CHAPTER  7

Employee Relations

The functional area Employee Relations will be 16 percent of the Associate Professional in Human Resources (aPHR) exam weighting. As you can see from the list provided in Chapter 2 of this book, there are 66 federal laws each HR professional must be able to recite. HR professionals are protectors of the employer’s liability, while also being protectors of employees’ rights. Those responsibilities can be met only if there is mastery of the legal requirements imposed by these laws and all similar state laws in addition. While your labor attorney will be your legal guide for your journey through the HR profession, you must be able to apply the laws in practical terms so managers and employees alike are able to perform their functions appropriately. We wish you a successful journey.

The Body of Knowledge statements outlined by HR Certification Institute (HRCI) for the Employee Relations functional area by those performing early HR career roles are as follows:

Knowledge of

•  01 Applicable laws affecting employment in union and nonunion environments, such as laws regarding antidiscrimination policies, sexual harassment, labor relations, and privacy (for example: WARN Act, Title VII, NLRA)

•  02 Employee and employer rights and responsibilities (for example: employment-at-will, privacy, defamation, substance abuse)

•  03 Methods and processes for collecting employee feedback (for example: employee attitude surveys, focus groups, exit interviews)

•  04 Workplace behavior issues (for example: absenteeism, aggressive behavior, employee conflict, workplace harassment)

•  05 Methods for investigating complaints or grievances

•  06 Progressive discipline (for example: warnings, escalating corrective actions, termination)

•  07 Off-boarding or termination activities

•  08 Employee relations programs (for example: recognition, special events, diversity programs)

•  09 Workforce reduction and restructuring terminology (for example: downsizing, mergers, outplacement practices)

Laws and Regulations

As with all the other chapters, you will find more details about laws that apply to employee and labor relations in Chapter 2. Look to that chapter for information each time you come across a reference to a law you don’t understand or have yet to hear about.

Federal Laws

Here are some of the federal laws that you will be responsible for understanding when you enter the HR profession:

•  The Consumer Credit Protection Act (1967)

•  The Copeland “Anti-Kickback” Act (1934)

•  The Copyright Act (1976)

•  The Davis-Bacon Act (1931)

•  The Dodd-Frank Wall Street Reform and Consumer Protection Act (2010)

•  The Economic Growth and Tax Relief Reconciliation Act (2001)

•  The Electronic Communications Privacy Act (1976)

•  The Employee Polygraph Protection Act (1977)

•  The Employee Retirement Income Security Act (ERISA) (1974)

•  The Equal Pay Act (EPA—amendment to the FLSA) (1963)

•  The FAA Modernization and Reform Act (2012)

•  The Fair and Accurate Credit Transactions Act (FACTA) (2003)

•  The Fair Credit Reporting Act (FCRA) (1970)

•  The Fair Labor Standards Act (FLSA) (1937)

•  The Foreign Corrupt Practices Act (1997)

•  The Health Information Technology for Economic and Clinical Health Act (HITECH) (2009)

•  The Health Insurance Portability and Accountability Act (HIPAA) (1996)

•  The Immigration and Nationality Act (INA) (1952)

•  The Immigration Reform and Control Act (IRCA) (1976)

•  The Labor-Management Relations Act (LMRA) (1947)

•  The Labor-Management Reporting and Disclosure Act (LMRDA) (1959)

•  The Mine Safety and Health Act (MSHA) (1977)

•  The National Industrial Recovery Act (1933)

•  The National Labor Relations Act (NLRA) (1935)

•  The Needlestick Safety and Prevention Act (2000)

•  The Norris-LaGuardia Act (1932)

•  The Occupational Safety and Health Act (OSHA) (1970)

•  The Omnibus Budget Reconciliation Act (1993)

•  The Pension Protection Act (2006)

•  The Personal Responsibility and Work Opportunity Reconciliation Act (1996)

•  The Portal-to-Portal Act (1947)

•  The Railway Labor Act (1926)

•  The Rehabilitation Act (1973)

•  The Retirement Equity Act (1974)

•  The Revenue Act (1977)

•  The Sarbanes-Oxley Act (SOX) (2002)

•  The Securities and Exchange Act (1934)

•  The Service Contract Act (1965)

•  The Sherman Anti-Trust Act (1790)

•  The Small Business Job Protection Act (1996)

•  The Social Security Act (1935)

•  The Tax Reform Act (1976)

•  The Taxpayer Relief Act (1997)

•  The Trademark Act (1946)

•  The Unemployment Compensation Amendments Act (1992)

•  The Uniformed Services Employment and Reemployment Rights Act (USERRA) (1994)

•  The Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) (1974) (as amended by the Jobs for Veterans Act in 2007)

•  The Wagner-Peyser Act (1993) (as amended by the Workforce Investment Act in 1997)

•  The Walsh-Healey Act (1936)

•  The Work Opportunity Tax Credit (1996)

•  The Americans with Disabilities Act (ADA) (1990) (as amended by the ADA Amendments Act in 2007)

•  The Civil Rights Act – Title VII (1964)

•  The Civil Rights Act (1991)

•  The Drug-Free Workplace Act (1977)

•  The Equal Employment Opportunity Act (1972)

•  The Genetic Information Nondiscrimination Act (2007)

•  The Lilly Ledbetter Fair Pay Act (2009)

•  The Pregnancy Discrimination Act (1977)

•  The Uniform Guidelines on Employee Selection Procedures (1976)

•  The Age Discrimination in Employment Act (ADEA) (1967)

•  The American Recovery and Reinvestment Act (ARRA) (2009)

•  The Consolidated Omnibus Budget Reconciliation Act (COBRA) (1976)

•  The Older Workers Benefit Protection Act (OWBPA) (1990)

•  Executive Order 11246: Affirmative Action (1965)

•  The Family and Medical Leave Act (FMLA) (1993)

•  The National Defense Authorization Act (2007)

•  The Patient Protection and Affordable Care Act (PPACA) (2010)

•  The Worker Adjustment and Retraining Notification Act (WARN) (1977)

State Laws

Each state can pass its own labor and employee relations laws. And many have. At the state level you will find such coverage as these, governing the following topics:

•  Expansion of benefits beyond those provided for in federal law

•  State disability insurance programs

•  Unemployment insurance programs

•  Paid sick leave

•  Equal employment opportunity protections for classes beyond those in federal law

•  Wage and hour requirements for overtime rates and rules of application

Federal Regulations

When Congress passes a law, it is up to the appropriate department (or agency) such as the U.S. Department of Labor (and the National Labor Relations Board) to develop and publish proposed regulations that will implement the new law. Once the proposed regulations are published, there is a requirement for a public comment period. At the close of the public comment period, the department will review the comments, make any changes it believes appropriate in the regulation proposal, and publish either the final regulations or a revised proposal with a new public comment period. Once published as final, the regulations will carry an implementation date (or dates for individual components of the law’s requirements). Once that date has arrived, all employment organizations subject to the new law and regulations will be obligated to comply.

Rights and Responsibilities

As with any relationship, each party must meet certain rights and certain responsibilities for the relationship to continue in a healthy and productive way.

Employer

Employer responsibilities include such things as treating employees in accord with the principle of “good faith and fair dealing.” It is more than an ethical requirement. Good faith and fair dealing is a legal covenant. Employers are expected to honor commitments made to employees when employees are convinced to act based on those employer promises. For example, when a manager interviews the best qualified job candidate and says, “We really want you to move out to our state and be part of this organization. We will have a job for you for as long as you want it,” the employer has enticed the candidate into action based on the promise of permanent employment. If the employer cuts the new employee off the payroll when downsizing the organization, it has broken its obligation under the covenant of good faith and fair dealing. The result can be a lawsuit based on contract law.

Employer rights include the expectation that employees will work for a full 8 hours each day they are scheduled for 8 hours. The employer has a right to ensure worker behavior while on the job meets with policy requirements, and the employer has the right to inspect employee work product, work space, and communication related to work.

Employee

Employees have the right to expect they will be treated with good faith and fairly by their employer. They have the right to proper wage calculation and prompt payment. They have the right to full benefit provisions as provided by organizational policy and contract provisions.

Employees also have responsibilities. Those include the responsibility to give a full 8 hours of effort for an 8-hour workday, compliance with all employer policies, and treatment of everyone in the workplace with civility.

Employee Feedback

Employee feedback is necessary to assess many conditions in the workplace, including morale, job satisfaction, and ideas for innovation and improvements. The communication cycle depends on feedback to assess the quality of the communication. Without feedback, there is only uncertainty about the effectiveness of the communication effort.

EXAM TIP    Since employee feedback is so critical to successful business operations today, you can expect that the certification exam will contain questions about the methods of collecting employee feedback and how it can be used.

Employee Surveys

There are a host of methods for assessing employee morale, work satisfaction, and communication quality and effectiveness. One method that is held as extremely helpful in providing direct feedback is the survey format. Employee surveys are a tool that can gather information directly from the employee body and can be applied in a timely way immediately following a major employment event. For example, when new benefit programs are introduced, surveys can be used to identify employee reactions to the new offerings and the ease with which they have access to those programs. Surveys are most commonly used to determine how engaged workers are within the organization.

