Employee Rights, Privacy and Discipline

Chapter 13
Employees Rights and Discipline
Copyright ©2019 Cengage. All Rights Reserved.
Learning Outcomes
After studying this chapter, you should be able to
Explain the concepts of employee rights and employer
responsibilities.
Identify and explain what the privacy rights of employees are.
Establish disciplinary policies and differentiate between the two
approaches to disciplinary action.
Identify the different types of alternative dispute resolution
methods.
Discussion Starter #1
Google, owner of Nest, set up an internal website for employees
to report whistle-blowers. After paying $200 million in fines
due to one whistle-blower at Nest, the company now encourages
employees to air their frustrations by talking to management
before talking to the press.

What are some consequences that employees can face from
whistle-blowing?
What government measures have been put in place that provide
protection to whistle-blowers?
3
ANSWER: Whistle-blowers may face retaliation and often
become unemployed. In addition, not everyone sees whistle-
blowing as a positive decision; rather, you may be looked at as
a “snitch.”
The Sarbanes–Oxley (SOX) Act protects whistle-blowers
employed in publicly traded companies. The law encourages
whistle-blowing by motivating publicly held companies to
promote a more open culture that is sympathetic to employees
who have a “reasonable belief ” that a law has been violated.
Federal employees are covered by the federal Whistleblower
Protection Act (WPA). The Notification and Federal Employee
Antidiscrimination and Retaliation Act (No FEAR Act) requires
federal agencies to be more accountable for violations of
antidiscrimination and whistle-blower protection laws. The
False Claims Act (FCA) and Dodd–Frank Wall Street Reform
and Consumer Protection Act protect and financially reward
whistle-blowers who expose fraud related to governmental
programs and wrongdoing related to consumer financial
products or services, respectively. OSHA administers the
whistle-blowing provisions in 15 federal statutes protecting
whistle-blowers in such industries as airline, nuclear power, and
public transportation.

13.1 Employee Rights and Privacy
Employee rights – Guarantees of fair treatment that become
rights when they are granted to employees by the courts,
legislatures, or employers
Included among those rights are the rights of employees to:
Protest unfair disciplinary actions
Question genetic testing
Have access to their personal files
Challenge employer searches and monitoring
Be largely free from employer discipline for off-duty conduct
4
Figure 13.1:
Employee Rights vs. Employer Rights
Section 13.1a: Employee Rights versus Employer
Responsibilities
Balanced against employee rights is the employer’s
responsibility to provide a safe workplace for employees while
guaranteeing safe, quality goods and services to consumers.
However, employee rights and employer responsibilities often

come into conflict.
5
13.1b Negligent Hiring
Negligence – The failure to provide reasonable care when such
failure results in injury to consumers or other employees
6
Group Activity
Assume the following hypothetical situation:
A company is being sued for negligent hiring. They hired
an employee who at the time of recruitment disclosed verbally
and stated in writing about their prior drug addiction. Is the
company guilty of negligent hiring?
Step 1: The instructor will divide the class into two groups—
one supporting the argument that the company is guilty of
negligent hiring and the other opposing it.
Step 2: Conduct a debate. Substantiate your claims with real-
life examples.
7
Estimated class time: 15–20 minutes

13.1c Job Protection Rights (slide 1 of 5)
Psychological contract – Expectations of a fair exchange of
employment obligations between an employee and employer
Example: In exchange for their talents and technical skills,
workers expect employers to provide fair compensation, job
training, and promotions.
Employment-at-Will
Employment-at-will relationship – The right of an employer to
fire an employee without giving a reason and the right of an
employee to quit when he or she chooses
The employment-at-will doctrine does not give managers and
supervisors the unrestricted right of termination.
Federal and state laws and court decisions restrict termination
decisions.
In unionized organizations, collective bargaining agreements
limit automatic discharges.
8
Employment-at-Will (cont’d)
Three exceptions to the employment-at-will doctrine:
Violation of public policy
Occurs when an employee is terminated for refusing to commit
a crime; for reporting criminal activity to government
authorities; for disclosing illegal, unethical, or unsafe practices
of the employer; or for exercising employment rights

