Litigation
Jun. 1, 2001
Finger-Pointing Flurry
Outside review of employee grievances coupled with fact-finding and stated conclusions is an effective method of resolving employment and workplace disputes. When undertaken early, the process minimizes problems arising from employer-employee or employer-union conflict.
Outside review of employee grievances coupled with fact-finding and stated conclusions is an effective method of resolving employment and workplace disputes. When undertaken early, the process minimizes problems arising from employer-employee or employer-union conflict.
However, choices are available. The following hypothetical illustrates the process:
Facts
Jeremy, 53, has worked as an engineer grade 3 at the ABC Aeronautics Corporation for 17 years. He has been classified a grade 3 for the last two years, and his salary has reached the classification salary cap.
Jeremy's prior supervisor promised that he would be considered seriously for promotion to grade 4 at his next annual review. Shortly thereafter, Jeremy's supervisor left the company. Jeremy's work responsibilities increased with the addition of the new supervisor.
Jeremy openly challenged the new responsibilities and vocally criticized the new supervisor to other members of the staff. Jeremy received a written warning for disruptive behavior, the first blemish on an otherwise-perfect work record.
Jeremy is furious and openly discusses filing a complaint of age discrimination with the Equal Employment Opportunity Commission. Jeremy has a cadre of friends who share his hostility toward the rigorous management style of the new supervisor. Jeremy has initiated a formal grievance.
Traditional Options
The human resources representative has scheduled an interview with Jeremy. The problem is that this is the same representative who placed Jeremy on warning for disruptive behavior.
Jeremy is concerned that the interview will be one-sided and that his opinions and concerns will be shared with the manager in a manner that will exacerbate the problem. Jeremy does not wish to participate in any interviews unless counsel accompanies him.
Company policy permits the company to meet with the employee without counsel.
In this case, the problem is trust. Jeremy feels betrayed on multiple levels. He believes that he has been used for the last few years, that the supervisor wants to replace him anyway and that the human resources department supports this conclusion.
The likelihood of a beneficial outcome as a result of a human resources inquiry is remote. In addition, the fear of senior staff members that they too are soon to be replaced will not be alleviated through the interview process, especially if there is an adverse employment consequence to Jeremy.
On the other hand, the company believes Jeremy is manipulating the situation by pressing the "age button" in an effort to push for a promotion he is not entitled to have.
Traditional options also include an ombudsman. The ombudsman protocol is similar to the human resources interview. The difference is that an ombudsman, an employee of the company generally housed within the human resources department, serves as an intermediary. This person interviews Jeremy, co-workers and management representatives. Thereafter, recommendations are tendered to the human resources department and the management team.
What's wrong with this picture?
The ombudsman is an employee of the company, and an interview with him or her poses the same emotional hurdles as an interview conducted by a human resources representative. Rarely does corporate culture elevate the status of ombudsman to a role generally recognized as "neutral" within the corporate hierarchy. More often, the ombudsman interview is a stage in a process that generally leads to litigation. Again, lack of trust is the culprit.
Neutral Fact-Finding
Neutral fact-finding is a process-oriented dispute-resolution vehicle. It works best when it is part of the corporate culture through the human-resources policy manual and is structured in an environment whereby it may be triggered through a request of the human resources department, the manager or the employee.
It may be optional or mandatory but works best as a consensual rather than imposed dispute resolution process.
Initiation Form
A simple form, made available to all department heads, human resources and the union representatives, initiates the process. The form identifies the date, party submitting, name of interested parties and a brief description of the issue. The form is submitted to the ombudsman or human resources designee or, for enhanced neutrality, directly to a neutral provider of dispute resolution services.
Initial Caucus
Once the neutral fact-finder is selected, either through a neutral provider or a strike list, an initial caucus is scheduled. This typically is done as a joint caucus.
The neutral fact-finder establishes the parameters, clearly defines the objective as the development of a win-win resolution, and asks each party to explain the situation in a nonadversarial (noncompetitive) manner.
In our case, Jeremy might say, "I've held the same job for seven years and believe I have been working beyond my job description for two years. My former manager promised a promotion, while my current manager increased job responsibilities, refused to give me the promotion, created a hostile work environment and I believe is trying to get rid of me because of my age."
After each side provides its overview, the neutral may ask some questions in joint session. The next step is the individual caucus.
Individual Caucus
The neutral fact-finder next will have individual meetings to bring out the issues, underlying facts and potential witnesses. This is not a mediation, and the neutral fact-finder is not seeking to test realities or create a solution at this stage.
On completion, the session is adjourned with the understanding that the neutral fact-finder will prepare an investigation plan and interview the necessary parties. The parties to the dispute are requested not to discuss the dispute or the neutral fact-finder's inquiry with any of the stated witnesses.
Interviews
Interviews are scheduled through the human resources department. This may be done in conjunction with the manager, unless the manager is the source of the complaint. It is important that parties to the disagreement be asked not to discuss the issues or the pending interview.
Thereafter, the neutral fact-finder engages in confidential discussions with the witnesses and, if necessary, with other managers for individuals within the department. The interview generally is conducted in a conversational style, making extensive use of open-ended questions.
The introduction to the interview is particularly important. The neutral fact-finder must operate within a framework of trust through an assurance of confidentiality and an understanding that individual names will not be linked to any particular statements or conclusions.
Reporting
The neutral fact-finder either drafts a report or provides an oral debriefing. In either case, an overview of the issue, scope of investigation and conclusions are provided. The conclusions typically include a recommendation for specific action to address the issue, or they recommend that no action be taken. The recommendation should be stated in neutral terms.
In this case, the recommendation may be, "Following an interview with the employee, representatives of management and numerous co-workers, as well as a comprehensive review of the employee handbook and job descriptions, it appears that this employee has been working above grade for approximately 18 months.
"The employee's reaction upon the change of management did constitute disruptive behavior within the workplace. The election of the employee to disrupt the workplace rather than make use of available human resources options mitigates against considering the employee for promotion at this time.
"However, the employee should be promoted from an engineer grade 3, level 7, to an engineer grade 4, level 1. Human resources guidelines provide for a 5-7 percent pay increase. In light of the employee's conduct, a 5 percent pay increase in recommended. This increase should be retroactive for a period of 11 months with interest and benefits adjusted accordingly."
Binding vs. Nonbinding
The single most significant advantage of neutral fact-finding is that inserting a review level that is not connected to management assures a greater sense of neutrality.
Employees often are more comfortable and more candid when they are assured that specific comments will not be attributed to them and their personal opinions will not be communicated as such to co-workers or management.
Many believe that employees fear being critical of management. Often, employees do not wish to be critical of the co-worker or the co-worker's position if the criticism might get back to the co-worker. Neutral fact-finding reduces these concerns.
Should the neutral's recommendation be binding? Whether or not the decision is binding, should the neutral report be admissible in a collateral proceeding such as a complaint before the Equal Employment Opportunity Commission or other administrative body, or in civil litigation?
As a voluntary administrative remedy, neutral fact-finding should fall within the mediation privilege, and neither the results nor the investigation should be subject to disclosure or discovery beyond the scope of the parties involved in the investigation.
In those situations where the findings are not binding, the neutral fact-finder or a third party should have permission to use the findings to obtain a voluntary agreement. Corporations have found that using a neutral fact-finder who also is a skilled mediator permits the transition from investigation, to report, to a mutually agreeable resolution.
Alexander Polsky is a mediator, arbitrator and discovery referee with JAMS in Southern California and an adjunct professor at the University of Southern California teaching alternative dispute resolution.
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