Settling Employment Disputes

The extensive news coverage of sex harassment and discriminating cases has fueled the raging fire of employment litigation. Every individual who feels slighted at work now thinks he has a legally cognizable employment claim. Moreover, media trumpeting of exorbitant jury awards gives workers the impression that filing a lawsuit is like buying a winning lottery ticket.

The reality is that the majority of meritless lawsuits are, at some point, dismissed by the court or rejected by a jury, and even prevailing plaintiffs rarely find themselves millionaires.

By the same token, sympathetic employees with viable claims overwhelmingly prevail in lawsuits. And even with the multimillion dollar jury award reduced by the court to the more typical several hundred thousand dollars, the hit to the employer - compounded by its legal fees – is likely to be hard.

In addition, regardless of which side ultimately prevails in a lawsuit, the mere process of litigation exacts an enormous toll on all litigants. Plaintiffs are rarely prepared for the long and torturous process of getting a case to trial, or for the employer’s counter-assault, where the employee’s abilities and skills are deprecated and every personal or professional frailty is exposed. Similarly, defendant employers are unprepared for the extensive airing of their own dirty linens, managerial missteps and workplace policy misjudgments, or for the impact upon workplace morale and productivity that such lawsuits inevitably inflict. (Any employer who believes case details will remain within the circle of litigants and lawyers is gravely mistaken. Employment suits are company wide affairs.)

For these reasons, it is often in the interest of both parties to settle an employment claim at the onset. Unfortunately, personal animosities and strategic blunders frequently prevent this from happening. The following is a blueprint for the quick and satisfactory resolution of employment claims.

Contact Your Legal Advisor Immediately Upon Any Hint or Suspicion That A Claim May Be Made

Probably the greatest error made by employers is to wait too long to seek the right kind of expert advice. Employment law is a complex and constantly changing area of the law. Even highly competent in-house counsel is not equipped to respond to many incipient claims unless he or she is an employment law specialist.

You do not necessarily need to bring in an employment lawyer to handle the problem, but you do need to get expert step-by-step advice as soon as there is any inkling that an employee, or former employee, is considering a lawsuit.

Approach Settlement in an Open and Positive Manner

Keep in mind that the claimant is someone who is hurt and angry, but also most likely anxious about undertaking litigation. What you want to do is defuse some of that anger and appeal to the worker’s reasonable side.

It is therefore important to reach out to an employee as soon as possible, before he has fully committed to litigation. How this is best done will vary from case to case. You will need to strategize with your counsel about the tack to take. However, the Progression of Planned Meetings approach is often quite effective. This method involves the following steps:

1. Schedule an initial meeting for the purpose of simply hearing the employee out and letting him know you will thoroughly and fairly investigate the claim. Then, do so expeditiously.

2. A post-investigation meeting is then held to inform the employee generally of your findings and to propose a resolution. If you have concluded that the claim is utterly frivolous, advise him of that fact. But do not do so in a pejorative, argumentative or hostile manner. Explain your conclusion objectively by noting the pertinent facts in your favor and the difficulties he will experience prosecuting a claim. You do not want to antagonize him; you want to persuade him. If the matter cannot be resolved, agree to disagree and set a date for a third settlement meeting.

3. Preschedule negotiation meeting dates at regular intervals for as long as the dispute continues. The dates can be months apart and can always be changed, but it is important to always schedule a specified future date at the conclusion of each settlement meeting. This ensures the dialogue will continue. The time investment is minimal and the process offers repeated opportunities for the parties to re-evaluate their positions.

Be Creative In Your Approach To Settlement

Although the employment claim will almost always involve a demand for a sum of money, in many cases a dispute can be settled in other ways. In your settlement negotiations, you should explore as many avenues as possible.

Start by trying to go the heart of the perceived injury. Does the claimant feel that he have been humiliated or treated unjustly, that his reputation has been damaged, that his ability to seek other employment has been impaired, that a secure retirement has been jeopardized or badly needed health insurance coverage can no longer be maintained? Then attempt to work out a remedy that responds to his deepest concerns. For example, a worker who feels he cannot get another job because he is not working can be offered continued use of an office and secretary while he conducts a job search. While some monetary payment is usually needed to settle a case, it can be nominal if other things of value to the individual are provided.

Finally, Consider ADR

When direct settlement negotiations bread down, there are a number of innovative alternative dispute resolution (ADR) alternatives that can help resolve matters at a fraction of the cost and without the angst of a traditional court adjudication. Mediation, a settlement process presided over by an independent neutral facilitator, is a particularly effective mechanism for the settlement of employment disputes.

This article was provided by HR.com.
HR.com(TM) is a website committed to making the lives of HR professionals and business managers easier. HR.com offers eight communities to address the specialties within human resources, including a section on Conflict and Dispute Resolution in our Labor Relations community. Within each community, users can access articles and research, find vendors/consultants, buy products or services and join discussion groups to learn from their peers.

The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing editors.