Attitude Surveys

Employee attitude surveys can be done by telephone, by mail, or online. Surveys that assess employee attitudes are usually prepared by professional consultants (psychologists) to assure that information can be gathered that will actually be useful. Employee attitude surveys are used to improve morale, productivity, and engagement and to reduce turnover by gathering actionable feedback on job experiences.

Topics covered in employee attitude surveys can include job-related training, supervisor treatment, employment policies and their impact on individual employees, satisfaction with compensation programs, and satisfaction with benefit programs such as healthcare insurance and vacation policies. At some time, it is generally helpful to get feedback about employee attitudes on all topics that touch the lives of workers.

360/180-Degree Surveys

Taken literally, 360-degree surveys ask everyone around an employee to provide feedback about that person’s competencies, behaviors, and contributions. In one common application, management people use these surveys to get feedback from their subordinates as well as their peers and supervisors. Usually feedback is provided anonymously.

Nonmanagement individuals can’t literally be the subject of a 360-degree feedback program because they have no subordinates, so 180-degree surveys are used where only their manager, co-workers, and internal customers are asked to provide input. Peers and supervisors can offer input to nonmanagement people that can help with interpersonal skill development and grooming for promotional opportunities.

Stay Interviews

A stay interview is a one-on-one meeting between a manager and a highly valued employee who may be at risk for leaving the organization. The purpose is to identify the factors that will entice the employee to stay with the employer rather than change jobs. If it is possible to identify conditions or “triggers” that might cause the employee to leave, they may be preventable. These meetings can be used by any sized organization to increase retention of people who are major contributors to achieving objectives. While it is not always possible to meet all conditions, just listening to the employee can go a long way to making them feel that they are valued by the employer.

Processes for Obtaining Feedback

There may be dozens of ways to collect feedback from employees. Here are some of the most common processes used today. All have been used for decades. Yet they remain the best tools for gathering input from groups of people.

Paper Surveys

Paper and pencil seem like the most basic approach to recording opinions. Yet that process is still one of the most effective. Properly prepared questions will yield a wealth of information that can be digested and then produce actionable items. If there is a new policy to be considered, employee attitudes about such a change can be invaluable before the change is made. Avoiding the negatives of decisions that employees view as undesirable is much preferable to correcting the bad decision after it has been implemented.

Even though we live in a digital age, there are many employees, and even entire workplaces, that lack computers. Factory workers are a good example. In some cases, computers may be brought in and set up on kiosk displays to overcome that deficiency. In other instances, introducing computers may not be an option. So, paper and pencil surveys remain the standard. Employees may be allowed work time to complete the surveys, or they may be allowed to take them home and return them later. Making survey responses anonymous can be achieved if employees return them by mail to an address that is not a company work location. Having a third party summarize the responses can create a wall against identifying individual responses.

Paper surveys can cover a wide range of issues. And responses can be offered on a scale such as “more likely” to “less likely” or “strongly agree” to “strongly disagree.” Some vendors offer standard attitude surveys that can lower the cost of gathering input. Others offer support in creating customized surveys that can raise the cost but also increase the value of specific information about workplace issues.

Computer-Based Surveys

When computers are available, presenting surveys digitally can be a good option. Advantages include the speed of response summaries and the ability to track which employees have responded and which have yet to log on and take the survey. That isn’t the same as tracking individual responses. Just knowing who has yet to participate can increase the feedback percentage substantially.

Computer-based surveys can be made available on employee personal computers so the surveys can be accessed from home. Usually, when computers are made available to workers on the job, the survey is taken at work during work time.

Computer-based surveys can often be accessed from smart phones, laptops, tablet computers, or desktop computers. That flexibility of access can increase initial participation rates substantially.

Focus Groups

For an in-depth exploration of issues and testing of alternatives, focus groups offer an excellent opportunity to probe initial responses and go into more detail. With a properly skilled facilitator, focus groups can provide excellent information about employee beliefs. For example, when options exist for increasing employee benefits, getting employee input about preferences can be extremely helpful in the decision-making process. Perhaps the company has budget available to increase either paid-vacation allotment or retirement pay computations. Which would employees prefer? How strongly do they feel about their preference? Would they actually like a third or fourth alternative? Focus groups provide the environment in which to probe those choices. The downside of focus groups is that they are not anonymous. So, they do not apply in every situation.

Workplace Behavior

Behaviors are things that we do or say. Behaving is the act of saying something or doing something. There are good behaviors and bad behaviors from the viewpoint of an employer. Workplace policies usually include a description of acceptable behaviors and/or unacceptable behaviors. Workplace behavior is a factor to be considered in a work performance evaluation.

Attendance and Absenteeism

Actually showing up to work and being on time is viewed as a requirement by many employers. An employee who can’t do one or the other may not be acceptable in the eyes of the employer.

Identifying Standards

Each employer must establish its own standards for attendance and punctuality. That means it must answer questions like “How many minutes after the beginning of a work shift should be allowed before an employee is considered tardy?” Standards for employee absence can be developed by using questions like “How many days will we allow an employee to be missing from work without proclaiming them to have an absenteeism problem?”

Establishing standards is a key step in managing these two behaviors that have a great impact on work performance. Even in organizations that have adopted an “unlimited vacation” policy, there must be some limit. If not, the standard is wide open, and employees can be absent for as much of their work year as they wish. The policy then is really a “not to exceed” limit that can be substantial. For example, an “unlimited vacation policy” can permit up to 90 days in any given calendar year. And, the quantity of days that will be paid can be determined based on company tenure, like in other circumstances. If an employee decides to take 6 or 7 months off work, is that permissible under the policy? If not, when does it cross the line we know as behavioral standard?

Violation of Standards

So, when the standard is not met, what happens? Sometimes nothing. Appropriately, what should happen is disciplinary action. That means beginning with a discussion and working through the progressive discipline process until the problem is solved because the behavior has changed. When the employee begins showing up for work again and/or begins arriving on time each day, the behavior has changed, and it is no longer necessary to move further on discipline progression.

As with all other disciplinary programs, these should be consistent from one situation to another when circumstances are the same. Treating employees inconsistently can result in charges of illegal discrimination.

Improvement Programs

An improvement program is a formalized approach to correcting inappropriate behavior. If an employee needs to improve attendance, then it may be necessary to create an improvement program for his or her attendance problem. It might look something like this:

Violation of Code of Conduct

A Code of Conduct is a list of behavioral expectations the employer has for each employee. Violations of the code of conduct can fall along a spectrum from “minor” to “worthy of immediate dismissal.” All of these relationships should be identified in the employer’s policy manual. That way there are no surprises for any employee.

EXAM TIP    Even in today’s work environment of greater sensitivity to employees and their needs, it is still necessary for employers to establish and maintain employee codes of conduct. You should expect that there will be questions on the exam about what a code of conduct is and how it should be administered.

Employee Behavior

We have already reviewed the nature of behavior. When someone does or says something that is unacceptable, there should be consequences of some sort. Minor violations of a code can include the following:

•  Frequent tardiness

•  Frequent absence (excused, unexcused, or both)

•  Minor insubordination

•  Pilferage from employer supplies

•  Frequent incomplete or inaccurate work product

•  Abuse or misuse of office equipment

•  Arguments with co-workers

Moving up along the scale of unacceptable behavior, serious code of conduct violations might include the following:

•  Bringing weapons to work

•  Threats of violence or actual violence against others in the workplace

•  Blatant insubordination

•  Embezzlement or misappropriation of company funds

•  Theft of equipment

•  Filing false reports

Serious infractions of the code of conduct can result in discipline that could even include immediate termination for the most serious of violations. Workplace violence is an example of behavior that can result in immediate termination. Less serious infractions can result in progressive discipline that begins at a written warning or even a job-in-jeopardy warning.

Ethics

Unethical behavior is something most employers abhor. Given the U.S. laws that prohibit kickbacks to government representatives or bribes to foreign institutions, ethics is a high-level expectation in the employment relationship. It is not only compliance with the letter of the law but the intent of the law that counts.

Here are some examples of employer expectations that might be included in a code of conduct. Each of these would be a violation of that code of conduct.

•  Misusing company time (not focusing on work production for the entire workday)

•  Bullying or other abusive behavior

•  Theft of any kind (from supplies to misusing a company car)

•  Lying to anyone in the workplace about anything

•  Taking credit for work done by someone else

•  Undermining or sabotaging someone else’s work

•  Following your boss’ instructions even though you know it to be wrong

•  Deliberate deception of a customer, vendor, media representative, boss, or co-worker

Employee Conflicts

It is natural that people will disagree from time to time. This happens in the workplace as well as at home, in clubs, and at the ballpark. When these disagreements happen at work, it is incumbent upon all parties to work civilly with one another to resolve the problem.

Work Assignments Conflicts

If a boss tells a worker to do something that is considered a bonus or premium assignment, another employee may actually prefer that work assignment. It is possible that an argument can arise between the two employees over the work assignment.

No matter what the argument is about, the employer’s expectation should be that it will be resolved without resorting to bad behavior on the part of any participant.

