{"id":832,"date":"2015-04-24T18:01:37","date_gmt":"2015-04-24T18:01:37","guid":{"rendered":"https:\/\/courses.candelalearning.com\/masterybusiness1xngcxmaster\/?post_type=chapter&p=832"},"modified":"2015-07-12T17:00:36","modified_gmt":"2015-07-12T17:00:36","slug":"reading-employee-rights","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/wmintrobusinessx51xmaster\/chapter\/reading-employee-rights\/","title":{"raw":"Reading: Employee Rights: Job Protection and Privacy","rendered":"Reading: Employee Rights: Job Protection and Privacy"},"content":{"raw":"

Job Protection Rights<\/h2>\r\nEmployee rights is defined as the ability to receive fair treatment from employers. This section will discuss employee rights surrounding job protection and privacy.\r\n
\r\n\r\nIf HR doesn\u2019t understand or properly manage employee rights, lawsuits are sure to follow. It's the HR professional\u2019s job to understand and protect the rights of employees. In the United States, the employment-at-will principle (EAW) is the right of an employer to fire an employee or an employee to leave an organization at any time, without any specific cause. The EAW principle gives both the employee and employer freedom to terminate the relationship at any time. There are three main exceptions to this principle, and whether they are accepted is up to the various states<\/span><\/span>:\r\n
    \r\n\t
  1. Public policy exception.\u00a0<\/strong>With a public policy exception<\/span>, an employer may not fire an employee if it would violate the individual state\u2019s doctrine or statute. For example, in Borse v. Piece Goods Shop<\/em> in Pennsylvania, a federal circuit court of appeals ruled that Pennsylvania law may protect at-will employees from being fired for refusing to take part in drug test programs if the employee\u2019s privacy is invaded. Borse contended that the free speech provisions of the state and of the First Amendment protected the refusal to participate. Some public policy exceptions occur when an employee is fired for refusing to violate state or federal law.<\/li>\r\n\t
  2. Implied contract exception.\u00a0<\/strong>In a breach of an implied contract<\/span>, the discharged employee can prove that the employer indicated that the employee has job security. The indication does not need to be formally written, only implied. In Wright v. Honda<\/em>, an Ohio employee was terminated but argued that the implied contract exception was relevant to the employment-at-will doctrine. She was able to prove that in orientation, Honda stressed to employees the importance of attendance and quality work. She was also able to prove that the language in the associate handbook implied job security: \u201cthe job security of each employee depends upon doing your best on your job with the spirit of cooperation.\u201d Progress reports showing professional development further solidified her case, as she had an implied contract that Honda had altered the employment-at-will doctrine through its policies and actions.<\/li>\r\n\t
  3. Good faith and fair dealing exception.\u00a0<\/strong>In the good faith and fair dealing exception<\/span>, the discharged employee contends that he was not treated fairly. This exception to the employment-at-will doctrine is less common than the first two. Examples might include firing or transferring of employees to prevent them from collecting commissions, misleading employees about promotions and pay increases, and taking extreme actions that would force the employee to quit.<\/li>\r\n<\/ol>\r\n
    \r\n\r\nTable 1.<\/span> State\u2019s Acceptance of Employment-at-Will Exceptions\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
    State<\/th>\r\nPublic-Policy Exception<\/th>\r\nImplied-Contract Exception<\/th>\r\nGood Faith and Fair Dealing Exception<\/th>\r\n<\/tr>\r\n<\/thead>\r\n
    Alabama<\/td>\r\nno<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\n<\/tr>\r\n
    Alaska<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\n<\/tr>\r\n
    Arizona<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\n<\/tr>\r\n
    Arkansas<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    California<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\n<\/tr>\r\n
    Colorado<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Connecticut<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Delaware<\/td>\r\nyes<\/td>\r\nno<\/td>\r\nyes<\/td>\r\n<\/tr>\r\n
    District of Columbia<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Florida<\/em><\/td>\r\nno<\/em><\/td>\r\nno<\/em><\/td>\r\nno<\/em><\/td>\r\n<\/tr>\r\n
    Georgia<\/em><\/td>\r\nno<\/em><\/td>\r\nno<\/em><\/td>\r\nno<\/em><\/td>\r\n<\/tr>\r\n
    Hawaii<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Idaho<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\n<\/tr>\r\n
    Illinois<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Indiana<\/td>\r\nyes<\/td>\r\nno<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Iowa<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Kansas<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Kentucky<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Louisiana<\/em><\/td>\r\nno<\/em><\/td>\r\nno<\/em><\/td>\r\nno<\/em><\/td>\r\n<\/tr>\r\n
    Maine<\/td>\r\nno<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Maryland<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Massachusetts<\/td>\r\nyes<\/td>\r\nno<\/td>\r\nyes<\/td>\r\n<\/tr>\r\n
