Thoughts on the Limitations of Grievance Procedures in the Private Sector

The number of lawsuits filed by employees has risen dramatically since the passage of the Civil Rights Act of 1991 that provides for jury trials, compensatory and punitive damages, and attorney’s fees. Plaintiff’s lawyers hailed employment law as the “personal injury law of the ‘90’s” because of its potential for lucrative winnings.

Individual employers began looking for ways to prevent these lawsuits before they became the next to be dragged into a court of law. Not only is the defense of one of these lawsuits expensive, but the negative publicity can cause even greater damage. With little precedent to follow, employers scrambled for methods to head off this potential devastation.

Many turned to traditional “grievance systems” which were developed as an offshoot of the systems used in union contracts. These systems, in the private sector are seriously flawed and can actually encourage a lawsuit. Here’s why:

Grievance systems usually have three progressive steps. They tell an employee to first try to resolve their dispute with their manager. If they cannot do this, they are told to submit their dispute in writing to the next level of management for review. Finally, if they are not satisfied with the result, they can submit the grievance in written form to the highest level of management or a committee designated for that purpose. If the dispute is not resolved to the employee’s satisfaction at this stage, they have no further appeal except to our legal system. Each of these steps will be examined below.

In step one of a grievance, the employee is told to discuss the problem with their manager. The flaw here is that most disputes that an employee feels strongly enough to pursue are with their manager. Therefore, they are told to try to work out the dispute with the person they have already been unable to work out the dispute with!

In step two of a grievance, the flaws multiply. First, the employee is told to go over her manager’s head to her manager’s boss. This has the potential of not only seriously damaging any relationship left between the employee and her manager because she challenged her boss’s authority, but the manager’s boss may be a friend who will look for a way to support the manager’s position. Finally, the personal element has been removed as employees are required to communicate through written word, which is one of the least effective means of communication, and is also dehumanizing to the complaining party since she may feel that no one will “listen” to her.

Step three of a grievance continues to escalate the dispute. Quite often the process has been ongoing for several months by this time. The parties have become entrenched in their positions and there has been little if any verbal communication. At this point, much of the damage has been done regardless of the decision. If management supports their colleague, the employee expects it. If not, there is no method to repair the prior damage.

If a grievance is not resolved to the employee’s liking, she has invested too much effort and too much time to drop it. She can easily contact a plaintiff’s attorney who may be more than willing to take the case on a contingency basis. The employee has nothing to loose at this point. At worst she can become a thorn in the employer’s side and at best, she hopes to “win the litigation lottery”.
When all is said and done, the underlying dispute driving the conflict has neither been identified nor addressed. Everyone is unhappy, relationships are stressed and a bad situation continues to exist.

It is precisely because of this scenario that the field of conflict management has developed. Innovative programs are being developed that are not only resolving disputes quickly, but they are having an overall positive measurable effect on the workplace.

So why do unions use grievance procedures?

You have asked an important question. There is one thing that grievance procedures used by unions have that is different from non-union grievance procedures. That is a final rights-based step where an external arbitrator resolves the dispute. This is an expensive step but it brings closure to the dispute by way of a decision from a neutral third party. Of course when submitting a claim to arbitration the case is out of both the employer and employee’s control. Employers generally do not want to give up this control if they are not required to do so and thus do not adopt the last step of the process in non-union environments.

Today, many unions have recognized the limits of this antiquated grievance process and have begun to seek interest-based processes such as mediation to resolve their disputes. Results have been extremely favorable with this approach.

                       

Andrew Colsky

Andrew Colsky mediates employment disputes including complex multi-party disputes. He is also an ADR program/system designer who served as an integral part of developing the world's largest employment mediation program at the U.S. Postal Service. MORE >