In June of 1894, amidst a deepening economic crisis, railroad employees staged a strike against the Pullman Palace Car Company to protest wage cuts and the firing of union representatives. Within days, members of the American Railway Union joined the “Pullman Strike” nationwide. When the U.S. government was asked to intervene, President Grover Cleveland dispatched federal troops and — after much rioting and bloodshed, including 30 deaths — the strike ended. Just six days later, fearing further conflict and hoping for a reconciliation with organized labor, Congress unanimously — ah, the good old days! — passed legislation which declared the first Monday in September to be “Labor Day.”

The unique relationship between employer and employee continues to generate conflicts to this day — wrongful termination, sexual harassment, discrimination, ADA claims, wage and hour violations — and efforts to resolve these conflicts often call for special strategy considerations. The fact that employment disputes tend to be more relationship-driven adds an emotional element that generally requires a more nuanced approach during mediation.

For example, a joint session — which many attorneys fear and loathe — can be particularly useful in the mediation of employment disputes. When managed properly, a joint session affords plaintiffs a rare opportunity to air their grievances and give voice to their feelings and emotions, while simultaneously offering defendants the chance to show empathy and, when appropriate, accept responsibility and apologize for any improper conduct.

Employment disputes also offer a unique opportunity for the parties to collaborate with one another in exploring and crafting non-monetary components to the resolution of disputes — i.e., letters of recommendation, retraining, reasonable accommodations, departmental transfers, etc.

Another critical difference between most employment disputes and other types of disputes is the statutory right of a prevailing plaintiff to recover his or her attorney fees. California’s Fair Employment and Housing Act (“FEHA”) and various federal statutes provides what is effectively a one-way street for the recovery of attorney fees because prevailing defendants lack a reciprocal right unless the court determines an action to be “frivolous, unreasonable or without foundation.” For that reason, early attempts at resolution are imperative, as are the early and judicious use of CCP Section 998 and FRCP Rule 68 offers, lest the dispute be driven by accumulating attorney fees rather than the actual merits of the claim.

Employment disputes may be inevitable, but if addressed early on, with concern and compassion, they are likely to cause less pain — emotionally and economically. In fact, when conflicts between management and labor receive proper care and attention, their resolution might just give birth to healthier working relationships.

As always, I would be pleased to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.

Best regards . . .

Floyd J. Siegal

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