INTERVIEW ON THE PRICE OF BUSINESS SHOW, MEDIA PARTNER OF THIS SITE.

Recently Kevin Price, Host of the nationally syndicated Price of Business Show, interviewed Michael Marino.

The Michael Marino Commentaries

There likely is no quicker way for an employer to brew a dispute, and trigger litigation,  than to act in a strident manner, or in a manner that is perceived, rightly or wrongly, as engaging in disparate treatment of employees.

We all know the scene:  Suzie came in late, with no apparent adverse consequences. Joe came in late, and was given a last clear chance warning? Do we really know what happened? Probably not. Human resource situations generally are not publicly discussed, which often leads to unfounded speculation and inaccurate conclusions. Nevertheless, announcing to Joe discipline is being applied to his actions, with nothing more, is receipt for leaving a bad taste in employee relations.

We know most companies act in good faith and adhere to the fundamental premises of procedural and substantive due process. This requires Notice: these are the rules to be adhered to if you want to be successful working here. Notice of rules, and then an alleged violation of a rule you did not follow, is known to result in an adverse employment action. Notice and an opportunity to respond is the heart of procedural due pross.

Next is substantive due process: does the adverse action taken by the employer fit the “violation”? Assuming these core principles are followed why do so many adverse actions result in litigation? One reason is the perception of the employee that he or she was treated differently. In other words, the punishment may fit the crime,  but the same punishment was not administered equally to others, similarly situated. This is the basis of “discrimination “or disparate treatment. The same acts of omission occurred, but one person was treated differently,  allegedly because of a personal characteristic that is unrelated to the violations. Federal, state, and local laws offer many procedures that ensure employment decisions are made on the merits, and not based on age, race, national origin color or creed.

Those legal protections are important. Either side may be “right”. An employer may have a legitimate business reason why a particular employee was affected by a decision, whether a layoff, reduction in force, or misconduct. The individual employee many not know how others were treated or may not understand the process, and believe the only response is to lash out with filing a format government agency claim and eventually a lawsuit. Such scenarios lead to employers looking for way to preempt misperceptions and try to provide a framework for understanding the basis of the decisions. One approach that potentially mitigates ris exposure to litigation we can borrow from our discussions of the art of negotiation: the “coffee conversation”.

In the world of labor relations, there are many scenarios where employers have to deliver unwelcome news: layoffs, plant closings, or in the purchase of an existing union entity, raising the concern by employees whether are we accepting the union or the existing collective bargaining agreement, or contesting it. Having an informal, off the record, meeting “for coffee” with your adversary enhances greatly the opportunity to later negotiate,  and apply our principles of negotiation, to reach a successful resolution. “Coffee” meetings provide your adversary, or the adversely affected employee,  to understand and recognize what’s coming. This does not imply the ultimate decision is any easier or even changes the employer’s position. It does however avoid your adversary from being blindsided. When there is no prior knowledge of what is coming, or more importantly, why?

Over coffee, such discussions can be aired out informally. Points and counterpoints can be made. Emotional reactions, or outbursts, can be aired privately. This avoids the later need for posturing. Even if your adversary storms out to the room, better to know that reaction in advance, so you can plan for it when the official bell rings.

The coffee discussion can be used in all types of employment settings. At the individual level, the chance to have coffee, and give Joe a heads up—Joe there will be formal investigation and review, but this is what has been presented to me—allows face saving and the chance to process what has happened, and what’s coming. It also allows Joe to note outside of the legal forum, “hey, that is not what happened, have you spoken to…” Which may provide the employer a chance to ensure it has it good information to act on.

In the union setting such an exploration must include the union representative,  which can be helpful since you can then gauge in advance what reactions are coming.  Once again, the chance to air out a scenario over coffee could lead to a much smoother formal process and enhance the opportunity for a solution outside of a legal challenge. Both sides now know what is coming.

Not all coffee tastes good! However, insights can be gathered, including– “no way” we are going to fight this!. Better to learn that now, rather than later. Refusing to have coffee also provides insight.

In utilizing the coffee process the employer is also demonstrating respect– for the process and the person—even if there is disagreement. Often the coffee becomes a cappuccino, and ends up tasting very good!

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