Academy of
Business
Professionals
SESSION ON
EMPLOYMENT RIGHTS
Learning Objectives
• Identify employee rights associated with free speech and access to employee records.
• Discuss issues associated with workplace monitoring, employer investigations, and
drug testing.
• List elements to consider when developing an employee handbook.
• Describe different kinds of absenteeism and how to measure it.
• Differentiate between the positive approach and the progressive approach to
discipline.
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.
Rights are offset by responsibilities, which are obligations to perform certain tasks and
duties. Employment is a reciprocal relationship in that both the employer and the employee
have rights and obligations.
Contractual Rights
An employee’s contractual rights are based on a specific contract with an employer such as,
a union and an employer may agree on a labour contract that specifies certain terms,
conditions, and rights.
Employment Contracts :
An employment contract is a formal agreement that outlines the details of employment.
Noncompete Agreements
which prohibit individuals who leave an organisation from working with an employer in the
same line of business for a specified period of time.
Employer and Employee Rights and Responsibilities
Intellectual Property
An additional area covered in employment contracts is protection of intellectual property
and trade secrets. Employer rights in this area include the following:
• The right to keep trade secrets confidential
• The right to have employees bring business opportunities to the employer first
• Before pursuing them elsewhere A common-law copyright for works and
• Other documents prepared by employees for their employers
Implied Contracts
The idea that a contract exists between individuals and their employers affects the
employment relationship. The rights and responsibilities of the employee may be spelled
out in a job description, in an employment contract, in HR policies, or in a handbook, but
often they are not. The rights and responsibilities of the employee may exist only as
unwritten employer expectations about what is acceptable behaviour or performance on the
part of the employee.
Managing Individual Employee and Employer Rights
Issues
Globally, laws and policies vary, which means
more issues for employers with expatriates
and local workers in different countries.
Privacy Rights and Employee Records
Employee Medical Records: As interpreted
by attorneys and HR practitioners, this
provision requires that all medical- related
information be maintained separately from all
other confidential files.
Managing Individual Employee and Employer Rights
Issues
Security of Employee Records
Employee Medical Records : As interpreted by attorneys and HR practitioners, this
provision requires that all medical-
Related information be maintained separately from all other confidential files.
The following guidelines are offered regarding employer access and storage of employee
records:
• Restrict access to records to a limited number of individuals.
• Use confidential passwords for accessing employee records in various HR databases.
• Set up separate files and restricted databases for especially sensitive employee
information. Inform employees about which types of data are retained.
• Purge employee records of outdated data.
• Release employee information only with employee consent.
Personnel files and records usually should be maintained for three years.
Managing Individual Employee and Employer Rights Issues
Technology and Employer/Employee Issues
Monitoring Electronic Communications :
Employers have a right to monitor what is said and transmitted through their Internet and
voicemail systems, despite employees’ concerns about free speech. Advances in information
and telecommunications technology have become a major employer issue regarding
employee and workplace privacy.
HR Policies on Electronic Communications :
Some areas in which HR policies need to be made can include the following:
• Establishing security and voicemail system
• Communicating that the employer will attempt to monitor security, but it may not be totally
guaranteed
• Restricting the use of employee records to a few individuals
Managing Individual Employee and Employer Rights Issues
Employee Rights and Personal Behaviour Issues
Another area to which employers must give attention is employee personal behaviour.
Personal behaviour on or off the job could be at issue.
Reviewing Unusual Behaviour :
Employers may decide to review unusual behaviour by employees both on and off the job.
For instance, if an employee is suddenly wearing many new clothes and spending lavishly,
inquiries as to the reasons why and the resources used might be warranted.
Dressing and Body Appearance Limitations
Employers have put limits on employees’ dress and appearance in some situations,
including items such as visible tattoos, certain clothing and accessories, and body piercings.
Many managers have unwritten dress policies, but legally it is recommended that firms have
written dress and appearance policies and codes.
Balancing Employer Security and Employee Rights
Workplace Monitoring
Conducting Video Surveillance at Work :
Some employers use these systems to ensure employee security, such as in parking lots,
garages, and dimly lit exterior areas. Other employers have installed them on retail sales
floors and in production areas, parts and inventory rooms, and lobbies. But employers
must be careful that employee privacy should not be collide.
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 common
concerns in a monitored workplace usually centre not on whether monitoring should be
used, but on how it should be conducted, how the information should be used, and how
feedback should be communicated to employees.
Employer Investigations
Another area of concern regarding employee rights involves workplace investigations.
Whether on or off the job, unethical or illegal employee behaviour can be a serious problem
for organisations.
Balancing Employer Security and Employee Rights
Workplace Monitoring
Conducting Work-Related Investigations:
Workplace investigations can be conducted by internal or external personnel. Often, HR
staff and company security personnel lead internal investigations. Until recently, the use
of outside investigators—the police, private investigators, attorneys, or others—was
restricted by the Fair Credit Reporting Act.
Employee Theft :
A problem faced by employers is employee theft of property and vital company secrets.
White-collar theft through embezzlement, accepting bribes, and stealing company property
also is a concern. If the organisational culture encourages or allows questionable
behaviour, then employees are more likely to see theft as acceptable.
HR Policies, Procedures, and Rules
HR policies, procedures, and rules greatly affect employee rights and discipline. Where
there is a choice among actions, policies act as general guidelines that help focus those
organisational actions.
Policies are general in nature, whereas procedures and rules are specific to the situation.
The important role of all three requires that they be reviewed regularly.
Procedures provide customary methods of handling activities and are more specific than
policies. Rules are specific guidelines that regulate and restrict the behaviour of individuals.
