Engineers as Employees: Manager-Engineer Relationship Whistleblowing Employee Rights.

Engineers as

Employees:

Manager-Engineer

Relationship

Whistleblowing

Employee Rights

Engineers as Employees

Employer Rights Employee Rights

Control… Freedom to…- spending money - obey conscience- hiring decisions - obey professional codes- organizational structure - join organizations- product features - personal lifestyle choices

- hold political beliefs

Employment at Will- common law doctrine stating that in the absence of a contract, an employer can discharge an employee at any time for virtually any reason

Over time, the law has evolved toward more support of employee rights

Conflict

1967- Geary v U.S. Steel

Geary had 14 years of practical engineering experience and became convinced that a new pipe was unsafe at high pressures. He protested to his direct managers without any effect. Finally, a vice president listened and agreed with Geary. A potentially deadly mistake was avoided.

Geary was fired for insubordination. The Pennsylvania Supreme Court upheld the employment at will doctrine.

1974- Murray v Microform Data

Marvin Murray complained to management that a computer terminal was unsafe because it lacked a power switch to shut off the machine in an emergency. He was fired and was unemployed for almost one year. In a jury trial, Murray was awarded $20,000 in lost pay.

1980- Pierce v. Ortho Pharmaceutical

Dr. Grace Pierce, a physician was helping develop Loperamide to treat diarrhea. She felt the drug had too much saccharin, a suspected carcinogen. She objected to its testing on humans and refused to continue working on the project, citing the Hippocratic Oath. She was reprimanded and demoted which compelled her to resign.

The court upheld the employment at will doctrine.

She appealed to the New Jersey Supreme Court and lost because…

•her resignation was premature

•she had appealed to the Hippocratic Oath, not the American Medical Association Code of Ethics

Nonetheless, this was a groundbreaking case. According to the court...

“In certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interest of the profession… probably would not be sufficient.’

Further

“Employees who are professionals owe a special duty to abide not only by federal and state law, but also by the recognized codes of ethics of their profession. That duty may oblige them to decline to perform acts required by their employers.”

1981- Palmateer v. International Harvester

Mr. Palmateer discovered some employees were storing stolen goods on International Harvester’s property. He informed the police who instructed him not to inform management about the situation. He complied with the directives of the police. When news of the arrest was made public, Mr. Palmateer was fired for insubordination.

Mr. Palmateer won, although a remedy was not specified. The court ruled that if a corporation’s actions violate public policy, the employee should be protected.

1982 - Kalman v. Grand Union Co.

Management wanted Kalman, a pharmacist, to close the pharmacy on July 4th, although the rest of the grocery store would be open. Kalman refused, indicating that professional regulations required him to keep the pharmacy open when the grocery store was open. He reasoned that if he were not there, unauthorized employees could get into the pharmacy and dispense drugs, putting the public in danger. Kalman was fired.

The New Jersey Supreme Court ruled in Kalman’s favor.

“employees who are professionals owe a special duty to abide not only by federal and state law, but also by recognized codes of ethics in their professions… However, an employee should not have the right to [dissent based on] personal morals, as distinguished from the recognized code of ethics of the employee’s profession.”

1983 - Novosel v. Nationwide Insurance Co.

His employer asked Novosel to lobby for a law that would help the company. He refused, and actually spoke out for the opposite side. Novosel was fired.

The Pennsylvania court ruled that free speech was a protected activity of a U.S. citizen so the company’s dismissal was not warranted.

Two Additional Cases on Employee Rights

Rocky Mtn. Hospital et al. And Blue Cross/Blue Shield of Colorado v. Diana Mariani (1996 Colorado Supreme Court)

A tort claim against her former employer (BCBS) for wrongful discharge in violation of public policy. She was fired for refusing to violate Rule7.3 of the Colorado State Board of Accountancy. The rule prohibits a certificate holder from knowingly misrepresenting facts or subordinating their judgment to others.

“Other jurisdictions have recognized ethical codes as a potential source of public policy…” (cites Grace Pierce case)

“A professional employee forced to choose between violating his or her ethical obligations or being terminated is placed in an intolerable position.”