Implied contract
Occurs when employees are discharged despite the employer’s
promise of job security or contrary to established termination
procedures
Implied covenant
Occurs when an employer has acted with a lack of good faith
and fair dealing
9
Figure 13.2:
Discharges That Violate Public Policy
Section 13.1c: Job Protection Rights
Figure 13.2 lists examples of public policy violations.
10
Wrongful Discharge
Wrongful discharge – A discharge, or termination, of an
employee that is illegal

Whistle-Blowing
Whistle-blowing – Complaints to governmental agencies by
employees about their employers’ illegal or immoral acts or
practices
Implied Contract
If an implied promise by an employer of a condition, such as
job security, has been made, courts have generally prohibited
the employer from terminating the employee without first
exhausting the conditions of the contract.
11
Figure 13.3: Tips to Avoid Wrongful Employment Termination
Lawsuits
Section 13.1c: Job Protection Rights
Figure 13.3 lists some suggestions that firms can follow in order
to avoid wrongful employment termination lawsuits.
12

Explicit Contracts
Explicit employment contracts are formal written (signed)
agreements that grant to employees and employers agreed-upon
employment benefits and privileges.
Explicit contracts normally state the period of employment,
terms and conditions of employment, and severance provisi ons.
When an employee has an explicit contract, he or she cannot be
dismissed at will.
Before hiring employees, employers sometimes impose certain
restrictions, or provisions, in explicit contracts, such as
nondisclosure of information agreements, which forbid
employees from revealing proprietary information outside the
company during or following their employment, and
noncompete agreements, which prevent ex-employees from
either becoming a competitor or working for a competitor for a
designated period of time.
Explicit contracts are enforceable in court when either the
employee or employer violates any provisions of the agreement.
13
Constructive Discharge
Constructive discharge – An employee’s voluntary termination
of his or her employment because of harsh, unreasonable
employment conditions placed on the individual by the
employer
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 statutes.
Discharges and the WARN Act
The Worker Adjustment and Retraining Notification (WARN)
Act requires organizations with more than 100 employees to
give employees 60 days’ notice of any closure or layoff
affecting 50 or more full-time employees.
14
Figure 13.4: The Balance of Employee Rights
to Privacy vs. Employers Wanting to Know
Section 13.1d: Privacy Rights
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 autonomy
and to be left alone. Not surprisingly, employees strongly
defend their right to workplace privacy. Meanwhile, employers

defend their right to monitor employees’ activities when they
directly affect a business, its productivity, workplace safety,
and/or morale.
15
13.1d Privacy Rights
Substance Abuse and Drug Testing
In the private sector, drug testing is largely regulated by
individual states.
Federal regulations and laws restrict drug testing as well.
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 for
unionized employees must be negotiated by their unions.
Impairment Testing
Impairment testing – Also called fitness-for-duty or
performance-based testing, it measures whether an employee is
alert enough to work
16
Figure 13.5: Recommendations
for a Drug-Free Workplace Policy

Section 13.1d: Privacy Rights
Figure 13.5 shows an example of a drug-free workplace policy.
17
13.1e Digital Surveillance (slide 1 of 4)
Camera Surveillance
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.
Phone Conversations and Text Communications
In general, employers have the right to monitor calls, texts, and
direct 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.
The Electronic Communications Privacy Act (ECPA) restricts
employers from intercepting wire, oral, or electronic
communications, unless employees are told not to make
personal calls or send text messages from their business phones.
18

Email, Internet, and Computer Use
Employers can monitor what their employees do online and fire
or discipline them based on that information.
Until recently employers were allowed to monitor any and all
email communications their employees sent from work
computers, but court rulings have limited employers’ rights
somewhat.
More and more companies are banning social media at work.
Companies can legally create electronic communication policies
that limit employees’ Internet use.
Access to Personnel Files
A firm’s HR department is usually responsible for maintaining
personnel files and safeguarding their flow to prevent, among
other things, identity theft.
Legislation at the federal level and various state laws permit
employees to inspect their own personnel files.
19
Figure 13.6: Why Do Employees
Turn to Social Media at Work?

