Employee Rights
A right is the ability to engage in conduct that is protected by law or social sanction, free from interference by another party (such as an employer). For example, employees have the legal right to form a union. It is illegal for an employer to discourage employees from exercising their right to form a union by withholding pay increases from those who support the union.
The scope of employee rights has broadened in the last 50 years as the federal and state governments have enacted laws giving employees specific protections. Additionally, in the last few decades courts have been more willing to protect employees from wrongful discharge than they were in the past. Many believe that the courts have been more proactive in protecting employees’ rights because of the shrinking proportion of the labor force that is protected by union contracts.
Figure 14.1 shows the three different categories of employee rights that managers must consider: (1) statutory rights, (2) contractual rights, and (3) other rights.
Statutory Rights Contractual Rights Other Rights
Protection from discrimination
Safe working conditions
Right to form unions
Employment contract
Union contract
Implied contracts/employment policies
Ethical treatment
Privacy (limited)
Free speech (limited)
FIGURE 14.1 Categories of Employee Rights
Statutory Rights
Employees’ statutory rights are protected by specific laws enacted by government. A key statutory right of employees is protection from discrimination based on race, sex, religion, national origin, age, handicap, or other protected status under Title VII of the Civil Rights Act of 1964 and other equal employment opportunity laws (see Chapter 3). The Equal Employment Opportunity Commission (EEOC) regulates employer conduct to ensure that employees are not discriminated against.
Another important employee statutory right is protection from unsafe or unhealthy working conditions. The Occupational Safety and Health Act (OSHA) requires employers to provide safe working conditions for workers and has established the Occupational Safety and Health Administration to regulate health and safety practices at companies (see Chapter 16).
Employees also have the legal right to form unions and participate in union activities (see Chapter 15). The National Labor Relations Board (NLRB) regulates employer and employee conduct to ensure fair labor practices.
Contractual Rights
Contractual rights are based on the law of contracts. A contract is a legally binding promise between two or more competent parties.4 A breach of contract, in which one of the parties does not perform his or her promised duty to the other party, is subject to legal remedy.
Both employers and employees have rights and obligations to each other when they enter into a contract. An employment contract spells out explicitly the terms of the employment relationship for both employee and employer. In general, such contracts state that the employee is expected to work competently over a stipulated period of time and that the employer is expected to provide a mutually agreed upon amount of pay, as well as specific working conditions, over this time period.5 Employees covered by employment contracts include nonunionized public school teachers, college football coaches, actors in film and television, top-level executives, and middle management.6 Only a very small percentage of the labor force works under employment contracts.
The provisions of the employment contract give the employee job security and are, at least theoretically, negotiated individually. We say “theoretically” because there are cases in which contracts are so similar as to be standard. For instance, many public school teachers not covered by union contracts are hired on a year-to-year basis by the school district. In theory, each teacher negotiates his or her own contract. In practice, however, because of the volume of contracts that must be written, the vast majority of these contracts follow a standard pattern.
Some industries have standard contract provisions to protect their interests more fully. For instance, employers in competitive technology and service industries often have several employment contract provisions that forbid employees to (1) disclose trade secret information during or after their employment, (2) solicit business from former customers, or (3) attempt to hire former coworkers after leaving the company.7 For some high-profile jobs, such as top-level executives, the contract will not follow the standard pattern and will, in fact, be negotiated individually.8 An employee under contract may be fired for reasons other than nonperformance, but he or she is then entitled to compensation for the life of the contract.
A significant percentage of employees in the U.S. labor force (around 11%) are covered by union contracts, which protect groups of unionized workers. Union contracts do not provide as much job security as individually negotiated employment contracts do, but they do provide some job security through seniority and union grievance procedures. Seniority provisions protect the jobs of the most senior workers through the “last in, first out” layoff criterion that is commonly written into the union contract (see Chapter 6). Union grievance procedures subject all disciplinary actions (including discharge) to due process , which requires a fair investigation and a showing of just cause to discipline employees who have not performed according to expectations. An arbitrator who is empowered to decide discipline and rights cases can restore the job rights and back pay of an employee who has been wrongfully discharged. (Wrongful discharge is discharge for reasons that are either illegal or inappropriate, such as age or the refusal to engage in illegal activities.)