Personal Conflicts

Sparks can fly when two people have a conflict resulting from personal involvement either in or out of work. If two co-workers want to date the same person, it is easy to imagine that such a conflict can result in heated arguments or worse. When two or more people want the same special work assignment, it is easy to imagine another argument. It doesn’t have to be that way, but often is. It is the responsibility of all employees to act in a civil manner to every other person in the workplace. Allowing escalation of emotions during such conflicts is unacceptable to most employers. That is because escalating emotions lead quickly to escalating behavior issues. First, words are said that carry strong impact, and then an actual physical knock-down, drag-out fight takes place with physical impact. None of that is desirable or permitted by most employers.

Workplace Harassment

Harassment can take many forms. What started as sexual harassment has expanded to include racial harassment, religious harassment, national origin harassment, and even veteran harassment. All are illegal, not just undesirable. Under federal laws, it is the employer’s responsibility to address the harassment problem with the offending employee. Under some state laws (such as California), it is the employer’s responsibility to be sure the harassing behavior does not occur again. That goes beyond simply addressing the problem.

Both employees and job applicants are included in the legal protections against harassment on the job.

Sexual Harassment

Sex discrimination is prohibited by the Civil Rights Act of 1964. And nowhere in that law will you find “sexual harassment” as prohibited behavior. Sexual harassment has been defined by the U.S. Supreme Court over the years since the law was enacted. (The U.S. Equal Employment Opportunity Commission [EEOC] guidance also offers a great deal of employer information regarding sexual harassment.) Now we know that sexual harassment is behavior of a verbal or physical nature that is unwelcome. There are two types of sexual harassment defined in case law, as shown in Table 7-1.

Table 7-1 Types of Sexual Harassment Defined in Case Law

The emergence of sexual harassment as a workplace problem has resulted in the elimination of cheesecake and beefcake photographs from office walls, prohibition of sexually explicit cartoons from corkboards, and banning of sexually explicit jokes and stories in the workplace.

Sexual Orientation Harassment Also defined in case law is the issue of sexual orientation harassment. When lesbian, gay, bisexual, transgender, or queer (LGBTQ) individuals are harassed because of their sexual orientation, the behavior is illegal. (See Appendix B, “Federal Case Laws.” Look for Oncale vs. Sundowner Offshore Services and Price Waterhouse vs. Hopkins.) All forms of sexual orientation are protected from harassment. That includes heterosexual, homosexual, and bisexual.

Transgender Harassment When people strongly identify with a different gender than they were assigned at birth, they may dress as their rightful gender or even have surgery to physically switch genders. Harassment of transgender employees is illegal. Employers should recognize their responsibility to protect these workers from such attacks.

EXAM TIP    While sexual harassment is important and must be prevented in the workplace, it is by no means the only type of harassment. Expect that the certification exam will also have questions dealing with the other types of workplace harassment hazards.

Male vs. Female Harassment While it might seem pretty basic, harassment because of sex still happens in our American workplaces. In fiscal year 2015 the EEOC received 26,396 charges of sex-based discrimination in the workplace. Of those, 3.7 percent following the agency’s investigation had reasonable cause, and 62.1 percent were closed with the agency having found no reasonable cause. The balance of the cases were closed administratively or through conciliation. Some peripheral issues are reproductive protections on the job, compensation differences, and caregiver responsibilities.

Racial Harassment

Disparate treatment based on race causes resulted in 31,027 EEOC charges in fiscal year 2015. Employment actions that were covered in alleged discrimination cases included the gamut from hiring and firing to work assignments, training, and promotions. That represented 34.7 percent of the charges received by the EEOC in fiscal year 2015.

Religious Harassment

In fiscal year 2015 the EEOC received 3,502 charges of illegal religious discrimination. That is 3.9 percent of all charges that year. When an employee is harassed and can’t complete their work assignments because they are a target of jokes and other harassing behavior due to their religion, there may be illegal discrimination going on. Religious harassment has seen a slight increase since September 11, 2001. The same types of problems result in verbal, visual, and physical representations that are unacceptable in the workplace.

National Origin Harassment

National origin harassment amounted to 9,437 EEOC cases in FY 2015. This includes behaviors that poke fun at people because of their heritage. It has frequently involved poor treatment of Middle Easterners and Mexicans. It results from the visual appearance of individuals in most instances.

Other Types of Harassment

Over time, the EEOC has been sculpting definitions of harassment that are broader and broader. It began with sexual harassment and has since grown to include race, religion, and the following categories as well.

Bullying behavior on the job can constitute harassment if it is persistent and interferes with an employee’s ability to perform his or her job duties. Bullying can be described as browbeating, intimidating, antagonizing, heckling, persecuting, pestering, or tormenting. It’s all bad any way you look at it. Management has a responsibility to intervene and end the bullying behavior. Progressive discipline is usually recommended in such cases.

Disability Harassment While arguably the cruelest of all harassment, disability harassment can be aimed at either mental or physical disability. Remember that disability status can include any of us at any time. It is usually the most transmutable category on the list. People don’t change their race, color, or national origin. They can change their religion, but it isn’t common. They can change their sex, but it is infrequent in our population. But anyone can be disabled by accident or illness at any time. Jokes, snide remarks, cartoons, graffiti, practical jokes, or other teasing or criticizing based on disability status is illegal under federal law for covered employers according to the EEOC.

Age Harassment Age jokes are thought to be the most benign among other possible targets. That is unless you happen to be the older person to whom the joke would apply. Then it’s not so funny. A persistent pattern of such jokes can constitute harassment, and employers have an obligation to stop such behavior without delay. Any of the other forms of age harassment are also inappropriate and illegal under EEOC rules.

Veteran Status Harassment When someone has served the country by placing themselves in harm’s way as a member of the military, it is hard to imagine that they would become the target of harassing behavior on the job. Yet, it happens. It happened a lot at the conclusion of the Vietnam War. And it still happens today. HR professionals are responsible for training managers and employees on the prevention of such behavior in the workplace. There is nothing funny about harassment, regardless of the intent of those participating.

Harassment Based on Other Factors The EEOC says any individual characteristic protected by one of the federal equal opportunity laws can be the basis for a complaint of workplace harassment. Just because it isn’t sexual harassment doesn’t mean there is a green light for the behavior. It is still not welcome behavior in the workplace, and HR professionals play an important role in helping control it. Medical conditions fall into this category, even if they do not rise to the level of a disability.

Complaints and Grievances

Several conditions impact how employee complaints and grievances are handled within an employer’s organization. One large determining factor is whether the employer has labor unions involved in the workplace. Labor agreements/contracts (or memorandum of understanding) will usually contain a structured method for dealing with employee grievances. They designate steps for handling complaints about working conditions or other provisions of the labor union contract. Complaints about issues outside of working conditions are not usually addressed within the confines of a labor union contract. Those are handled by other employer policies.

Methods of Investigation

Investigations are appropriate in several circumstances within an employer’s organization. They can be helpful in a grievance handling effort and are essential in determining the validity of discrimination complaints. Whenever there is a need to determine facts surrounding a complaint, an investigation should be conducted.

Internal HR professionals are almost always given authority in state and federal law to conduct an investigation on behalf of the employer. If the organization wants to have an external investigator handle the fact finding, there are some limitations imposed by certain state laws. In California, for example, external investigators who are not licensed attorneys must be licensed private investigators. Other states have different requirements.

Legal advisors suggest that internal attorneys are not the best people to conduct investigations because they could be placed in the position of having to testify to their investigative activities while still providing legal advice to their employer.

Whoever is designated as the investigator should normally follow these steps:

1. Written complaint The employee should write out a complaint that states he or she was treated differently from others in similar situations based on a legally protected category and that category should be identified. If he or she can do this, he or she will have provided a prima facie case, which means it sounds good on its face.

2. Interviews Next it is necessary to interview the complaining employee, the supervisor or management person who is named as the offending decision maker, and any witnesses the employee says were there at the time. Sometimes, it is a peer who has been the offending party. When that is the case, at least one interview of the offending party should be scheduled. The investigation should follow whatever leads are uncovered until the investigator is satisfied that all the facts have been uncovered that can be uncovered. Each step of the process should be documented in writing and maintained in a complaint investigation file.

3. Determination Once the facts have been determined as best as possible, a determination should be made about the validity of the complaint. If the complaint is valid, a remedy should be sought based on both legal and reasonable requirements. If the complaint is determined not to have valid grounds, that will be the determination. The decision should be documented in writing and included in the investigation folder.

4. Feedback The employee who filed the complaint should be given feedback about the investigation results and any decisions made as a result. It may or may not be advisable to provide specific information about disciplinary action taken against an employee. Your legal advisor can give you guidance about that in your specific circumstances.

Use an Internal Investigator (HR or Legal Professional)

It is usually less expensive to use internal personnel than hire someone from outside to conduct an investigation. Whether to spend the extra money will depend on the sensitivity of the situation and the availability of internal people who would otherwise do the work.

HR professionals should be trained by a legal expert in the process of investigation. HR professionals should not be asked to conduct investigations without proper training. Employee complaints can sometimes jump from simple and basic to complex and legally challenging in a brief time. Without proper training, an investigator can bring liability to the employer rather than offer resolution with the lowest possible cost.

Hire an Outside Investigator (Consultant, Private Investigator, Attorney)

There are some circumstances when an outside investigator is appropriate. That investigator can be an attorney or a licensed private investigator. HR consultants are sometimes used when a licensed private investigator is not required. Some states, such as California, require that the investigator be licensed by the state if the work to be done is an “investigation.” Using lawyers is a good idea if the investigation is legally sensitive and the lawyer used will not also be handling the case as company attorney. Be guided in choosing which outside resource is best for you in your circumstance by your internal HR management and company legal department.