“Public policy must

[1] concern behavior that truly impacts the public…

[2] be clearly mandated such that the acceptable behavior is concrete and discernible as opposed to a broad hortatory statement…that gives little direction as to the bounds of proper behavior.”

Martin Marietta v. Paul Lorenz (1992 Colorado Supreme Court)

Mr. Lorenz, a mechanical engineer, claimed wrongful discharge because of his failure to engage in acts of deception and misrepresentation concerning the quality of materials used by Martin Marietta in designing equipment for the National Aeronautics and Space Administration (NASA) for the external tank of the space-shuttle program.

He was directed to modify the minutes of a technical review meeting regarding.. He alleged the changes amounted to retractions of important representations made by Martin Marietta to NASA at the review session.

Lorenz was informed that he should have made the modifications and should “start playing ball with management.”

Martin Marietta laid him off on 7-25-75.

Lower courts rejected Lorenz’s claim of wrongful discharge on the grounds that Colorado recognizes no such claim.

Federal law prohibits knowingly and willingly making a false representation to a federal agency.

“We concluded that Lorenz did present sufficient evidence at trial to establish a prima facie case for wrongful discharge under the public-policy exception to the at-will employment doctrine…”

The Court directed a new trial in accordance with the principles here in established.

The Courts and Employee Protection

1. Public-Policy Exception is interpreted narrowly by the courts, protecting such activities as

* employee’s refusal to break the law

* performing an important public obligation (jury duty)

* exercising a clear legal right (free speech, unemployment compensation)

* protecting the public from a clear threat to health or safety

2. Protection of employees from violation of their conscience not generally upheld (Illinois Right of Conscience Act, 1985 is an exception.)

3. Protection of Employees when there is a mere difference in judgment with employer is not generally upheld

4. Codes of professional societies (“private”) do not have as much standing in court as the codes of state regulatory boards

Manager-Engineer Relationship

Some Background

* Managers have the power to overrule engineers

* Engineers have obligations to their profession

* Communication can be difficult if managers do not have technical background

* Many engineers aspire to become managers

Manager’s Perspective (Jackall’s Study)

* Managers must place the interests of the company first

* Morality has little to do with corporate decision making. Producing faulty products or damaging the environment is bad only because it adversely affects the corporate image.

* Must be a “team player.” Loyalty is to peers and superiors.

Manager’s Survival Tactics

* blur lines of responsibility to protect self, peers, and superiors

* details are pushed down, credit is pushed up

* avoid responsibility

* appoint a committee to make difficult decisions; blame the committee if the decision goes badly, accept the credit if the decision goes well

* avoid putting things in writing

Engineer’s Perspective (Hitachi Report)

* pay attention to technical details

* narrow horizon, pay little attention to nonengineering issues

* focus on things, not people

* focus on safety and quality

Decision Making

Given that managers and engineers have different perspectives, who should make decisions?

(Note: In practice, the managers hold the power and can always override an engineer’s decision. Here, the question is an ethical one.)

Proper Engineering Decision (PED)

* involves technical engineering matters

* ethical standards are embodied in the engineering codes of ethics

Proper Management Decision (PMD)

* involves well-being of organizations (e.g. cost, scheduling, marketing, employee morale)

* does not force engineers to violate code of ethics

Case

Jane is an engineer who is selecting a valve.

Valve A

* state-of-the-art

* excellent safety record

* quicker shut-off mechanism

Valve B

* less expensive

* implicated in some industrial accidents

Although Valve A is 25% more costly, it is easily afforded by the company. Both valves are available off-the-shelf.

Case

Jane is an engineer who is selecting a valve. The two valves have similar quality and safety.

Valve A

* valve manufacturer is a potentially large customer for Jane’s product

Valve B

* faster deliver

* 5% cheaper

Loyalty

Most engineers (~90%) work in companies. It is important for them to be “team players” and to show loyalty to the organization.

Uncritical Loyalty

Placing the interests of the employer (as defined by the employer) above any other consideration. Abandon personal morality for the morality defined by the employer.

Arguments for Uncritical Loyalty.

