Ask The Lawyer

By Debra Roth

Settling disputes through mediation

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Alternative dispute resolution (ADR) can be a great tool for supervisors in a wide variety of employment conflicts — including discrimination cases, personnel actions, adverse actions, whistle­blower claims and claims under the Uniformed Services Employment and Re-employment Act (USERRA). When used in appropriate circumstances, ADR can yield results that are faster, less expensive and less contentious than traditional complaint processing, such as through the Equal Employment Opportunity Commission or Merit Systems Protection Board.

ADR is an informal process in which a neutral third party, the mediator, assists the opposing parties in reaching a voluntary, negotiated resolution of a complaint. The opposing parties could be two co-workers engaged in conflict or a manager and subordinate working through issues. No types of complaints are off the table.

Mediation is different from other forms of dispute resolution in that the parties participate voluntarily and the mediator has no authority to make a decision. The decision-making power rests in the hands of the parties.

During the ADR process, both sides have the opportunity to discuss the issues raised in the complaint and clear up misunder­standings that may have occurred. Ultimately, the goal is to compile the areas of agreement into a final, formal resolution of the complaint. This resolution may be an elaborate remedy, such as transferring an employee to another supervisor, or may be as simple as an apology.

There are no filing deadlines, no formal rules of evidence and no witnesses. While it is not necessary to have an attorney or other representative attend the mediation session, each party has the option to have legal counsel present. Having an attorney present ensures that your individual best legal interests are being met through any proposed resolution or settlement. However, the attorney you choose should be well-versed in the mediation process.

Whenever managers see a problem brewing between employees, or when they themselves have an issue developing with a co-worker, mediation should be the first step toward resolution. The earlier the problem is addressed, the more likely it will be resolved.

Within my practice, we frequently look to mediation to resolve contentious cases, especially in matters relating to USERRA, employee removals and employment discrimination.

To have the most productive mediation possible, managers should fully prepare. Think about the issues and your interests and what you would like to see as an outcome. Explore whether your expectations differ from your agency’s. Discuss the settlement options and a negotiation strategy. Review relevant documents and bring them to mediation.

In determining who should attend mediation, consider that an employee may feel outnumbered and at a disadvantage if too many managers are present. Generally, attendees should be people with the most knowledge about the problem and someone who has settlement authority — such as a high-level manager, legal counsel or human resources official.

I have found that ADR can be particularly effective if the parties have a need to continue their working relationship. For example, if the two employees in conflict frequently work on a team project together, finding a resolution outside of litigation will be beneficial to the team environment as a whole.

ADR is also beneficial when it is clear that both parties want to reach a settlement quickly, but personality conflicts or poor communication have hampered negotiations. Also, if the parties prefer to maintain confidentiality about the issues, ADR is the way to go. Generally speaking, communication during dispute resolutions is confidential and may not be disclosed by either party or the mediator.

ADR is independent of any traditional complaint process such as through EEOC or MSPB. If mediation does not result in resolution of a complaint, the complainant can continue his grievance through the appropriate agency, and each party must meet all the filing requirements and time frames outlined.

Also remember that mediation is an option even if you’ve already filed a complaint. An ADR session can be scheduled to attempt to come to a resolution outside of the more formal forums. And if the dispute is not resolved during mediation, the case can continue in the administrative process as though the ADR session did not occur.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.

New law offers extended USERRA protections

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The 2008 Veterans’ Benefits Improvement Act, signed into law in October, enhances veterans’ compensation and pensions, and housing and insurance benefits. It also extends protections of veterans’ and military reservists’ employment rights under the Uniformed Services Employment and Re-employment Rights Act (USERRA).

USERRA prohibits discrimination against anyone serving in the armed forces or taking military leave from a civilian job. This includes discrimination in hiring, promotion, re-employment or any other benefit of employment.

The new law clarifies that there is no limit on the period for filing a complaint under USERRA. It also requires agencies responsible for handling USERRA complaints to comply with a new set of deadlines, where previously they had none, to ensure claims don’t pile up as they have in the past. With more than 300 claims from vets and reservists in both federal and private-sector jobs currently backlogged at the Labor Department, this reform is a welcome one.

A service member who believes he or she has been discriminated against under USERRA may file a complaint with the Labor Department’s Veterans’ Employment and Training Service (VETS). VETS will investigate the complaint, determine whether it has merit, and attempt to resolve meritorious complaints. Under the new regulations, VETS is required to complete its investigations and notify the claimant of its findings within 90 days of receiving the complaint.

If VETS can’t resolve the complaint, the complainant has the right to have the agency forward his or her complaint to the Office of Special Counsel (OSC) or the Justice Department. The new law requires that VETS refer the complaint within 60 days of the complainant’s request. OSC or Justice then has 60 days to determine whether to provide legal representation to the employee and to notify the employee of its decision. If the complainant is denied representation, he can appeal to the Merit Systems Protection Board (MSPB) with the assistance of a privately retained attorney. Service members also have the right to private representation from the beginning of the claim process.

The Labor Department also has other new steps: It must notify the veteran or reservist, in writing, of his or her USERRA rights within five days following the filing of a complaint. It also must report to Congress on USERRA enforcement actions — indicating the number of actions initiated by OSC and the cases heard by the MSPB. In the past, Labor was required only to report the number of complaints filed by the Justice Department.

One of the more important elements of the act calls for agency human resources personnel to receive training on USERRA.

The training is to be developed and provided in consultation with the Office of Personnel Management. The frequency of the training is at OPM’s discretion, but must be often enough to ensure agency personnel are kept fully informed of USERRA and its application in the daily workplace.

And this type of training is long overdue. While there’s a basic understanding of the law, USERRA is complex and requires careful comprehension to ensure employees’ rights and to keep uninformed managers out of legal hot water.

Even before the mandated training kicks in, managers and human resources departments can ensure they are taking care of their veterans and reservists from a legal perspective in the following ways:

*Offer veteran and reservist employees opportunities to grow in their jobs by enhancing the training they’ve already received in the military.

*Remember, employees who are absent for military service are entitled to the same benefits as employees who are on nonmilitary leaves of absence.

*Most military commands will work with your agency to try to avoid a hardship as a consequence of deployment. There are special offices available at most commands to assist both you and the soldier.

*You should work out a plan with the employee regarding notification of when the military duty is expected and for what length of time to plan how his work will be handled in his absence.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.