    Michigan<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Minnesota<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Mississippi<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Missouri<\/td>\r\nyes<\/td>\r\nno<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Montana<\/td>\r\nyes<\/td>\r\nno<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Nebraska<\/td>\r\nno<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Nevada<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\n<\/tr>\r\n
    New Hampshire<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    New Jersey<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    New Mexico<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    New York<\/td>\r\nno<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    North Carolina<\/td>\r\nyes<\/td>\r\nno<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    North Dakota<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Ohio<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Oklahoma<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Oregon<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Pennsylvania<\/td>\r\nyes<\/td>\r\nno<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Rhode Island<\/em><\/td>\r\nno<\/em><\/td>\r\nno<\/em><\/td>\r\nno<\/em><\/td>\r\n<\/tr>\r\n
    South Carolina<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nNo<\/td>\r\n<\/tr>\r\n
    South Dakota<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Tennessee<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Texas<\/td>\r\nyes<\/td>\r\nno<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Utah<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\n<\/tr>\r\n
    Vermont<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Virginia<\/td>\r\nyes<\/td>\r\nno<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Washington<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    West Virginia<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Wisconsin<\/td>\r\nyes<\/td>\r\nyes<\/td>\r\nno<\/td>\r\n<\/tr>\r\n
    Wyoming<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\nyes<\/strong><\/td>\r\n<\/tr>\r\n<\/tbody>\r\n
    Bold text indicates a state with all three exceptions.<\/strong><\/th>\r\n<\/tr>\r\n
    Italic text indicates a state with none of the three exceptions.<\/em><\/th>\r\n<\/tr>\r\n<\/tfoot>\r\n<\/table>\r\n<\/div>\r\nWhen one of the exceptions can be proven, wrongful discharge<\/span> accusations may occur. The United States is one of the few major industrial powers that utilize an employment-at-will philosophy. Most countries, including France and the UK, require employers to show just cause for termination of a person\u2019s employment (USLegal, \u201cEmployment at Will<\/a>,\u201d accessed March 15, 2011).<\/span> The advantage of employment at will allows for freedom of employment; the possibility of wrongful discharge tells us that we must be prepared to defend the termination of an employee, as to not be charged with a wrongful discharge case.\r\n\r\nEmployees also have job protection if they engage in whistleblowing. Whistleblowing\u00a0<\/span><\/span>refers to an employee\u2019s telling the public about ethical or legal violations of his or her organization. This protection was granted in 1989 and extended through the Sarbanes-Oxley Act of 2002. Many organizations create whistleblowing policies and a mechanism to report illegal or unethical practices within the organization (Lilanthi Ravishankar, \u201cEncouraging Internal Whistle Blowing<\/a>,\u201d Santa Clara University, accessed March 15, 2011).<\/span>\r\n\r\nAnother consideration for employee job protection is that of an implied contract. It is in the best interest of HR professionals and managers alike to avoid implying an employee has a contract with the organization. In fact, many organizations develop employment-at-will policies and ask their employees to sign these policies as a disclaimer for the organization.\r\n\r\nA constructive discharge<\/span><\/span>\u00a0means the employee resigned, but only because the work conditions were so intolerable that he or she had no choice. For example, if James is being sexually harassed at work, and it is so bad he quits, he would need to prove not only the sexual harassment but that it was so bad it required him to quit. This type of situation is important to note; should James\u2019s case go to court and sexual harassment and constructive discharge are found, James may be entitled to back pay and other compensation.\r\n\r\nThe Worker Adjustment and Retraining Notification Act (WARN)\u00a0<\/span><\/span>requires organizations with more than one hundred employees to give employees and their communities at least sixty days\u2019 notice of closure or layoff affecting fifty or more full-time employees. This law does not apply in the case of unforeseeable business circumstances. If an employer violates this law, it can be subject to back pay for employees (US Department of Labor, \u201cWARN Fact Sheet,\u201d accessed March 15, 2011).<\/span>\u00a0This does not include workers who have been with the organization for less than six months, however.\r\n\r\nRetaliatory discharge\u00a0<\/span><\/span>means punishment of an employee for engaging in a protected activity, such as filing a discrimination charge or opposing illegal employer practices. For example, it might include poor treatment of an employee because he or she filed a workers\u2019 compensation claim. Employees should not be harassed or mistreated should they file a claim against the organization.\r\n\r\n<\/div>\r\n
    \r\n