* chaos would result without loyalty

* refusing to take an assignment based on personal convictions means someone else will be given the assignment

* engineers are not expert in public policy so they are not in a position to judge

* expected in certain roles (e.g. parent, team member)

Arguments Against Uncritical Loyalty

* it’s in the company’s interest to behave morally (if nothing else, to avoid bad publicity and legal battles.) It is desirable to have all corporate actions approved by all the employee’s “moral filters”

* because laws cannot be written to prevent every possible abuse by corporations, it protects the public for employees to verify the morality of a proposed action

* certainly, there must be limits to what can be done in the name of being a “team player”

* employees lose freedom as “moral agents”

Moral Agent- Autonomous, self-governing individual capable of formulating or pursuing goals and purposes of their own.

To overcome the problems of uncritical loyalty, a “creative middle way” is needed.

Critical Loyalty

giving due regard for the employer’s interests, within the constraints of the employee’s personal and professional ethics

Implications…

* engineers must check every action with their personal and professional ethics

* managers should not make engineering decisions

* organizational disobedience is a last resort and must be done in such a way as to minimize impact on employer and employees

Responsible Disobedience

Disobedience by Contrary Action engaging in activities deemed to be contrary to the interests of the employer

Examples…

* belonging to an environmental group that opposes the construction projects of your employer

* belonging to a political group not in favor by most members of the community

Argument Against Restricting Contrary Action

* American tradition values individualism

If you engage in contrary actions…

* think it through carefully if your actions directly impact the company

* choose your battles carefully (i.e. only engage in contrary action if it is strongly held belief)

Disobedience by Nonparticipation

refusing to perform an assignment because of personal or professional objections

Examples…

* refusing to participate in a military project * refusing to participate in a project that damages the environment

Potential abuse…

* an employee may say they are morally opposed to the project when, in fact, they find it boring or they may have a personality clash with the project’s team members

Employers should try to accommodate employees who have strong personal or professional objections to a project by assigning them to another, less objectionable project.

Disobedience by Protest

protesting a policy or action of the company

Examples…

* writing a memorandum to the company president explaining your objection (internal protest) * contacting the press to publicize the action or policy you find objectionable (external protest)

May involve a complex conflict between obligations to…

* employer * family * self (career) * public

Note: the codes require engineers to make public health and safety their first priority

Whistleblowing

public exposure of the company’s objectionable policy of action

De George’s Criteria for Morally Permissible Whistleblowing

1. Potential harm is serious and considerable 2. Employee reports their concern to immediate superior 3. Employee exhausts every possible channel within the company 4. Document, sufficiently to convince a responsible and impartial observer, the possible harm 5. Disclosing information would actually prevent the harm

It may not be possible to satisfy all criteria if, for example, there is not enough time to document everything, or if the superiors are the cause of the problem.

Considerations before whistleblowing

* Be convinced that the protest is justified * Consult ethics ombudsman or “ethics hotline” * Try to convince other professionals to stand with you on the issue * Make objections known to immediate supervisor, if appropriate * Try to find a sympathetic manager if the immediate supervisor is not responsive * Make positive concrete suggestions to fix the problem

If all else fails, then it is the engineer’s obligation to “blow the whistle”

The government has provided some support to whistleblowers

1981- Michigan’s Whistle Blower’s Protection Act

“Any employee in private industry fired or disciplined for reporting alleged violations of federal, state, or local law to public authorities can now bring an action in state court for unjust reprisal. If the employer cannot show that treatment of the employee was based on proper personnel standards or valid business reasons, the court can award back pay, reinstatement to the job, costs of litigation and attorney’s fees. The employer can also be fined up to $500.”

Weaknesses

* does not protect employees from being discharged for obeying professional codes or personal conscience * $500 penalty is really low

Note: studies of whistleblowers indicate they are proud of what they did and would do it again, but they and their family often suffered as a result.

Employee Rights

In a conflict between the company and the individual, the company usually has the advantage.

Potential company reprisals…

* deny raise * deny promotion * harassment * assigned to unimportant, uninteresting, or demeaning tasks

Implementing Employee Rights

Employee—

•focus on issues, not personalities * *keep written records of complaints * *keep complaints confidential * *use impartial observers to arbitrate disputes

Employer—

* protect from reprisals * formal procedure for handling complaints