Section 13.1e: Digital Surveillance
Figure 13.6 lists reasons why employees use social media at
work.
20
Video Highlight #1
This article and video look at how many companies are using
new technology (such as apps) to track and monitor their
employees.
“New Ways Your Boss Could Be Keeping Tabs on You”
21
VIDEO: New Ways Your Boss Could Be Keeping Tabs on You
(3:44)
This article and video looks at how many companies are using
new technology (such as apps) to track and monitor their
employees.
https://www.cbsnews.com/news/companies-use-technology-
monitor-employees-at-outside-office/
TOPICS/CONCEPTS: employee privacy rights, employer
surveillance, employee monitoring
Figure 13.7: Guidelines for Safeguarding Personnel Files

Figure 13.7 shows the steps employers can take to safeguard
employees’ personal information.
22
Searches
A firm that reserves the right to search employees under
warranted circumstances should have a written plan as to the
privacy employees can expect.
The search policy should be clearly outlined in a firm’s
employee handbook.
When possible, searches should be conducted in private.
The employer should attempt to obtain the employee’s consent
prior to the search.
The search should be conducted in a humane and discreet
manner to avoid infliction of emotional distress.
The penalty for refusing to consent to a search should be
specified.
23
Off-Duty Employee Conduct
A number of states have passed laws that prohibit employees

from disciplining or firing employees for activities they pursue
offsite on their own time as long as they are legal.
Even when the activities are illegal, court rulings have
suggested that the conduct may not, in some circumstances, be a
lawful jurisdiction for employee discipline.
Organizations that want to discipline employees for off-duty
misconduct must establish a clear relationship between the
misconduct and its negative effect on other employees or the
organization.
Off-Duty Employee Speech
Some organizations have policies that restrict employees from
making disparaging remarks online about their firms or its
supervisors.
24
Figure 13.8: When Workplace Romance Can Be a Bad Idea
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.
Although some companies have strict anti-fraternization
policies, such a policy can lead to lawsuits.
25
Video Highlight #2
After some public criticism, Starbucks says it’s considering
changing its strict employee dress code, including its ban on
visible tattoos. This video looks at how visible tattoos are
becoming more accepted in today’s workplace.
“Starbucks Rethinking Visible Tattoo Ban for Employees”
26
VIDEO: Starbucks Rethinking Visible Tattoo Ban for
Employees (1:56)
After some public criticism, Starbucks says it’s considering
changing its strict employee dress code, including its ban on
visible tattoos. This video looks at how visible tattoos are
becoming more accepted in today’s workplace.
https://www.youtube.com/watch?v=OHIu7dORkq4
TOPICS/CONCEPTS: body art, tattoos, discrimination, tattoos
in the workplace, employee tattoos

Explain three areas in which employee rights and employer
responsibilities could result in conflict.
How might this conflict arise?
27
ANSWER: Drug testing, email usage, and employee searches
and surveillance are three prominent areas where employee
rights and employer responsibilities can come into conflict.
Other areas could include genetic testing and off duty conduct.
Conflict can arise between employees and employers when
employees believe their behavior is their personal concern not
subject to employer suspicion or infringement. Employers,
however, cite their responsibility to run their business in a safe
and efficient manner as a defense against unlimited employee
rights. For example, employees might believe they have a right
privacy in their personal email messages and object to
management routinely monitoring all employee email. Ask
students for other areas of possible conflict.
Figure 13.9:
The True Definition of Discipline

Section 13.2: Disciplinary Policies and Procedures
When managers are asked to define the word discipline, their
most frequent response is that discipline means punishment.
However, in the context of management, discipline does not
mean punishment. Rather, discipline is a tool used to correct the
practices of employees to help them perform better so they
conform to acceptable standards. Many organizations define
discipline in their policy manuals as training that “corrects,
molds, or perfects knowledge, attitudes, behavior, or conduct.”
28
Figure 13.10:
Common Disciplinary Problems
Section 13.2: Disciplinary Policies and Procedures
Figure 13.10 lists the more common disciplinary problems
identified by managers.
29
Figure 13.11: A Disciplinary Model

Section 13.2a: The Result of Inaction
Figure 13.11 presents a disciplinary model that illustrates the
areas where provisions should be established. The model also
shows the logical sequence in which disciplinary steps must be
carried out to ensure enforceable decisions.
30
13.2a The Result of Inaction
Should discipline become necessary, the employee’s immediate
supervisor is the logical person to apply the company’s
disciplinary procedures and monitor the employee’s
improvement, although the HR departments should develop and
ensure disciplinary policy and action conform to current laws.
31
13.2b Setting Organizational Rules
Setting an organization’s rules is the foundation for an effective
disciplinary system.
These rules govern the type of behavior expected of employees.
The following suggestions can help HR managers and their
firms when they are considering the rules the organization
should adopt and how they should be implemented:
The rules must be reasonable and relate to the safe and efficient
operation of the organization.
The rules as well as the consequences for breaking them should
be written down and widely disseminated to all employees.
The rules should be clearly explained.