Expert witnesses are sometimes hired by employers and their legal representatives to support their position in lawsuits. When that happens, the people hired as experts offer knowledge and experience that fit the issues being disputed.

Using an attorney can be beneficial in many ways. One key benefit is the potential for attorney-client privilege. Communication between an attorney and a client can be protected from disclosure if the attorney is dispensing legal advice in that conversation. The communication could be verbal or written. When consultants prepare fact-gathering documents or reports under the instructions of an attorney, those documents may be protected because they were prepared for use by legal counsel. Critical self-analysis, such as preparing statistical testing for disparate impact in employee hiring or promotion, can be helpful to a plaintiff in a legal challenge. If the analysis is prepared for use by legal counsel, it may be protected from disclosure even when specifically requested by the plaintiff. Your attorney can provide more help in understanding how to guard against disclosing documents containing sensitive or proprietary information.

EXAM TIP    Grievance processing within provisions of a union contract is usually highly structured. Handling employee complaints in a nonunion environment will also take the same type of steps, but may not be quite as structured.

Grievance Processing

Grievance handling will always be a segment of a union agreement (Memorandum of Understanding – (MOU) or a Collective Bargaining Agreement – (CBA)). It will specify the grievance steps and how each will be handled.

Here are the typical grievance-handling steps you will find in most organizations:

1. Written complaint The employee describes in writing what is causing the upset or discontent.

2. Supervisor-level discussion The employee’s supervisor (or another group’s supervisor) will discuss the complaint with the employee, reviewing facts and reasons for the decision that resulted in the complaint. If the explanation is sufficient, the grievance ends here. If the employee presents information that causes the decision to be changed, the grievance can also end here.

3. Management or HR-level discussion If the supervisor and employee can’t agree, the next discussion is with a management person and/or the human resource department. If an agreement is reached, the matter is settled. If not, it can go to a final step with senior management.

4. Senior management The final step is usually with a senior management official. Sometimes that is the chief executive officer, but it can be with any other designated official who has authority to make any adjustments or decisions deemed appropriate in settling the grievance. If no agreement is reached at this step, the employee will have to either drop the complaint or seek legal advice in a potential civil suit.

Union Grievance Procedures

If your union contract grievance procedures differ from these four stages, be sure to follow your required steps. If other requirements exist in your union contract, you should follow those provisions also. Get help from senior HR managers or your company legal staff if you need it. See the four basic steps outlined earlier for typical stages of grievance processing. Union representation can be sought to provide third-party oversight and a fair outcome for both the employee and company.

In 1975, the U.S. Supreme Court handed down an opinion in a case that said employees have a right to union representation at investigatory interviews. Those have become known as Weingarten Rights.¹ The supervisor has no responsibility to advise the employee of his or her rights. The employee must claim the right to have representation.

Nonunion Grievance or Complaint Procedures

Remember when we discussed the doctrine of good faith and fair dealing? Well, the same principles should apply to any system an employer develops to handle nonunion complaints. In every instance, the company should be seen as treating employees fairly and in good faith. The steps can easily follow those used in union grievance handling:

1. Submit a written complaint.

2. Conduct a supervisor-level discussion of the complaint.

3. Have a discussion with HR or the supervisor’s management level.

4. Have a resolution reached by senior management.

If there is a provision either in the union contract or in company policy for arbitration, that would be the final step in both discussion ladders.

Progressive Discipline

Progressive discipline is an organized process that permits employers to meet the obligation for good faith and fair dealing with employees.

Identifying Steps of Discipline

Although each situation will be assessed based on its own requirements, there are generally four major steps in progressive discipline. Sometimes, a situation will require more than one oral warning or more than one written warning. Be sure that each employee is treated as others in similar circumstances have been treated in the past. Length of service (time with the employer) will influence the steps to be taken in progressive discipline. Generally speaking, the longer someone’s service, the more time should be permitted for demonstrating acceptable behavior and meeting of standards.

Oral Warning

When some behavior has been unacceptable, a supervisor has an obligation to address the employee and issue an oral warning. This is a statement such as “This is a formal warning that your attendance is unacceptable and any other absences on your part will result in further disciplinary treatment.” Rather than say “will result,” it is acceptable to say “may result” to permit greater flexibility in handling things as they develop further. Sometimes, more than one oral warning will be appropriate. This is particularly true when the infraction is minor in nature.

Written Warning

When the time has come and behavior has not improved since the oral warning, the next step is a written warning. It can be a simple memo, handwritten or electronically generated, as company systems dictate. It should include a statement such as “This is a formal written warning that further disciplinary action will/may result if you have additional absences during the coming 60 days.” Saying “may” will permit management to make allowances if there is death in the employee’s family or a leave of absence is required for medical reasons. It is sometimes necessary to use this step more than once. Presume that the employee maintains perfect attendance during the 60-day improvement period but then slips back into the old pattern of absence after that. Rather than begin again with oral warnings, it is possible to issue another written warning with expectations for a new improvement period.

Suspension

Following a written warning, a suspension is sometimes the next step. Suspensions are usually issued in a “without pay” condition. That is to deprive the employee of some income to bring home the seriousness of the problem. Suspensions can be influenced by state laws that govern treatment of exempt versus nonexempt workers. Pay treatment may not be impacted in some states for exempt employees.

The length of a suspension will depend on how others have been treated in similar circumstances in the past and whether a union contract has influence in the situation. The length of a suspension should match the level of infraction and be mitigated by the employee’s length of service.

It is common for a “job in jeopardy” warning to be issued along with the notice of suspension. It can say something like “This is a final warning that your job is in jeopardy and you may be dismissed from the payroll if you do not meet the company’s attendance standards during the coming 60-day period.” Almost always a final warning needs to be issued even if there is no suspension. A final warning puts the employee on notice that they will be removed from the payroll if they don’t meet expectations for behavior in the future.

Termination

The final step in any disciplinary sequence is termination from the payroll. There are fancy terms used for it, but the end result is always the same. The employee is fired, sacked, terminated, or let go. It all means the same. The employee is being released for cause. The cause is failure to meet behavioral standards of the job and the employer. Termination for cause can influence the eligibility of an employee for unemployment insurance, depending on the state and its rules for benefit payment.

Documenting Progressive Discipline

The holy grail for HR professionals is documentation. That is the single most important component of any supervisor and management training program. Regardless of the training topic, documentation expectations should always be on the agenda. As the saying goes, “If it isn’t documented it didn’t happen.” Think about the likelihood that a jury will side with an employer over the employee when the employer didn’t take the time to properly document the discipline that was applied to the situation. It’s the big guy against the little guy, and juries usually like the little guy. So, the employer must be prepared to support its actions with appropriate documentation of its good faith and fair dealing.

EXAM TIP    Progressive discipline is a key example of how employers meet their requirement for “good faith and fair dealing” under U.S. law. Knowing the application of progressive discipline is only part of your exam preparation. Knowing why it is important is even more critical.

These days no one thinks twice about video recording events and posting them on social media. Audio and video recordings are covered by federal and state law. In employment terms, it takes only one party to permit recording of a conversation. That is known as the one-party consent rule. Federal law requires only one-party consent.² When you hear a telephone message that says, “This call may be monitored or recorded for training and quality purposes,” that is designed to achieve two-party consent. If you don’t object to the recording, you are consenting to it being done. Eighteen states and the District of Columbia have their own laws about recording voice or video. Many of them require two-party consent.³

Timing of Documentation

Documentation should ideally be prepared immediately after the event. If a supervisor has a conversation with a worker to point out a safety violation, that conversation should be documented in writing as soon after the conversation as possible.

Some people think it is alright to prepare documentation only when a formal complaint or lawsuit has been filed. Worse, some people believe it is alright to post-date the documentation. That is never OK. If documentation was not prepared when the event took place, prepare it as a reflective document with the current date to provide an honest picture of when it was created.

Content of Documentation

Complete documentation can be brief. It doesn’t have to go on for pages if that is not necessary to log what happened. All documents that meet the following content requirements will be considered satisfactory:

•  Who? What were the names of individuals involved in the incident?

•  What? What happened?

•  When? When did this happen?

•  Where? Where and under what conditions did this event take place?

•  How? How did it happen? Were there events that led up to the one being documented?

Answer those primary questions in your documentation and you will have touched all the bases. The only remaining requirements are the date the documentation is being prepared and the name/signature of the person creating it.

Retention Requirements

“EEOC Regulations require that employers keep all personnel or employment records for 1 year. If an employee is involuntarily terminated, his/her personnel records must be retained for one year from the date of termination.

“Under ADEA recordkeeping requirements, employers must also keep all payroll records for 3 years. Additionally, employers must keep on file any employee benefit plan (such as pension and insurance plans) and any written seniority or merit system for the full period the plan or system is in effect and for at least one year after its termination.

“Under Fair Labor Standards Act (FLSA) recordkeeping requirements applicable to the EPA, employers must keep payroll records for at least 3 years. In addition, employers must keep for at least 2 years all records (including wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements) that explain the basis for paying different wages to employees of opposite sexes in the same establishment.

