an old standby method for settling employee complaints.
levels of management above
the immediate supervisor for In an organization that has such a policy, an employee is allowed to contact vari-
employee contact ous managers above his or her immediate supervisor for various reasons, includ-
ing grievances; the levels may extend as high as a vice president, president, or chief
executive officer. The person who acts as “the court of last resort” is the HR director
or a senior staff official.
There are some problems associated with open-door policies, however. One is
that some managers do not like to listen honestly to employee complaints. As an
employee once told the authors of this text, “My manager has an open-door policy,
but the door is only open one inch.” Because of this, employees are often reluctant to
approach managers with their problems. In addition, an open-door policy generally
fails to guarantee consistent decision making because what is fair to one manager
may seem unfair to another. Higher-level managers tend to support supervisors for
fear of undermining their authority, and as a system of justice, open-door policies
may lack credibility with employees. Still, the open-door policy is often successful
when it is supported by all levels of management and when management works to
maintain a reputation for being fair and open-minded. One way to make an open-
door policy work better is to ensure employees with grievances first try to work out
their problems with their immediate supervisors before contacting higher-up man-
agers. This way, the chain of command isn’t violated, and the supervisor of the em-
ployee who aired the grievance does not feel as if he or she was not given a chance to
resolve the issue.
Ombudsman System
Rockwell, Johnson & Johnson, Herman Miller, Eastman Kodak, and Pace University
ombudsman are just a few organizations that employ ombudsmen. An ombudsman is a desig-
A designated individual from nated individual from whom employees may seek counsel for the resolution of their
whom employees may seek complaints. The ombudsman listens to an employee’s complaint and attempts to re-
counsel for resolution of their
complaints solve it by seeking an equitable solution between the employee and the supervisor.
This individual works cooperatively with both sides to reach a settlement, often em-
ploying a problem-solving approach to the issue. As Gordon Halfacre, the ombuds-
man for faculty and graduate students at Clemson University, notes, “The ombuds is
an advocate for a fair process, not an advocate on behalf of individuals or the institu-
tion.” Because the ombudsman has no authority to finalize a solution to the problem,
compromises are highly possible, and all parties concerned tend to feel satisfied with
the outcome.
To function successfully, ombudsmen must be able to operate in an atmosphere of
confidentiality that does not threaten the security of the managers or subordinates
who are involved in a complaint. For example, complaints of sexual harassment, abuse
of power, or issues that deal with circumstances that violate the law or unethical be-
havior (whistle-blowing) require high d egrees of confidentiality to protect those in-
volved. While ombudsmen do not have the power to decide employee complaints,
Arbitration
Private employers may require that employees settle their disputes through arbitra-
tion.85 Arbitration, which is fully explained in Chapter 14, works like this: The em-
ployee and employer present their cases, or arguments, to an arbiter, who is typically
a retired judge. He or she then makes a decision that the parties have agreed to be
bound by. Arbitration is used primarily to resolve discrimination suits related to age,
gender, sexual harassment, and race.86 Other workplace issues such as promotions,
compensation, discipline, and application of company policies can be arbitrated if an
employer’s arbitration program allows it.
While arbitration agreements normally mandate that employees arbitrate their
discrimination claims and may prevent workers from suing their employers in court,
they cannot prohibit employees from filing discrimination charges with the EEOC
and other government agencies in an effort to pursue their statutory rights. In EEOC
v. Waffle House Inc.,87 the U.S. Supreme Court ruled that even when an employee
has signed a mandatory arbitration agreement, if it chooses to, the EEOC can file a
suit in its own name and recover monetary damages for the individual. Writing for
the court, Justice John Paul Stevens noted, “The EEOC has the authority to pursue
victim-specific relief regardless of the forum that the employer and the employee have
chosen to resolve their dispute.”88
Managerial Ethics in Employee Relations

Throughout this textbook, we have emphasized the legal requirements of HRM.
Learning Outcome 8 Laws, agency rulings, and court decisions affect all aspects of the employment
Name some companies process—recruitment, selection, performance appraisal, safety and health, labor rela-
you believe treat their tions, and testing—and how managers must heed these legal constraints to avoid
employees ethically litigation.
and some that do However, beyond what is required by the law is the question of organizational
not. Why do you think ethics and the ethical—or unethical—behavior engaged in by managers. Ethics can
the two groups differ be defined as a set of standards of acceptable conduct and moral judgment. Ethics
in this regard? Does provides cultural guidelines—organizational or societal—that help us decide be-
it depend upon the tween proper or improper conduct.89 How a firm treats its employees largely dis-
type of industry the tinguishes an ethical organization from an unethical one. In an ethical organization,
company competes in? managers are honest in their dealings with employees, and each group has mutual
respect for the other. Interestingly, a research study, Employee Trust and Organiza-
tional Loyalty, sponsored by the Society for Human Resource Management, showed
ethics that employees’ perceptions of ethical behavior on the part of their managers may
A set of standards of conduct be the most important driver of the trust and loyalty their subordinates have for
and moral judgments that
help to determine right and them and the organization as a whole. According to the study, of critical interest
wrong behavior to employees is the consistent and credible communication of information about
the organization’s ethical standards and its values, the organization’s mission, and its
workplace policies.90
As you learned earlier in the book, many organizations have their own codes of
ethics that govern how they deal with their employees and the public. These writ-
ten codes focus attention on an organization’s ethical values and provide a basis for
its managers to evaluate their plans and actions. HR departments have been given
a greater role in communicating an organization’s values and standards, monitor-
ing compliance with its code of ethics, and enforcing the standards throughout the

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560 PART 5 Enhancing Employee-Management Relations

Employee Rights and Privacy

Employee Rights vs. Employer Responsibilities

employee? Nonetheless, negligent-hiring lawsuits have forced managers to take extra

Job Protection Rights

the idea to rival

overtly. For example, instead of simply terminating an employee, an employer might

right of privacy is the freedom from unwarranted government or business intrusion

Substance Abuse and Drug Testing

A Sample Electronic Communications Policy (continued)

Policy Statement for Internet/Intranet Browser(s)

Personal Electronic Equipment

Off-Duty Employee Speech

6. The consequences of failing to make the improvements by a certain follow-up

The Investigative Interview

Approaches to Disciplinary Action

Alternative Dispute Resolution Procedures

for final resolution. Organizations such as Northrop Grumman, Polaroid, Citicorp,

Managerial Ethics in Employee Relations

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