Employees should sign a document stating that they have read
and understood the organizational rules.
The rules should be reviewed periodically.
32
Figure 13.12: Questions to Consider during Disciplinary
Investigations
Section 13.2c: Investigating a Disciplinary Problem
Figure 13.12 lists seven questions to consider when
investigating an employee offense. Attending to each question
will help ensure a full and fair investigation while providing
reliable information free from personal prejudice.
33
13.2c Investigating a
Disciplinary Problem (slide 1 of 2)
Documenting Misconduct
To ensure that the documentation is as accurate as possible, a
manager should record the following eight items immediately
after an incident takes place:

The date, time, and location of the incident(s)
The behavior exhibited by the employee (the problem)
The consequences of that action or behavior on the employee’s
overall work performance and/or the operation of the
employee’s work unit
Prior discussion(s) with the employee about the problem
The disciplinary action to be taken and the improvements
expected
The consequences of failing to make the improvements by a
certain follow-up date
The employee’s reaction to the supervisor’s attempt to change
the behavior
The names of witnesses to the incident (if applicable)
34
Discuss why documentation is so important to the disciplinary
process.
What constitutes correct documentation?
35
ANSWER: When a manager fails to record the misconduct of

employees, it can undermine a firm’s
efforts to deal with the behavior. A manager’s records of
employee misconduct are considered
business documents, and as such they are admissible evidence in
arbitration
hearings, administrative proceedings, and courts of law.
To be complete, the documentation should include the following
eight items:
The date, time, and location of the incident(s)
The behavior exhibited by the employee (the problem)
The consequences of that action or behavior on the employee’s
overall work performance and/or the operation of the
employee’s work unit
Prior discussion(s) with the employee about the problem
The disciplinary action to be taken and the improvements
expected should be documented
The consequences of failing to make the improvements by a
certain follow-up date
The employee’s reaction to the supervisor’s attempt to change
his or her behavior
The names of witnesses to the incident (if applicable)
13.2c Investigating a
Disciplinary Problem (slide 2 of 2)
The Investigative Interview
Before any disciplinary action is initiated, an investigative
interview should be conducted to make sure the employee is
fully aware of the organization’s rules and that he or she has not
followed them.
The interview should concentrate on how the offense violated
the performance and behavior standards expected.
The employee must be given a full opportunity to explain his or
her side of the issue.

36
13.2d Approaches to
Disciplinary Action
Two approaches to disciplinary action:
1. Progressive discipline – The application of corrective
measures by increasing degrees
Four steps:
Oral warning (or counseling)
Written warning
Suspension without pay
Discharge
2. Positive, or nonpunitive, discipline – A system of
discipline that focuses on early correction of employee
misconduct, with the employee taking total responsibility for
correcting the problem
37
13.2e 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.
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.
38
Figure 13.13:
“Just Cause” Discharge Guidelines
Section 13.2e: Discharging Employees
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 form of rules developed in
the field of labor arbitration. These rules consist of a set of
guidelines that are applied by arbitrators to determine if a firm
had just cause for a termination. These guidelines are normally
set forth in the form of questions, provided in Figure 13.13. A
“no” answer to any of the seven questions in the figure
generally means that just cause was not established and that the
decision to terminate was arbitrary, capricious, or
discriminatory.

39
13.2f Alternative Dispute
Resolution Procedures (slide 1 of 3)
Alternative dispute resolution (ADR) – A term applied to
different employee complaint or dispute resolution methods that
do not involve going to court
Step-Review Systems
Step-review system – A system for reviewing employee
complaints and disputes by successively higher levels of
management
In most step-review systems, the president, chief executive
officer, vice president, or HR director acts as the final
authority, and this person’s decision is not appealable.
40
Peer-Review Systems
Peer-review system – A system for reviewing employee
complaints that utilizes a group composed of equal numbers of
employee representatives and management appointees
A peer-review system functions as a jury because its members
weigh evidence, consider arguments, and, after deliberation,
vote independently to render a final decision.
Open-Door Policy