“These requirements apply to all employers covered by Federal anti-discrimination laws, regardless of whether a charge has been filed against the employer.”⁴

Federal contractors subject to affirmative action regulations must retain all employment records for at least 3 years unless they have fewer than 150 workers on the payroll. Then, the retention requirement is 2 years.⁵ Be aware that “employment records” include all documents related to employment such as job requisition, resumes, job applications, interview notes, supervisor notes, and personnel files.

State retention requirements can vary substantially from federal requirements. It is best that you determine the retention periods in states where you have work locations. Seek help from your labor attorney if you need it.

When to Escalate Corrective Action

There comes a time when it may be necessary to move corrective action approval to a higher level. For example, when an employee has a given number of years of service, the employer may place a policy requirement on progressive discipline that more senior management approval is needed before implementation of the discipline.

When a case arrives at a deadlock in attempting to gain consensus agreement, it may be necessary that someone more senior in management will be needed to break that deadlock.

If there appears that there may be a conflict of interest or a desire to avoid a conflict of interest, senior management approval or intervention might be the right action to request.

Escalation can be within the employee’s own chain of command, or it could be within the HR department’s chain of command. The larger the organization, the more need there is for such policies to be prepared and published. Escalation is a policy issue, not a legal issue. However, the more senior people involved, the greater the employer’s weighted consideration of events and consequences.

Standard Practices and Procedures

When events move in a normal, expected fashion, a normal response can be sufficient. In other words, standard circumstances require standard responses. It is normal to have written policies and procedures that deal with how things normally happen. That is because most instances will require similar treatment. It is when things jump out of the “normal” box and into the “unusual” box that you must make adjustments.

Unusual Circumstances

It is when circumstances fall outside the routine that escalation to higher management may be required. Cases such as these might fall into that category:

•  A 25-year veteran of the company suddenly develops an absence problem. (Requiring senior management approval on any disciplinary program would acknowledge the duty the company has to this senior employee.)

•  A relatively new employee has passed the training period but now has a child who was seriously injured in a bicycle accident. Senior management approval may be required to lift the normal leave of absence qualification threshold.

•  An employee with 5 years of service has had a confrontation with her supervisor over work quality requirements. Later it is discovered that she has cancer and the stress of her treatment and its medication is causing behavioral changes. A more senior management person may be needed to approve less severe treatment of the insubordination incident.

Termination

When the company is going to initiate the involuntary termination of a person’s employment, it is a good idea to require management review and approval. The level of approval required for the review will in large part depend on the size of the organization.

Termination should be taken reluctantly by any employer. It should be the final result of rehabilitation efforts. And, it can also be the immediate reaction to such serious behavior that there is no possible way the employee can be allowed to remain on the payroll. An example of such behavior is violation of the no weapons policy. If an employee walks into the workplace with a hunting knife in hand, waves it around, and threatens people, that is behavior that should usually result in immediate dismissal.

Voluntary Terminations

Voluntary terminations are payroll separations that are initiated by the employee without employer intervention. These include employee death, resignation, and retirement.

Death Death may not seem like a voluntary separation from the payroll, but it is most often not initiated by the employer, either. Death is treated as voluntary when it comes to payroll separation.

Resignation Resignation is voluntary unless it constitutes a constructive discharge. Constructive termination occurs when the employer makes working conditions so intolerable the employee has no alternative but to resign. In fact, constructive discharge is not a resignation but a forced involuntary termination.

A true resignation is voluntary. It results from personal needs like a relocation brought on by a spouse’s change in employment, return to school as a full-time student, or a simple desire to travel and see more of the world. It could also result from the employee receiving a job offer from a different employer. If the resignation is truly voluntary, it can be recorded that way.

Retirement Another departure that is considered voluntary is employee retirement. It is possible for employees to separate themselves from the payroll by accepting benefits under the employer’s retirement program. Retirement benefits are frequently enhanced as part of a reduction in force (RIF). It is usually advantageous to have voluntary acceptance of an enhanced retirement package than having involuntary layoffs.

Involuntary Terminations

Involuntary terminations are those over which the employee has no control. These include layoffs; performance terminations; and injury, illness, or disability.

Layoffs A layoff is a reduction in force by an employer when revenues have dropped and payroll expenses must be cut or when work levels have shifted without an employer’s ability to reclaim them. It is inappropriate for an employer to claim someone is being laid off to avoid dealing with performance or other behavioral problems that should result in a dismissal for cause.

Performance Terminations When employees are unable to successfully complete a performance improvement program, the result is performance termination. It is an involuntary separation from payroll. Not meeting the standards of production quantities or quality is the reason.

Injury, Illness, or Disability None of us expects to become disabled, but it happens. Automobile accidents, accidents in the home, and industrial accidents are just a few examples of how that can come to pass. When an injury is long term, or even permanent, it may not be possible for the individual to continue performing their job, even if an accommodation of some kind could be made. Illness can strike that requires long-term treatment and prevents the person from working a normal schedule. Any or all of these circumstances can result in the employer concluding that keeping the employee on the payroll is inappropriate when filling the job vacancy would be a better business decision.

Off-Boarding and Termination

We used to say “removal from payroll.” Now we say “off-boarding.” The result is the same. It is a process of ending someone’s working relationship with an employer. It is termination of that relationship, either voluntarily or involuntarily.

EXAM TIP    You might not use contemporary terms like “off-boarding,” but you should know what they mean for the exam.

Payroll Processing—Final Paycheck

Part of removing an employee from the payroll involves changing status in the payroll system. Ending issuance of future paychecks is the objective.

Time may have elapsed since the most recent paycheck was issued to the terminating employee. In that case, it will be necessary to create a final paycheck that covers the as-yet-uncompensated work time. State laws differ in requirements for when final paychecks must be issued. In California, for example, when an employee gives notice of resignation, the employer must provide the final paycheck on the final day of work. If there is no notice given, the paycheck is due within 72 hours of the resignation. Other states have different rules. Be sure you understand the rules where you work.

Benefit Processing

Benefits will sometimes end when an employee separates from the payroll. Health insurance, for example, will usually cease coverage at the end of the month in which the termination occurs. Death benefits sometimes require company involvement for an extended period of time, providing certified death certificates and processing claim requests.

Documenting Reason for Separation

As we mentioned earlier, documentation is a critical part of the process. And separation is actually a series of events that include compliance with federal and state requirements. For employers with 20 or more workers, compliance with the Consolidated Omnibus Budget Reconciliation Act (COBRA) is required (for more about COBRA, see Chapter 2). Layoffs may trigger Worker Adjustment and Retraining Notification (WARN Act) compliance (for more about the WARN Act, see Chapter 2). And, the Internal Revenue Service requires that notices be provided in some circumstances regarding rights to retirement benefits. All of these types of actions should be properly documented, perhaps even in a checklist/action plan that permits entering completion date information.

Supervisor Documentation

Supervisors may or may not have direct involvement in terminations. If they do, it will likely be related to documenting a final performance review or delivering the supervisor’s portion of the personnel file to the HR department. Any final supervisory documentation should be completed in a timely way so it can be included with the archived documents.

Exit Interviews

In some organizations exit interviews are standard procedure. They are optional in other companies. Since the objective of an exit interview is to obtain employee opinions about how they have been treated while with the company, supervisors are not a good choice for conducting the interviews. Sometimes, employees are not as honest as they might otherwise be with someone in the HR department, for example. It is standard procedure to have the HR department conduct exit interviews in some organizations. Documenting the answers to specific questions can offer insights into unspoken issues that can be consolidated into summary reports periodically issued to senior management.

Employee Relations Programs

Employee relations programs include communication, benefits, compensation, complaint handling, supervisor relations, and more. The entire culture supports or detracts from a positive employee relations program.

Recognition

The larger an organization grows, the greater the likelihood that its recognition programs will be structured. In small organizations, recognition can be given in many forms, often as events unfold and accomplishments are achieved.

Employee recognition can include service anniversary awards (watches, clocks, plaques, certificates, pins), employee-of-the-month awards (designated parking space, plaque or bulletin board posting, special benefit like a dinner gift certificate), cost savings suggestions, sales achievement awards, team achievement awards, or individual achievement awards. Obviously, that is not an exhaustive list. You can add others and apply them as your organization finds a fit between the recognition and the accomplishment.

Service Anniversary Awards Employee recognition can include service anniversary awards such as watches, clocks, plaques, certificates, and pins. Obviously, that is not an exhaustive list. You can add others and apply them as your organization finds a fit between the recognition and the length of service.

Employee-of-the-Month Awards Employee-of-the-month awards can include designated parking spaces, plaques or bulletin board posting, or a special benefit like a dinner gift certificate.

Employee Suggestion Awards Cost savings suggestions can be rewarded in many ways from cash to paid time off or even paid travel excursions. The larger the organization, the greater the variety of options.

Sales Awards Sales achievement awards are dependent on reaching certain pre-announced sales goals. Often rewards in this category involve some type of financial benefit to the employee. It can be cash, a paid cruise, or gift certificates that can be spent on something the employee really would like to have.

Team Awards Team achievement awards come into play when the team of workers has preestablished work goals that will result in a benefit to the company if achieved. It can be a production goal, a safety record, or absence control. The reward can be anything from a pizza party to a free night at the movies or a dinner out. Sometimes, teams are awarded paid time off for their accomplishments. It is something the employer can customize to its own culture.

