QUESTION: I' ve been reading a lot about how employers can resolve internal employee complaints, such as sexual harassment complaints, without going to court. What evidence do you have that such procedures are effective, and what are the steps I need to take to set up an alternative dispute resolution process?

ANSWER: An alternative dispute resolution (ADR) process is an available set of choices made by both employers and employees to resolve workplace issues in a mutually satisfying way. It was developed as an alternative to the costly confrontations that Americans got into in the 1970s, 1980s, and early 1990s. I am talking about lawsuits generated by employees or government lawsuits involving agencies like the U.S.Equal Employment Opportunity Commission or U.S. Department of Labor. Union organizing activities were also designed to disrupt the relationship between employer and employee.

ADR usually involves the use of an ombudsman who can cut through corporate levels to help the parties recognize their respective interests. The process keeps an eye on continuing a relationship between two people without breaking it up. It also could involve outside mediators to work onspecial issues, but it is not arbitration.

Judged by Peers

Some companies may choose to use a peer review system. Employees have the opportunity to present their problem to a panel of in-house adjudicators. The panel might consist of three rank-and-file employees and two supervisors sitting as a jury. These individuals do not have the job of creating company policy. Their job is to listen to the facts and adjudicate whether policy was correctly applied.These people are volunteers, and the Human Resource department facilitates the process by asking the employee with the complaint to select any three co-workers and two supervisors from lists. This in-house panel upholds a disciplinary action or reverses it. The likelihood of a lawyer taking a case after it has been adjudicated in this way is slim. It is still the employee' s right, but it is not practical.

Panels Award Damages

Employees are given the same rights as they have in federal district courts. Panels can award damages andany other appropriate relief ordered by the district judge. They can give more than the judge can because they can work on interpersonal relationships. Their options include ordering someone to get counseling or establishing training programs on sexual harassment or sensitivity. They may even ask a company president to write a letter of apology.

Taking a case before a court involves years. Taking a case before one of these panels involves weeks o rmonths. All of the expensive and protracted pretrial motions are avoided. This saves thousands of dollars in pretrial costs. Only 5% of all cases go to trial because they are settled in some way before reaching a courtroom.

ADR has been a part of the collective bargaining process for 65 years. Each time a contract expires, parties are required to notify the Federal Mediation and Conciliation Service, which offers its mediators to settle disputes. United Parcel Service has had an ADR mechanism in place for over a year, and it' s been called a phenomenal success for eliminating employee relations' litigation. The same is true of the company owning Red Lobster and Olive Garden restaurants.

Carefully Plan Layoffs to Avoid Lawsuits

Reducing a workforce is neither easy nor risk-free as employees may use the occasion to sue for discrimination and bias. Michael Barabander, a partner at Grotta, Glassman & Hoffman, says there are a number of precautions HR can take, including:

  • Have your legal counsel review layoff plans.
  • Check employment agreements to determine if you are barred from dismissing particular employees.
  • Review the employee handbook' s policy on workforce reduction and terminations.
  • Make sure you provide notice of layoffs if you are dismissing 50 or more employees at a particular work site.
  • Check the provisions of the Worker Adjustment and Retraining Notification Act.
Martin Payson is a partner at Jackson, Lewis, Schnitzler & Krupman in White Plains, N.Y., which represents managers in labor and employment law issues. His association with the firm began 32 years ago, and his concentration on alternative dispute resolution (ADR) started in 1991.

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Published on: May 1, 1999