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When It's Time To Do Battle With Your Company


Personal Business: CAREERS

WHEN IT'S TIME TO DO BATTLE WITH YOUR COMPANY

The company you've worked at for over 20 years just gave you a pink slip. They've politely couched your dismissal by telling you they were under financial pressure and difficult choices had to be made. But you don't think your performance has slipped one bit and suspect the only reason you're getting the heave-ho now is because you're over 50 and earn a handsome salary.

Maybe you have a different beef with your employer. You're an African American who has been repeatedly passed over for a promotion, even though your sales numbers consistently top the department. Or you're a woman whose problems can be traced back to when you rejected your boss's advances. Perhaps you're just squabbling over a performance review or bonus.

If you think you have been fired without cause, sexually harassed, discriminated against, or are the victim of a less heinous infraction, who can you confide in--especially if you're not represented by a union? You could go to court or file charges with the Equal Employment Opportunity Commission or state human rights commissions. But court battles and agency claims may take years, and lawyers are expensive.

OUT OF COURT. There is another option: Many companies are instituting so-called alternative dispute resolution, or ADR, which is a formalized program. The entire process is sped up because court is avoided. Alcoa, Brown & Root, Fairchild Aircraft, Levi Strauss, and BUSINESS WEEK's parent, The McGraw-Hill Companies, are a few of the employers that have, or are in the process of implementing, an ADR program.

Although ADR plans vary, many incorporate an open-door policy in which workers having problems with a supervisor can talk to other managers up the ladder. Some companies gather up a panel of your peers to hear a complaint. But most programs rely on mediation (a third party works with all individuals to devise a solution) and, as a last resort, arbitration (an arbitrator hears competing arguments and imposes a final solution), to try to resolve complaints quickly, confidentially, and impartially.

Employees generally should welcome the presence of an ADR program at their office, but there's still a risk it could hamper your career. First, you must consider your goals in pressing ahead with a complaint. Do you hope to land a megacash settlement and fade into the sunset? Or do you want to keep your present job, transfer to another department, or have the offending supervisor removed? Employees also need to take into account the culture of the company and industry in which they work, says James Henry, president of CPR Institute for Dispute Resolution, a New York-based nonprofit coalition of 500 companies and law firms involved with ADR. Because even if you prevail, you might end up with a Pyrrhic victory when someone retaliates with a whisper: "I wouldn't hire that troublemaker...." What's more, consider the particulars of your case. If you didn't get the promotion, bonus, or sales territory you've been coveting, you may have a legitimate gripe--but not a legal claim.

GET A LAWYER. With all this in mind, many experts believe it's a good idea to spend a few hundred for an hour with an employment lawyer, whether or not you plan to retain the attorney throughout the dispute. But you may well want to. An attorney schooled in the subtleties of workplace law can help determine whether you have a case, even in the absence of a smoking gun, says Judith Vladeck, a partner at Vladeck, Waldman, Elias & Engelhard, a New York firm specializing in employment law. After all, she observes, "rarely does someone say, `We're not going to have Jews here,' or `I wouldn't hire a black if my life depended on it."'

If you're pretty certain you have a case, you must decide whether court or ADR is the way to go. Speed and confidentiality are key reasons for choosing the latter. Jack Unroe, CEO of JAMS/Endispute, based in Irvine, Calif., which handles mediation and arbitration cases, figures it takes up to six weeks from the time his company is contacted to the time you'll meet with a mediator. And the average mediation time lasts about 12.5 hours. Airing your griefs in court could take years, and the public proceedings may drag your reputation through the mud. ADR is typically handled behind closed doors, which helps those who want to maintain privacy.

In some cases, you don't have a choice about which dispute resolution procedure is used. If you're registered in the securities industry, for example, you must agree to binding arbitration. But given a choice, the decision rests on how much you trust your company. "If an employee believes the process is just rubber-stamping the decisions of management, then they're not going to use it," says Wayne Outten, an employment attorney with the New York firm of Lankenau, Kovner, Kurtz & Outten.

Sometimes taking the ADR path means surrendering all rights to sue later. "I believe in ADR," says Alan Sklover, a Manhattan attorney. "But you have to be careful if you are waiving any legal rights in order to enter into it."

How can you judge the in-house program? Most companies offer brochures that spell out how their dispute resolution processes work. Some companies, such as McGraw-Hill, provide a phone number so employees can confidentially talk to an outsider about the process.

WHO PAYS? But mediation is where most serious conflicts end up. "Mediation has proven to be the most effective and respectful way of solving cases," says Cliff Palefsky, co-founder of the National Employment Lawyers Assn. That said, you should actively be involved in determining who will hear your case. Will it be a neutral third party provided by an outfit such as JAMS/Endispute or the American Arbitration Assn. (AAA)? Ask your company for the list of potential mediators or have your lawyer do so. Pay attention to their backgrounds, types of cases handled recently, and whether they have appeared before your company before. Also find out who pays for their services. Sometimes the company foots the bill, and sometimes you'll be asked to chip in. In fact, to ensure objectivity, employees may want to pay part of the fee.

During the process, you or an attorney should interview witnesses and request any pertinent documents from the company. To the extent possible, take notes and make careful documentation of your manager's behavior.

Although the overwhelming majority of cases are settled in mediation, some move on to arbitration--when it's even more critical to be involved in selecting who hears your case. Palefsky and other plaintiff-side lawyers are suspicious of plans in which binding arbitration is a required final step. Under such a scenario, an arbitrator--usually but not always a lawyer or retired judge--imposes a decision that cannot be appealed, regardless of whether it is unfair or flies in the face of the law. "Arbitration's goal is finality, not reaching the correct result," Palefsky says. And he contends that arbitrators--who may worry about getting hired again--could show bias in favor of the company.

Indeed, a recent study by Lisa Bingham, an assistant professor at Indiana University, in cooperation with the AAA, suggests cause for concern. Bingham found that when a corporation has repeated experience in employment arbitration, odds are 5 to 1 the company will prevail. But if the company is appearing for the first time, odds favor the worker by better than 2 to 1. Arbitrators aren't trying to be unfair, she says. But having observed the process before, a company can plan a strategy.

TRW Inc. provides one unusual solution. While its ADR plan is mandatory for all employees, the final step, arbitration, is nonbinding. If an employee isn't pleased with the outcome, he or she maintains the right to sue. But if the employee is satisfied, the company cannot appeal.

TIME LIMIT. Both JAMS/Endispute and the AAA, which provide mediators and arbitrators to companies, adhere to a due-process protocol that spells out the minimum rights people retain in any mandatory dispute program. These include statutory time limits, discovery, depositions, and the right to participate in selecting the arbitrator.

It's stressful to bring a grievance against your boss. But if you calmly investigate the dispute resolution process your company has in place, you may reach a favorable conclusion and move on with your career.By Edward Baig EDITED BY TODDI GUTNERReturn to top


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