Individual Achievement Awards Individual achievement awards are like team awards in many respects. The rewards can be much the same, and they are made because of a special achievement by an individual employee. It could be a production award, an accomplishment in production quality, contribution of suggestions for improving the workflow, or any other personal idea.

Peer-to-Peer Awards According to the Society for Human Resource Management (SHRM),⁶ peer-to-peer recognition systems are used in just under half of the companies surveyed in 2013. One can expect that portion to grow as time progresses. When peers receive recognition from co-workers, it has special meaning. Getting colleague approval is a great motivator.

Special Events

There are many types of special events. They can include company parties, holiday celebrations, company days at the local amusement park, paid excursions at the local ski park, or a night out at the theater. Special events offer “thank you” and recognition to the entire group of employees.

Company Parties

Company parties are a common way of rewarding groups of people at one time.

Company Day at Amusement Park A popular reward is the company day out at the local amusement park. Whether it is a water park in August or Disneyland in January, sponsoring these events is a way for a company to acknowledge the hard work put in by its employees.

Company Picnics Company picnics have been popular since the nineteenth century. They are a great way for an employer to say thank you to its employees by inviting all the families to participate. What is better than a fire-roasted hot dog and ice cream cone after a three-legged race with co-workers? Consumption of alcohol at such events has been reduced in recent years because of liability issues faced by company hosts. Some say that alcohol will not be served just to avoid the liability of people driving while intoxicated.

Holiday Celebrations

Holiday parties happen around the December celebrations of Christmas, Hanukah, and Kwanzaa. They are year-end events that acknowledge all that has happened during the year and all the work put in by employees to help the company achieve its objectives.

Holiday Parties Parties can be held in the office with light refreshments or involve more elaborate celebrations with meals involving employees only or employees and their families. Budget is the main controller of the agenda.

Decorating the Workplace Some people really enjoy decorating for the holidays. Independence Day, Halloween, Thanksgiving, Christmas, Hanukah, and Kwanzaa decorations tend to make a workplace livelier. They help lighten the atmosphere at work. Sometimes, the HR department is placed in charge of decorating, and other times a committee of interested workers can handle the effort. Company funding of the decorative materials is usually provided.

Diversity Programs

Everyone likes to have their personal heritage acknowledged. And modern workforces have representation of many diverse heritages.

Celebration Days

Every culture has its days of celebration. They are all examples of opportunities to put the spotlight on a specific portion of the workforce. Table 7-2 is a current listing of cultural and religious holidays that are sometimes recognized in the United States.

Table 7-2 Calendar of Some Cultural and Religious Holidays⁷

There are also many more days of celebration than those listed in Table 7-2, including the following.

Black Holidays The third Monday in January is a national holiday for Martin Luther King, Jr. March 10 is Harriet Tubman Day. May 19 is Malcolm X Day. The African-American community celebrates each of these anniversaries yearly.

Hispanic Holidays In addition to those listed in Table 7-2, Cesar Chavez Day is March 31. Cesar Chavez was a hero of Latino people for organizing the farm workers in California’s San Joaquin Valley in the 1960s.

Asian Holidays September 22 is the Autumnal Equinox in Japan. June 9 is the Dragon Boat Festival in China. In addition, 104 days after the Winter Equinox, Ching Ming Day is celebrated in China based on a legend that is 2500 to 2700 years old.

Culture Programs November is National American Indian Heritage Month. June is LGBT Pride Month. August 26 is Women’s Equality Day. And, our favorite, July is National Ice Cream Month.

Disability Awareness Programs October is National Disability Employment Awareness Month. It provides an opportunity to highlight or spotlight some of the key achievements of disabled employees and employer programs for job accommodation and support.

Measuring Diversity

Measurements are easy to construct. The important point to remember is that we must be careful about how we define the thing to be measured. What gets measured is what gets done. Whatever the boss emphasizes and keeps coming back to every week or month is what people will spend their days working on. If turnover of a given racial group is extremely high, we should ask why. Measurements give us information that allow further exploration into the reasons things are happening. Some of the most common measurements include workforce representation, turnover rates or longevity, the number of complaints received, and the extent to which senior management is involved in the process of improving diversity of the workforce.

Workforce Representation Determine the percentage representation of each ethnic group in the workforce. Divide the number of individuals identifying as Hispanic by the total number of people on the payroll. Multiply that by 100, and the result is a percentage. The same can be done for any subset of the employee population.

Turnover Rates (Longevity) Another measurement of interest is the turnover rate. Again, a percentage is derived by dividing the number of individuals in a given group by the total population and then multiplying the result by 100 to get the percentage. If a given group is leaving the payroll at a faster rate than all others, perhaps there is reason to investigate further.

Complaints Received Is a given group generating more complaints than other groups? Determine the percentage of complaints for individual groups and compare the percentages.

Management and Executive Involvement It is up to the executive team in any employment organization to set the pace for others to match when it comes to diversity issues. Accepting people into the workforce along with their cultural background is achieved only when executives demonstrate that acceptance is the way things are done in the organization. Having a policy that is not followed by executives is a recipe for problems.

Workforce Reduction and Restructuring

When in the course of organizational circumstance it becomes necessary to reduce the workforce to reduce the payroll, it must be done in a nondiscriminatory manner. Building a system in advance is the proper approach. How will individuals be identified who must be removed from the payroll? How will that be done without regard to age, race, sex, or another protected group?

Workforce reduction can happen when there is a paradigm shift in the market for the products produced by the employer. When digital watches were introduced, the number of people making analog watches (with hands that circled a watch face) was suddenly reduced. All of a sudden it was necessary to reduce the workforce to save payroll dollars because the old products weren’t selling nearly as well as they used to sell.

Restructuring occurs when the business model changes and a portion of the enterprise is no longer needed. It can also be necessary when merging with or acquiring another organization. There is usually not a need for duplicate support staff such as accounting and human resources.

Terminology

It helps to be able to converse in the language of human resources if you are an HR professional. Here are some key terms that you should remember for discussing workforce reduction and restructuring.

Reduction in Force (RIF) Reduction in force, workforce reduction, and layoff all result in the same thing…fewer employees on the payroll. The Age Discrimination in Employment Act (ADEA) (see Chapter 2) requires certain waiting periods after an employee agrees to be taken off the payroll. During that time, the employee may rescind the decision. The WARN Act (see Chapter 2) can also be at play depending on the number of employees affected.

EXAM TIP    With more employers making use of temporary workers, you might expect that the exam will inquire about the “gig economy” and how it is being implemented. Study the glossary to be sure you will be ready to answer questions about contemporary HR practices.

Temporary Workers Temporary workers will normally not be employed for longer than 6 months. If they are hired as “project employees,” they will work for the life of the project, which could last up to 2 years. Temporary employees must be taken off the payroll at the end of the temporary period or converted to regular employees.

Incentive Programs When a RIF is necessary, the number of involuntary separations can be reduced by offering an incentive to those in the impacted work groups. If all or some of the required headcount agrees to separate from the payroll voluntarily, it can even prevent any involuntary separations in some cases.

Incentives can involve an enhancement of retirement benefits, a bonus amount for leaving voluntarily, or any other enticement that might be available and that would seduce people into separating from the payroll.

Outplacement Support Another means of encouraging people to accept separation from the endangered work group is to offer outplacement support. This can involve hiring consultants to work with separating employees in developing resumes, identifying targets for new employment, and even providing office space and telephones from which to implement the job hunting campaign. Sometimes, an employer can simply provide office space and telephones in a work center or the old work location for a period of time in helping the employee find a new job elsewhere.

Downsizing

Downsizing can happen even in the normal course of a budget cycle. If revenues are falling, then expenses will have to fall as well. A very large expense is payroll. Thus, an immediate impact on budget reduction can be achieved by reducing payroll through downsizing.

Work Location Closings

When jobs move from one location to another, it may not be possible for some employees to move with them. An automobile manufacturing plant moves to Mexico, and the people at the old plant will be experiencing a layoff. When the WARN Act applies, there is either a work location (plant) closing or a sizeable reduction in workforce at the work location.⁸

WARN applies to organizations with 100 or more workers, not counting those who have worked less than 6 months in the last 12 months and those who work less than 20 hours per week. Regular federal, state, and local government entities that provide public services are not covered. Employees entitled to notice under the WARN Act include managers and supervisors as well as hourly and salaried workers. The act requires employers to provide notification 60 calendar days in advance of plant closings and mass layoffs. A mass layoff is any group of 50 or more at the same work location. An employer who violates the WARN provisions is liable to each employee for an amount equal to back pay and benefits for the period of the violation, up to 60 days.

Temporary Workers

Temporary workers are hired for temporary periods. They are on the payroll but are subject to being removed from the payroll according to their employment agreement. Sometimes they work under contract for a specific period of time or project longevity. Sometimes they are on the payroll only to help handle a bulging workload. Removing temporary workers from the payroll will depend on their contract provisions. It may be that they can be separated without any due process.