Sometimes employers and employees enter into a contract even though no formal contract exists. In this case, the employer and the employee are said to have entered into an implied contract. Certain employment policies and practices may unintentionally create an implied contract. The courts have interpreted statements made by an interviewer or manager such as “You will always have a job as long as you do your work” as a promise of job security.9 Employees who lost their jobs because of layoffs have successfully obtained legal remedies when such promises were made.
Employee handbooks can be another source of implied employment contracts if they offer job security. Some courts have interpreted statements like “Employees will be dismissed only for just cause” as placing the burden of proof on the company for a termination decision.10 In addition, when an employee handbook or employment policy makes a distinction between “probationary” and “permanent” employees, the courts have held that employers are promising continued employment to workers who successfully complete the probationary period and become permanent employees. To date, at least 38 states have recognized that employee handbooks can be interpreted as enforceable contracts.11
Other Rights
Employees often expect certain other rights in addition to statutory and contract rights. These include a right to ethical treatment and limited rights to free speech and privacy. These rights differ from the first two categories of rights in an important way: Although employees may expect these rights, they may have no legal recourse if they feel that these rights have been violated. Even though the law does not require employers to extend these other rights to employees, doing so is likely to result in more satisfied workers who are willing to go the extra mile for the organization.
Right to Ethical Treatment
Employees expect to be treated fairly and ethically in return for providing their employer with a fair and reasonable amount of work. This expectation is called the psychological contract. 12 Employers who uphold the psychological contract generally have more productive employees. In contrast, those who violate the psychological contract may cause employees to quit or to form a union. Because employee turnover is costly and unionization results in some loss of control over the business, managers should be aware of the importance of the psychological contract to employees.13 One way of sealing the psychological contract is to develop and publicize a code of ethics.14 HR can contribute to maintaining an ethical environment by integrating the code of ethics into employment policies, orientations for new employees, and formal training programs.15
Managers and supervisors can influence their companies’ climate of fairness and ethical behavior by the tone they set for employees in their work units.16 Specifically, managers and supervisors should:
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▪ Take actions that develop trust, such as sharing useful information and making good on commitments.
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▪ Act consistently so that employees are not surprised by unexpected management actions or decisions.
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▪ Be truthful and avoid white lies and actions designed to manipulate others by giving a certain (false) impression.
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▪ Demonstrate integrity by keeping confidences and showing concern for others.
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▪ Meet with employees to discuss and define what is expected of them.
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▪ Ensure that employees are treated equitably, giving equivalent rewards for similar performance and avoiding actual or apparent special treatment of favorites.
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▪ Adhere to clear standards that are seen as just and reasonable—for example, neither praising accomplishments nor imposing penalties disproportionately.
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▪ Demonstrate respect toward employees, showing openly that they care about employees and recognize their strengths and contributions.17
Limited Right to Privacy
The right to privacy protects people from unreasonable or unwarranted intrusions into their personal affairs. Although this right is not explicitly stated in the U.S. Constitution, the Supreme Court found in a 1965 ruling that it is implicit in the Constitution. For instance, the Constitution does explicitly prohibit unreasonable searches and seizures, and this prohibition is consistent with a more general right to privacy.
There are two additional legal bases for privacy rights. First, several state constitutions (including those of Arizona and California) contain an explicitly stated right to privacy. Second, several federal laws protect specific aspects of an employee’s privacy. For instance, the Crime Control and Safe Streets Act of 1968 has a provision that prevents employers from viewing or listening to an employee’s private communications without obtaining prior consent.
Because the U.S. and state constitutions limit the powers of the government, federal and state employees’ privacy rights are protected, although not absolutely. For instance, under a program mandated by Congress, employees whose jobs in U.S. aviation are directly related to safety must undergo periodic blood alcohol testing.18 However, the same constitutional protections do not apply to private employee arrangements. For instance, government employers are typically prohibited from searching their employees’ personal work space (desks, lockers, etc.) unless they have reasonable cause, but private employers typically are not prohibited from this kind of activity. Still, because employees expect certain privacy rights, it is almost always good policy for an employer to respect employee privacy.
A sensitive issue involving employee privacy rights is the maintenance of personnel files. Each worker’s personnel file contains the documentation of critical information, such as performance appraisals, salary history, disciplinary actions, and career milestones. Access to the personnel file should be denied to all people except managers who have a job-related “need to know” certain information. Employees should be able to review the information in their personnel file periodically to ensure its accuracy. If personnel files are stored in a human resource information system (HRIS), access to this sensitive information should be controlled by the use of passwords or special codes to protect employees’ privacy rights.
