In 1894, in the midst of a deepening economic crisis, workers 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 government was asked to intervene, President Cleveland dispatched federal troops and, after much rioting and bloodshed, the strike ended. Six days later, the fear of further conflict and a hope for reconciliation with organized labor led Congress to unanimously enact legislation declaring the first Monday in September to be a federal holiday — “Labor Day.”

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

For example, plaintiffs might want to consider taking advantage of a joint session to describe their grievances and feelings, while taking care not to hurl accusations or assign blame. Similarly, defendants can take advantage of a joint session by listening empathetically and, when appropriate, by accepting responsibility and offering an apology for any improper conduct.

Employment disputes also offer a unique opportunity for the parties to collaborate with one another to find creative non-monetary solutions in certain situations — solutions such as letters of recommendation, re-training, reasonable accommodations, departmental transfers, etc.

Another critical difference between many employment disputes and other types of disputes is the statutory right for a prevailing plaintiff to recover attorney fees. California’s Fair Employment and Housing Act (“FEHA”) and various federal civil rights statutes provide what is essentially a one-way right to recover attorney fees because a prevailing defendant has no reciprocal right unless the court concludes that an action was “frivolous, unreasonable or without foundation.” For that reason, early attempts at resolution are essential — as are early and judicious use of Statutory Offers to Compromise, pursuant to CCP Section 998 — lest the dispute be driven by accumulated attorney fees rather than the actual merits of the claim.

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

As always, it would be my pleasure 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