Mergers

Mergers require blending the workforces of two or more organizations. Sometimes that happens quickly, and sometimes it takes years. The United Airlines and Continental Airlines merger is an example of long-term adjustment to a merger. Eventually, duplicate jobs will be identified, and someone will have to either find a new job within the organization or look to a different employer for a new job.

Government Approval

Sometimes it is necessary to obtain government approval for mergers and acquisitions. The United Airlines and Continental Airlines merger is one example. Another is AT&T’s purchase of Dish Network. In each case, government agencies needed to review the plans to be sure there would not be a violation of the Sherman Antitrust Act or other federal law.

Blending Policies and Culture

Far more difficult than signing an agreement to merge, the actual implementation requires cultures and policies to be merged. How will union representation be determined? Which policy will prevail when there are two different policies for a given topic? How will a culture of generous work scheduling support be blended with a culture of strict scheduling rules? Those are all difficult questions to resolve.

Duplicate Workforce

When Nation’s Bank purchased Bank of America, there were a great many duplicate jobs in the headquarters organization. How can duplicate accounting personnel be reconciled with the ongoing needs for accounting workers? What happens when there are two bank branches just down the street from one another and the market can’t support more than one? Duplicate workforce can be absorbed over time by placing surplus employees in other job openings that need filling. It may also involve general outplacement.

Outplacement Practices

The larger the workforce, the more likely the organization will offer outplacement services to people being separated from the payroll.

Internal Programs

Internal support offered by employers during a downsizing can include free office space and telephone service, free computer and Internet access, and free administrative support including receptionist and/or secretarial help. It can even include a career coach and assessment services to aid the employee in identifying the type of target job to be considered.

External Programs

Benefits to be found in external outplacement companies can include job assessment and counseling; connection to large placement service centers; help designing, writing, and reviewing a resume and job application; and office service support such as secretarial help and receptionist support.

Consulting Companies There are some consulting firms that specialize in outplacement service for companies that find it necessary to downsize the workforce. They offer services based on a menu of support that laid-off employees can use.

40 Plus Founded in 1939, this nonprofit organization was created to help managers and executives older than 40 find new employment after being laid off. It serves as a job clearinghouse and mutual support group. Chapters are run by the volunteer work of members rather than with paid staff. The group holds weekly meetings that are normally free and open to the public. Guest speakers make presentations relevant to the job search process for managers and executives. Training programs are available that teach members the basics of job searching and what to expect during the process.

State Employment Service Centers Each state has an organization designed to assist unemployed individuals find new employment. You can find your state’s service by doing an Internet search with your state’s name and Employment Service Center in the search. The agency will also process your unemployment insurance claim so you can receive the appropriate benefit. There are classes and referral services available as agency offerings.

Chapter Review

In this chapter we have identified human resource functions related to employee health, safety, and security. We have explored how federal laws and regulations impact these functions and how employers can properly manage each of the impacted areas. From union agreements (union contracts/collective bargaining agreements) to complaint investigations and making adjustments to workforce levels, human resource managers have critical roles to play.

Questions

Select the best answer among the alternatives in each question.

1. Collective bargaining agreements are contracts between a union and an employer.

A. Yup. They are written expressions of a set of workplace rules and benefits the employer will provide in exchange for employee work performance.

B. Nope. They are guidelines only. The union will work out any deviations in the grievance process.

C. Hmmm. Maybe. If the agreement says it is a contract, then it is a contract. If it doesn’t claim to be a contract, then it isn’t.

D. Arrrrggggg. Never. If the employer tells the union it isn’t going to enter into a contract, then the agreement is only an informal set of working rules.

2. Seniority will always be the determining factor in a union agreement.

A. Not always. Some union contracts will use education as the determining factor overruling seniority in the process.

B. Seniority is only used by unions that have contracts or subcontracts with federal agencies.

C. Public agencies rely on seniority, and they are the only ones with those agreements.

D. Universally, unions will rely on seniority as the determining factor for all treatment under contract provisions.

3. Dabney is the HR manager negotiating a renewal of the contract his organization has with an international union. Since the union is international, he isn’t sure if the National Labor Relations Act applies to his situation. What would you tell him?

A. He’s right to be concerned. It is the International Labor Relations Act (ILRA) that governs his situation with the union.

B. When the union is an international organization, they get to choose between the governance of the ILRA and the NLRA.

C. The NLRA governs all union interactions regardless of the union’s scope of involvement.

D. If Dabney’s organization is negotiating in good faith, there is no law that will tell him what to do. Only if he isn’t willing to negotiate will the NLRA take effect.

4. Employment policies as laid out in the employee handbook can take precedence over union contracts.

A. If there is a conflict between the union contract and the employer’s policies, the contract will always win.

B. If a conflict arises, then the policy will always prevail.

C. Whenever there are different provisions in a union contract and employer policy, the differences must be arbitrated to resolution.

D. It is up to the manager of the unit involved to determine which will be applied in the given situation.

5. A union contract normally details the process called progressive discipline. How would you counsel nonunion employers to deal with the process?

A. Progressive discipline is required only for union-represented organizations.

B. There is no need for nonunion employers to have a progressive discipline process since they are probably “at-will” employers and can terminate employees any time.

C. Progressive discipline is a good process for any employer. It offers “due process” to workers. And, it satisfies the legal covenant called “good faith and fair dealing.”

D. Employers can consider using progressive discipline, but absent a union contract, there is little motivation to use the process.

6. Elaine has attended an industry meeting with other HR professionals. She came back to her office with the idea that background investigations of new hires are something she ought to implement. What would you say to Elaine about that idea?

A. The EEOC has banned background investigations in any form because they discriminate against Hispanics and African-Americans.

B. The EEOC has only recommended that background checks not automatically eliminate Hispanics or African-Americans because of employment history.

C. Background checks are still legal and should be conducted on applicants before a job offer is made to be sure there is no history of bad behavior that could bring liability into the new workplace.

D. Finding anyone these days with no skeleton in the closet is going to be difficult. So, background checks are not really worth the money or time they require.

7. Mary has never before had an employee who caused a physical fight with another employee. The policy in her organization calls for progressive discipline. Mary isn’t sure if she should just give the employee a warning or terminate him immediately. What would you recommend?

A. This is the reason people should learn self-defense. When someone is defending themselves, there should be no reason for employer-imposed discipline. The aggressive employee should be given a written warning, though.

B. It is hard for someone to start a fight by themselves. Both employees should be written up, skipping the oral warning step of progressive discipline.

C. It depends on how other aggressive behavior has been treated in the past. Even though there have not been fights per se, the employee treatment should be guided by history.

D. Violent behavior of any kind is justification for immediate dismissal. Even if there is no policy that says violence can result in immediate termination, that is how this situation should be handled.

8. Woodrow has been awarded a paid day off because he delivered his product development project ahead of schedule. Does this mean every time someone delivers a job in advance of the deadline they should be given a paid day off?

A. Maybe. If the situations are the same or similar, the reward should be the same.

B. Maybe. Assuming that the employees had the same amount of service and their projects were similar in difficulty, they should all be given a paid day off.

C. Maybe. With an eye on illegal discrimination, the employer should err on the side of providing a day off with pay to anyone who completes work ahead of schedule.

D. Maybe. If the employer can describe the reward as “special” based on the circumstances, it needn’t create a precedent that must be followed in each future instance.

9. Harold has heard that it is necessary to have a diversity management program under some new federal law. What would you tell Harold about that requirement?

A. The new law won’t be effective until a year after it was passed. So, there is no immediate requirement for him to worry about.

B. There is no federal law requiring diversity management programs. Sophisticated employers are moving in that direction because it is the right thing to do and production results often improve.

C. There is no law requiring diversity management programs, and employers should not consider moving toward such programs unless they are federal contractors.

D. The new law will require diversity management programs only for employers that have federal contracts to provide goods or services to government agencies.

10. Naji is wondering how he is going to describe the difference between his organization’s employee grievance resolution process and the discrimination complaint-handling process. What would you suggest?

A. There isn’t any difference between them. The processes for handling them are the same.

B. Employee grievances are often regarding workplace rules and work assignment processes. Discrimination complaints have more to do with equal employment opportunity issues.

C. Grievances happen only in union-represented organizations, so Naji doesn’t have to worry about that. He still has to explain how discrimination complaints can be handled in his organization.

D. Handling grievances is not required by law, but handling discrimination complaints is a legal requirement under federal law.

11. Emma has never had to manage a union contract before. As the HR manager, she is involved with the grievance-handling process as the third step in the process. At her first meeting with the union steward, the steward began yelling at Emma and telling her what she had to do to satisfy the union in this situation. Emma was stunned. What should she do?

A. She has little choice but to sit there and take it. She is the employer’s representative, and if she gets upset, it will only make matters worse.

B. Emma should call a recess and ask for a management representative to join the meeting with her so she can have some backup in an unpleasant situation.

C. Emma should recess the meeting and tell the steward that she will not continue their conversation until the steward can conduct herself in a civil manner.

D. Once the steward has blown off all her steam, Emma should continue the discussion by explaining the employer’s position.

12. Sophia makes it a practice to call each applicant’s former employers to verify employment claims and determine whether there were any behavioral problems in prior jobs. Her company is now being sued because a new hire had an automobile accident while on a delivery run. It turned out he had a history of reckless driving charges in his past two jobs. But she wasn’t told about those when she talked with the former employers. Should Sophia be worried?