    Privacy Rights<\/h2>\r\nTechnology makes it possible to more easily monitor aspects of employees\u2019 jobs, although a policy on this subject should be considered before implementing it. In regard to privacy, there is a question about\u00a0whether an employer should be allowed to monitor an employee\u2019s online activities. This may include work e-mail, websites visited using company property, and also personal activity online.\r\n\r\nDigital Footprints, Inc. is a company that specializes in tracking the digital movements of employees and can provide reports to the organization by tracking these footprints. This type of technology might look for patterns, word usage, and other communication patterns between individuals. This monitoring can be useful in determining violations of workplace policies, such as sexual harassment. This type of software and management can be expensive, so before launching it, it\u2019s imperative to address its value in the workplace.\r\n\r\nAnother privacy concern can include monitoring of employee postings on external websites. Companies such as Social Sentry, under contract, monitor employee postings on sites such as Facebook, Twitter, LinkedIn, and YouTube (Teneros Corporation, \u201cSocial Sentry Lets Employers Track Their Workers across the Internet<\/a>,\u201d accessed March 17, 2011).<\/span> Lawyers warn, however, that this type of monitoring should only be done if the employee has consented (People Management, \u201cEmployers Should Have Monitoring Policy for Social Networks<\/a>,\u201d accessed March 17, 2011).<\/span> A monitoring company isn\u2019t always needed to monitor employees\u2019 movements on social networking. And sometimes employees don\u2019t even have to tweet something negative about their own company to lose their job. A case in point is when Chadd Scott, who does Atlanta sports updates for 680\/The Fan, was fired for tweeting about Delta Airlines. In his tweet, he complained about a Delta delay and said they did not have enough de-icing fluid. Within a few hours, he was fired from his job, because Delta was a sponsor of 680\/The Fan (Rodney Ho, \u201cChadd Scott Said He Was Fired for Tweets about Delta<\/a>,\u201d Access Atlanta<\/em> (blog), accessed March 16, 2011).<\/span>\r\n\r\nThe US Patriot Act also includes caveats to privacy when investigating possible terrorist activity. The Patriot Act requires organizations to provide private employee information when requested. Overall, it is a good idea to have a clear company policy and perhaps even a signed waiver from employees stating they understand their activities may be monitored and information shared with the US government under the Patriot Act.\r\n\r\nDepending on the state in which you live, employees may be given to see their personnel files and the right to see and correct any incorrect information within their files. Medical or disability information should be kept separate from the employee\u2019s work file, per the Americans with Disabilities Act. In addition, the Health Insurance Portability and Accountability Act (HIPAA) mandates that health information should be private, and therefore it is good practice to keep health information in a separate file as well.\r\n\r\nFinally, drug testing and the right to privacy is a delicate balancing act. Organizations that implement drug testing often do so for insurance or safety reasons. Because of the Drug-Free Workplace Act of 1988<\/span>Requires that some federal contractors and all federal grantees agree they will provide a drug-free workplace as a condition of obtaining a contract.<\/span><\/span>, some federal contractors and all federal grantees must agree they will provide a drug-free workplace, as a condition of obtaining the contract. The ADA does not view testing for illegal drug use as a medical examination (making them legal), and people using illegal drugs are not protected under the ADA (US Equal Employment Opportunity Commission, \u201cThe ADA, Your Responsibilities as an Employer<\/a>,\u201d accessed August 1, 2011).<\/span>\u00a0However, people covered under ADA laws are allowed to take medications directly related to their disability. In a recent case, Bates v. Dura Automotive Systems<\/em>, an auto parts manufacturer had a high accident rate and decided to implement drug testing to increase safety. Several prescription drugs were banned because they were known to cause impairment. The plaintiffs in the case had been dismissed from their jobs because of prescription drug use, and they sued, claiming the drug-testing program violated ADA laws (Jackson lewis, \u201cEmployees\u2019 ADA Claims on Prescription-Drug-Use Dismissals Rejected by Federal Court<\/a>,\u201d December 1, 2010, accessed August 1, 2011).<\/span> However, the Sixth Circuit Court reversed the case because the plaintiffs were not protected under ADA laws (they did not have a documented disability).\r\n\r\nIn organizations where heavy machinery is operated, a monthly drug test may be a job requirement. In fact, under the Omnibus Transportation Employee Testing Act of 1991, employers are legally required to test for drugs in transportation-related businesses such as airlines, railroads, trucking, and public transportation, such as bus systems. Medical marijuana is a relatively new issue that is still being addressed in states that allow its use. For example, if the company requires a drug test and the employee shows positive for marijuana use, does asking the employee to prove it is being used for medical purposes violate HIPAA privacy laws? This issue is certainly one to watch over the coming years.\r\n
    \r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"344\"]\"Employee<\/a> Figure 1.\u00a0\u00a0Sample Policies on Privacy Relating to Technology[\/caption]\r\n\r\n<\/div>\r\n<\/div>\r\n
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    KEY TAKEAWAYS<\/h3>\r\n