Employees of the U.S. federal government have the privacy of their personnel files protected under the Privacy Act of 1974 . The act requires federal agencies to permit employees to examine, copy, correct, or amend employee information in their personnel file. The act also includes provisions for an appeal procedure if there is a dispute over the accuracy of the information or what is to be included in the file.19
Employers may be able to discover personal information about employees through social networking sites, such as Twitter and Facebook, where people describe their nonwork activities to friends and post photos. Individuals should use discretion when posting indiscreet photos or stories on social networking sites that could potentially damage their reputation for conforming to conventional morality and ethics or having sound judgment. An increasing number of employers are scanning social networking sites as an informal recruitment practice to narrow the applicant pool and eliminate individuals prior to the interview phase.20 An example of a young woman who lost her job as a teacher when her employer saw a photo of her at a party that had been posted online is provided in the Manager’s Notebook, “Think Twice Before Posting Photos on the Internet.”
MANAGER’S NOTEBOOK Think Twice Before Posting Photos on the Internet
Technology/Social Media
Employee privacy is not protected in regard to photos or descriptions of employees’ off-the-job activities that are posted on the Internet. Poorly chosen words or photos posted online regarding one’s leisure-time experiences can have career-altering consequences. Stacy Snyder, who was a senior at Millersville University in Millersville, Pennsylvania, provides an instructive example. Snyder was dismissed from the student teaching program at a nearby high school and denied her teaching credential after the school staff came across her photograph on her MySpace profile. In response, Snyder filed a lawsuit in a federal court contending that her right to free expression under the First Amendment had been violated, but so far no trial date has been set.
Snyder’s photo, preserved at the Chronicle of Higher Education’s “Wired Campus” blog, turns out to be surprisingly innocent. In a head shot snapped at a costume party, Snyder, with a pirate’s hat perched atop her head, sips from a large plastic cup whose contents cannot be seen. When posting the photo, she fatefully captioned her self-portrait “drunken pirate,” although whether she was serious cannot be determined by looking at the photo.
Millersville University, in a motion asking the court to dismiss the case, contends that Snyder’s student teaching had been unsatisfactory for many reasons. However, it affirms that she was dismissed and barred from re-entering the school shortly after the high school staff discovered her MySpace photograph. The university backed the school authorities’ contentions that her posting was “unprofessional” and might “promote underage drinking.” It also cited a passage in the teacher’s handbook that said staff members are “to be well-groomed and appropriately dressed.”
Although social networking sites such as MySpace have privacy settings that can be adjusted to restrict public access, Snyder had not adjusted the privacy settings. She anticipated that her profile page would be seen by school authorities but felt that because she was an adult over 21 years of age she had nothing to hide.
Limited Right to Free Speech
The First Amendment to the U.S. Constitution guarantees all U.S. citizens the right to free speech. This right is therefore more explicit than the right to privacy. However, it too is limited.21 Again, government employees are more fully protected than those who work for private employers. For instance, an IRS agent who disagrees with the current president’s tax policies is perfectly free to say so publicly without fear of official retribution. However, if a Sears’ store manager publicly disagrees with corporate pricing strategy, Sears is free to discipline or terminate that manager. Thus, managers in the private sector can legally discipline employees who say something damaging to the company or its reputation. Similarly, a company can and should discipline an employee for using demeaning language that insults a person based on his or her race or gender. Texaco did not discipline the managers who insulted African American employees on the basis of race, which resulted in an expensive discrimination lawsuit.22 There are important exceptions to this situation, however. When employees reveal management misconduct to outsiders, they are engaging in whistle-blowing, which is a legal right under federal and some state laws. We discuss whistle-blowing in detail later in this chapter.
As with the right to privacy, managers should interfere as little as possible with employees’ free speech because this right is so deeply ingrained in U.S. culture. Managers need to balance the costs and benefits of extending versus not extending privacy and speech rights. For instance, we saw in Chapter 13 that e-mail has become a very popular method of communication. Should companies establish a policy allowing managers to read all their employees’ electronic communications? For example, an employer could have employees sign a consent form acknowledging the company’s right to access e-mail messages.23 Employees who know that managers are looking at their communications are likely to “censor” them to some degree, and the loss of candor may lead to less-than-optimal decisions. In addition, such a policy would injure the trust relationship between employees and their employer. Thus, any theoretical benefit a company might gain from such a policy—such as guarding against criminal activity—would almost certainly be offset by work-related and psychological costs.