A. Yes. Almost certainly, Sophia will be blamed for negligent hiring. She has little defense. She should have found out about the new employee’s previous employment issues.

B. No. She tried to get information from the previous employers and they wouldn’t talk to her. She made a good faith effort. She is off the hook.

C. Yes. Sophia is going to have to explain to her attorney why she hired this person when there was such a bad history of workplace behavior.

D. Yes. In this instance, she should also have conducted a search of his driving record before hiring him into a job that required driving for deliveries. She shouldn’t have relied on only former employer input.

13. Olivia believes that it is a good idea to conduct an employee survey each year to get input about employee attitudes. Her vice president thinks that employee surveys cost too much money and don’t provide much value in the end. What should Olivia tell the vice president?

A. A well-constructed employee survey can provide information about the types of employment benefits employees would find attractive, how they feel about their managers, and if they believe they are being treated fairly. All of these feedback categories can be assigned dollar values and can be compared over time as budget impacts.

B. Since the professional HR community is suggesting that employee surveys be conducted each year, it would be wise for Olivia’s organization to do that also.

C. The organization Olivia worked at before did an employee survey, and she thinks it would communicate to employees that the employer is willing to listen to them.

D. In the modern workplace, employee attitudes are controlling factors. Surveys will help managers regain control of the workplace.

14. Federal regulations are important because:

A. They give politicians a way to influence how government oversees the private sector.

B. They implement laws that Congress has passed.

C. They precede congressional action and guide Congress in the law-making process.

D. They offer suggestions to the private sector but really have no strong influence over federal contractors.

15. Employers have the right to:

A. Treat employees any way they want in a democratic marketplace.

B. Hire and fire people without influence from any federal law. State laws apply.

C. Expect employees to work hard during the time they are on the job.

D. Divide the workforce into teams that will all write letters to politicians opposing current legislative action.

16. Employee surveys are a good source of input about morale and can be conducted in any of these ways:

A. Calling each employee into the president’s office to discuss their opinions of company policies

B. Telling each employee to appear at a third-party contractor’s office to take part in a one-on-one 360-degree feedback session

C. Paper and pencil questionnaires, online surveys, or focus groups

D. Computer psychological testing that will divulge the attitude of individual employees

17. Attendance and punctuality are:

A. Examples of things that drive supervisors nuts

B. Examples of job behavior that can contribute to or detract from company goal achievement

C. Examples of job behavior that should never be reported to another employer in a background check

D. Examples of subjective performance characteristics that supervisors can document

18. Violations of the employer’s code of conduct can include:

A. Fighting and insubordination

B. Sickness and excess leaves of absence

C. Failure to meet production requirements

D. Talking with other employees about compensation amounts

19. The following are not examples of unethical behavior:

A. Pilferage from employer supply cabinet

B. Playing Counter Strike: Global Offensive, a computer game, during coffee break

C. Scanning a friend’s time card when he will be late

D. Calling in sick and then playing a round of golf

20. A private-sector employer does not have the right to:

A. Examine the contents of employee lockers and desks

B. Listen in on customer service representative phone calls with customers

C. Track drivers of company vehicles using GPS devices

D. Use cameras in the employee restroom to catch smokers who should not be smoking in the bathroom

21. Sexual harassment cannot originate from:

A. A supervisor on the job

B. A supervisor off the job

C. A co-worker who suggests a nice hot-tub relaxation party, swimsuits optional

D. A neighbor who invites the target employee to participate in a birthday celebration for his wife

22. It is not true that illegal harassment can be based on:

A. Sexual advances

B. Racial slurs

C. Persistent requests for a loan

D. Persistent jokes about an employee’s home country

23. In handling an employee with a disability:

A. The employer must grant discussion about a job accommodation if asked for one.

B. The employer must not log an employee as disabled if the employee doesn’t want to be identified as disabled.

C. The employer should not distinguish between a temporary injury and long-term disability.

D. The employer should file annual disability reports with the U.S. Department of Labor.

24. When an employee complains about unfair treatment by the supervisor:

A. The HR department should soothe the emotional complaint and encourage the employee to go back to work and pay no attention to the treatment.

B. It should always be investigated as possible illegal discrimination.

C. HR should suspend the supervisor for at least 2 days.

D. The CEO should be notified that a lawsuit is not far behind.

25. Diversity means:

A. The employer must hire representatives of all backgrounds even if they aren’t qualified.

B. Poor job performers must be retained if they are the last representatives of their cultural background.

C. Searching for qualified people from many backgrounds so they can be considered for a job opening.

D. Identifying at least one person from each racial group who can be appointed to a given job title.

Answers

1. A. Collective bargaining agreements are contracts between the union and the employer.

2. D. We have yet to see a union contract that didn’t use seniority as the determining factor for contract provisions.

3. C. The National Labor Relations Act has effect regardless of how large the union or employer may be. The key is that operations take place in the United States.

4. A. Contract provisions are policy. So, contract provisions will prevail.

5. C. Due process is the effort made by employers who want to convey that they are treating employees fairly. And it does demonstrate that the employer is abiding by the covenant of good faith and fair dealing.

6. C. Background checks are still legal. The EEOC simply recommends making sure they are job related and that conviction records not automatically disqualifying candidates. Using them to help prevent claims of negligent hiring is a good idea.

7. D. It is hard to be absolute in any recommendation; however, this situation sounds like it should result in the immediate termination of at least the aggressive employee. It may be appropriate to also discipline the other employee depending on the outcome of an investigation.

8. D. It is not a requirement that each person who completes their project ahead of schedule be given a paid day off. However, if we create a situation where people in similar circumstances are treated differently based on membership in a protected class, we could face a claim of illegal discrimination.

9. B. Diversity management programs are not a new idea. And they are not a legal requirement. More and more employers, however, are implementing them because they help with employee satisfaction and marketplace perceptions.

10. B. Labor relations issues are usually handled by grievance procedures, and discrimination complaints handle EEO issues.

11. C. Emma does not have to sit there and take abuse from the steward. If the steward cannot behave civilly, the meeting should end. Only when the steward can control herself should Emma agree to continue. It might also be a good idea to provide some feedback to the union president about what has happened in the meeting.

12. D. A background check should be tailored to the situation. For a job that requires driving, a check of DMV records and history of insurance claims should be routine. Had Sophia conducted such a check, she surely would have uncovered this history and been able to change her hiring decision.

13. A. In fact, each category of employee feedback can be assigned a dollar value, and those can be tracked over time as budget impacts. Benefits are only one segment of the employee experience at work. Interpersonal relations with supervisors and managers are another big issue. Generally speaking, employees who feel well treated will be better performers, which also impacts the financial results.

14. B. Regulations represent the detailed implementation requirements for laws that Congress passes. They must be published and public comment invited before they may be finalized and made into legal requirements.

15. C. If an employee is to be paid for a full day, the employer has the right to expect that employee to work hard for the full day in exchange for the pay.

16. C. Paper and pencil questionnaires, online surveys, focus groups, and 360-degree feedback appraisals are all valid methods of conducting employee surveys.

17. B. Achieving company objectives depends upon employees being at work on time on each day they are scheduled to work. Absent or tardy employees can cost the company money and detract from the company’s chance to meet its objectives for financial performance and product deliveries.

18. A. Fighting and insubordination are prime examples of code of conduct violations. They are almost always cited in policy manuals as examples of violations.

19. B. Playing a computer game during a work rest break or lunch break is perfectly acceptable as long as it is done in a safe environment. The company lunch room would qualify as a safe environment.

20. D. Generally, restrooms or bathrooms are places where cameras are not allowed for privacy reasons. Otherwise, with properly published policies, employees should probably not have an expectation of privacy in the workplace.

21. D. Sexual harassment can be based only on unwanted sexual advances in some way connected to the workplace.

22. C. Illegal harassment can be based only on a protected category under the law. These include sex, race, national origin, age, pregnancy, color, disability, genetic information, religion, and retaliation are all protections under federal law.

23. A. When an employee requests a job accommodation, the employer is obligated to enter into a discussion that may or may not result in the accommodation being approved. It may result in no accommodation or in a different accommodation that will work for the employee and be more favorable to the company.

24. B. Any employee complaint that is based on a protected category should be investigated as possible illegal discrimination.

25. C. Outreach and recruiting are tools that can help achieve a diverse workforce. Only qualified people should be included in the candidate pool, and selection decisions should be made based on the best qualified.

Endnotes

1. https://www.umass.edu/usa/weingarten.htm, retrieved on 12/5/2016

2. http://www.dmlp.org/legal-guide/recording-phone-calls-and-conversations, retrieved on 12/5/2016

3. http://www.dmlp.org/legal-guide/state-law-recording, retrieved on 12/5/2016

4. https://www.eeoc.gov/employers/recordkeeping.cfm, retrieved on 11/23/2016

5. 41 CFR 60

6. https://www.shrm.org/hr-today/news/hr-magazine/pages/1114-peer-recognition.aspx, retrieved on 12/5/2016

7. Wake Forest University, American Ethnic Studies, http://college.wfu.edu/aes/calendar-of-ethnic-holidays/, retrieved on 11/25/2016

8. https://www.dol.gov/compliance/guide/layoffs.htm, retrieved on 12/5/2016