Open-door policy – A policy of settling grievances that
identifies various levels of management above the immediate
supervisor for employee contact
Ombudsman System
Ombudsman – A designated individual from whom employees
may seek counsel for resolution of their complaints
41
Mediation
Mediation – The use of an impartial neutral to reach a
compromise decision in employment disputes
Mediator – A third party in an employment dispute who meets
with one party and then the other to suggest compromise
solutions or to recommend concessions from each side that will
lead to an agreement
Unlike an arbitrator, a mediator has no power or authority to
force either side toward an agreement.
Arbitration
With arbitration, the employee and employer present their
cases, or arguments, to an arbiter, who is typically a retired
judge, who then makes a decision that the parties have agreed to
be bound by.

42
Figure 13.14: Key to Success
Section 13.2f: Alternative Dispute Resolution Procedures
A mediator serves primarily as a fact finder and as an open
channel of communication between the parties. Unlike
arbitrators, mediators have no power or authority to force either
side toward an agreement. They must use their communication
skills and the power of persuasion to help the parties resolve
their differences, as illustrated in Figure 13.14.
43
13.3 Managerial Ethics
in Employee Relations
Ethics – A set of standards of conduct and moral judgments that
help to determine right and wrong behavior
Many organizations have codes of ethics that govern how they
deal with their employees and the public.
HR departments have been given a greater role in promoting
ethics.
Many organizations have ethics committees and ethics
ombudsmen to provide training in ethics to employees.

Goals of ethics training:
To avoid unethical behavior and adverse publicity
To gain a strategic advantage
To treat employees in a fair and equitable manner
44
Based on your observations of the chronology and overview,
how do you feel that efforts/movements presented that focused
on civil rights impacted the evolution of laws that address the
work environment (employee-employer relationships, employee
rights/treatment, etc.)? Know the basic definition of civil
rights.
2. In A, B & C that follow, read the material indicated and
follow the assignment given.
NOTE: Extended answers are not being sought in responding to
questions. Addressing all questions listed should not result in
more than two pages with all typed responses. Please organize
your assignment by restating the questions followed by
responses in paragraph form.
Text: The Law of Higher Education (Kaplin & Lee)
A. Chapter 1 PERSPECTIVES AND FOUNDATIONS
(Read Pages 40-57)
Read Sections: 1.5 The Public–
Private Dichotomy
1.5.1 Overview
1.5.2 The state action doctrine
1.5.3 Other basis for legal rights in

private institutions
Also, read State Action Doctrine (Links to an external
site.) under the Resources
Assignment
Q: What is meant by the term “State Action?”
Q: What is mean by the term “under color of law?”
Q: How does the State Action Doctrine impact both public and
private colleges and universities?
Readings
Be prepared to discuss how this material relates to and affects
institutional work environments (employee-employer
relationships, employee rights/treatment, etc.).
B. Chapter 1 PERSPECTIVES AND FOUNDATIONS
(Read Pages 57-75)
Read Sections: 1.6 Religion and
Public-Private Dichotomy
1.6.1 Overview
1.6.2 Religious autonomy rights and
religious institutions and their personnel
1.6.3 Government support for
religious institutions
1.6.4 Religious autonomy rights of
individuals in public post-secondary institutions
Assignment
Q: What is the Establishment Clause?
Q: Based on the material read, how do you think religious
(sectarian) institutions might be treated the same and be treated
differently “under the law” (laws’ application/affect) when it
comes to employment (employee-employer relationships,
employee rights/treatment, etc.)?
Readings
Be prepared to discuss how this material relates to and affects

institutional work environments (employee-employer
relationships, employee rights/treatment, etc.).
C. Chapter 4 THE COLLEGE AND ITS EMPLOYEES
(Read Pages 255-261)
Read Sections: 4.1 Overview of
Employment relationships
4.2 Defining the Employee
Relationship
4.2.1 Employees versus independent
contractors
4.2.2 Where is the workplace?
Read the following at the link given:
Fact Sheet #13: Am I an Employee?: Employment
Relationship Under the Fair Labor Standards Act (FLSA)
https://www.dol.gov/whd/regs/compliance/whdfs13.pdf
Assignment
Q: What constitutes an employer-employee relationship?
Q: Is the employment relationship a contractual relationship?
Q: Can the employment relationship be modified?
Q: What is the Fair Labor Standards Act (FLSA)?

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