While the nature of the work environment has been evolving over the past few years, employment disputes remain a constant. Clearly, COVID has impacted the workplace and has led to a host of disputes across nearly every industry. Many of these disputes are finding their way to the alternative dispute resolution (ADR) process, which offers important advantages in terms of finding equitable settlements and containing legal costs.
To gain greater insight into the nature of today’s employment disputes, and how ADR offers an effective means of resolving such issues, we talked to three distinguished neutrals, all of whom are retired federal judges.
Factors Leading to Employment Disputes
The pandemic has, without a doubt, raised a number of personal and medical privacy issues. According to Judge Leen, “We’re also seeing issues with respect to disciplinary action and reprimands, up to and including termination involving supervisors who complain about upper-level management not complying with COVID protocols and perhaps coming to work sick and potentially exposing other people to the disease.”
Recently, The Wall Street Journal reported that union members of the New York Times and NBC News’ digital properties were threatening to continue to work remotely, defying the back-to-the-office demands of their employers.
Judge Leen suggested that workplace consolidation and associated collective bargaining disputes, particularly those involving union employees in the entertainment and gaming industries, are more prevalent today. She also pointed out that remote and hybrid work assignments are leading to more wage and hour disputes as employees are expected to be available outside normal business hours to respond to emails, speak on the phone or join a teleconference. State and federal minimum wage and overtime laws require that an employee be compensated for all time actually worked. However, many employers don’t have effective systems in place to monitor and report this time, making it difficult to track.
Other factors are also expected to bring about employment disputes. “How the Department of Education's regulations are going to play out in the Title IX area remains to be seen with regard to colleges and universities. It will also be interesting to see what happens with business-adopted COVID rules and how those rules are going to play out in the Americans with Disabilities Act arena,” stated Judge Duncan.
The Ongoing Impact of Quiet Quitting
All three judges pointed out that market forces underlie many of today’s employment disputes. The labor shortage has given employees more leverage with employers. In some cases, this has led to the phenomenon of “quiet quitting,” which involves employees doing the minimum necessary for their job, without giving cause to be fired.
“This creates a real challenge for employers, which must build a solid case that proves an employee is ‘mailing it in,’ in order to justify taking an adverse employment action, whether it be a reduction in pay, reduction in hours, demotion or outright termination. If the action isn’t handled properly, it can result in actions taken by an employee against the employer for disparate treatment. Employers must balance the need to protect the morale of other employees with the prospect of a dispute being filed by the aggrieved employee,” explained Judge Leen.
Arbitration and Mediation Offer an Effective Alternative to Litigation
ADR provides employers and employees with an effective alternative to settling employment disputes through litigation. Judge Clevert suggested that ADR is a way to minimize adverse publicity for the business. “A lawsuit can certainly bring unwanted attention from other members of the company, who may have their own issues and will be motivated by the litigation. ADR keeps these disputes out of the public eye and, in the case of mediation, offers the possibility of the employer and employee mending fences and continuing to have a workable relationship,” proffered Judge Clevert.
Judge Duncan added that mediation provides a greater amount of flexibility in settling disputes. “Mediation allows for give and take between the parties that can more easily accommodate shifting circumstances. Both mediation and arbitration also offer a less costly process for handling these disputes. ADR minimizes some of the more expensive procedural hoops, such as extended discovery,” said Judge Duncan.
Judge Leen agreed with her colleagues, adding that nonpublic confidential resolution of a dispute is also less time-consuming and shields the participants from public scrutiny. “It’s important to remember, any court filing and the results of pretrial discovery are presumptively public. In some cases, there are sensitive issues that neither the employee nor the employer wants in the public domain. ADR accomplishes the objective of keeping that information private,” explained Judge Leen.
ADR: A Safe Forum to Speak Your Mind
Mediation of employment disputes presents an opportunity for the employee and employer to express their feelings. Judge Clevert points out that oftentimes the complainant just wants to be heard, and mediation allows for that. “This can backfire in certain circumstances, but as a neutral, I make every effort to handle the sessions in a way that reduces the possibility of the other side becoming offended and then withdrawing from constructive discussion,” said Judge Clevert.
“There’s no substitute for listening to not only what people say, but what they don't say. It has become increasingly clear to me that there are circumstances in which what the claimant is really saying is ‘I want the respondent to listen to me.’ And if I can get the respondent to understand that the claimant has a voice and wants to be heard, that's helpful in terms of facilitating a dialogue,” added Judge Duncan.
“Sometimes it's important and necessary that the employee have an opportunity to vent or to express their frustration or discuss how they believe they've been treated unfairly,” said Judge Leen.
Virtual, Hybrid and In Person: The Evolving Approaches to ADR
ADR today is rapidly evolving, as sessions are being conducted virtually, in person or some combination. Judge Duncan expressed the view that there are advantages to each of the approaches, depending on the nature of the claim at issue. She believes that having face-to-face mediation does allow for more of a personal connection and a rapport with the parties, but the cost savings and convenience of virtual mediation does have its merits.
In Judge Clevert’s opinion, in-person ADR is more impactful because you get a better sense of the other person and their emotional reaction. He is not opposed to virtual sessions, but feels it’s important, when conducting ADR virtually, to use a large-screen monitor as opposed to cell phone or laptop. He believes a larger screen allows the participants to have a greater sense of how the person on screen is reacting to what is being said by the other side.
The Advantages of Neutrals With Experience on the Federal Bench
It’s probably safe to say that federal judges have seen it all, which makes them particularly good as neutrals. “As a federal judge, we handle a panoply of cases, so that gives us a lot of experience on a lot of different subject matter areas. With regard to employment actions, I have participated in literally more than a thousand settlement conferences or ADR hearings during the course of my federal career. During that time, I feel I’ve developed techniques that work very effectively. There’s no doubt that prior experience on the federal bench also lends credibility with lawyers and clients alike,” stated Judge Leen.
“What my years of experience on the federal bench provided me was the opportunity to see people under different circumstances with different pressures, and how they handled those conditions. This has allowed me to develop a better sense of people, the kinds of problems they face and the types of things that may motivate their positions in disputes. Ultimately, my role as a mediator is to have all the parties leave feeling like they have achieved the result that is best for them,” concluded Clevert.
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