They are similar to procedures in that they guide action and typically allow no discretion in
their application. Rules reflect a management decision that action be taken—or not taken—
in a given situation, and they provide more specific behavioural guidelines than do policies.
HR Policies, Procedures, and Rules
Employee Handbooks
can be an essential tool for communicating information about workplace culture, benefits,
attendance, pay practices, safety issues, and discipline. The handbooks are sometimes
written in a formal legalistic fashion, but need not be. More common language can make
the handbook a positive element.
Handbooks may contain many different areas, but some policies commonly covered in
them include:
• At-will prerogatives • Harassment
• Electronic • Pay and benefits
• Communication • Hours worked
• Discipline
HR Policies, Procedures, and Rules
Communicating HR Information
HR communication focuses on the receipt and dissemination of HR data and information
throughout the organisation.
Downward communication flows from top management to the rest of the organisation,
informing employees about what is and will be happening in the organisation, and what the
expectations and goals of top management are.
Upward communication enables managers to learn about the ideas, concerns, and
information needs of employees.
Organisations communicate with employees through internal publications and media,
including newspapers, company magazines, organisational newsletters, videotapes,
Internet postings, and e-mail announcements. Whatever the formal means used, managers
should make an honest attempt to communicate information employees need to know.
Employee Absenteeism
Absenteeism is any failure by an employee to report for work as scheduled or to stay at
work when scheduled. Being absent from work may seem like a normal matter to an
employee. But if a manager needs 12 people in a unit to get the work done, and 4 of the 12
are absent much of the time, the work of the unit will decrease or additional workers will
have to be hired to provide results.
Types of Absenteeism
Involuntary: Unavoidable (sick
leave)
Voluntary: Avoidable (Casual)
Controlling Absenteeism
The methods employers use to address absenteeism can be placed into five categories as
follows:
• Disciplinary approach • Positive reinforcement
• Combination approach • Paid-time-off (PTO) programs
• “No-fault” policy
Employee Absenteeism
HR Metrics: Measuring Absenteeism:
Various methods of measuring or computing absenteeism exist. One formula suggested is as
follows:
Number of person-days lost through job absence during period
X100
(Average number of employees) x (Number of workdays)
Other useful measures of absenteeism might include:
• Incidence rate: The number of absences per 100
employees each day
• Inactivity rate: The percentage of time lost to
absenteeism
• Severity rate: The average time lost per absent employee during a specified period of
time (a month or a year)
Employee Absenteeism
HR Metrics: Measuring Absenteeism:
When absenteeism costs are specifically identified, they may include these variables:
• Lost wages and benefits
• Overtime for replacements
• Fees for temporary employees, if incurred
• Supervisor’s and manager’s times
• Substandard production and performance
• Overstaffing necessary to cover anticipated absences
Employee Discipline
Discipline is a form of training that enforces organisational rules. Those most often affected
by the discipline systems are problem employees.
Common disciplinary issues caused by problem employees include absenteeism, tardiness,
productivity deficiencies, alcoholism, and insubordination.
Reasons Why Discipline Might Not Be Used
Some of the main ones include the following:
•Organisational culture of avoiding discipline: If the organisational “norm” is to avoid
penalizing problem employees, then managers are less likely to use discipline or to dismiss
problem employees.
•Lack of support: Many managers do not want to use discipline because they fear that their
decisions will not be supported by higher management.
•Guilt: Some managers realize that before they became managers, they committed the
same violations as their employees, and therefore they do not discipline others for actions
they formerly did.
Employee Discipline
•Fear of loss of friendship: Managers may fear losing friendships or damaging personal
relationships if they discipline employees.
•Avoidance of time loss: Discipline often requires considerable time and effort. Sometimes
it is easier for managers to avoid taking the time required for disciplining, especially if their
actions may be overturned on review by higher management.
•Fear of lawsuits: Managers are increasingly concerned about being sued for disciplining
an employee, particularly in regard to the ultimate disciplinary step of termination.
Effective Discipline
Effective discipline should be aimed at the problem behaviours, not at the employees
personally, because the reason for discipline is to improve performance. Distributive and
procedural justice suggest that if a manager tolerates unacceptable behaviour, other
employees may resent the unfairness of that tolerance.
Employee Discipline
Approaches to Discipline
Positive Discipline Approach The positive discipline approach builds on the philosophy that
violations are actions that usually can be corrected constructively without penalty. In this
approach, managers focus on using fact finding and guidance to encourage desirable
behaviours, rather than using penalties to discourage undesirable behaviours.
The four steps to positive discipline are as follows
1. Counselling
2. Written documentation
3. Final warning
4. Discharge
Progressive Discipline Approach incorporates steps that become progressively more
stringent and are designed to change the employee’s inappropriate behaviour. Although it
appears to be similar to positive discipline, progressive discipline is more administrative and
process oriented. Following the progressive sequence ensures that both the nature and the
seriousness of the problem are clearly communicated to the employee.
Employee Discipline
Discharge: The Final Disciplinary Step
The final stage in the disciplinary process may be called discharge, firing, dismissal, or
termination, among other terms. Regardless of the word used, discharge is when an
employee is removed from a job at an employer. Both the positive and the progressive
approaches to discipline clearly provide employees with warnings about the seriousness of
their performance problems before dismissal occurs.
Following terminations, HR professionals and managers may be faced with wrongful
termination claims and lawsuits. From a legal standpoint, terminating workers because
they do not keep their own promises is likely to appear equitable and defensible in many
courts, but nevertheless, it is important for the employer to consistently document reasons
for termination and to follow appropriate HR processes
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