Another grievance question

Caveat Yankee

I am the attorney for a mental health facility in eastern Montana. The facility employees are non-union. The facility has a three-step grievance procedure. Steps 1 and 2 state that the "employee shall" do such and such, i.e., in step 1, employee shall informally address adverse action with direct supervisor, and in step 2, employee shall address adverse action with facility administrator. Step 3 states that if the employee is unhappy with the outcomes of steps 1 and 2, he or she "may" ask that the facts of the situation be heard by the facility's Board of Directors and that the decision of the Board is binding upon all parties.

The employee's position is that he has exhausted the internal mandatory procedures by completing steps 1 and 2 and that he can now proceed in a civil action in Court since step 3 says the employee "may"... . The facility wants to have its cake and eat it, too...it wants to take the position that the employee has not exhausted the internal procedures, mandatory or otherwise, and therefore cannot go to Court. Montana law is not clear on the requirement to exhaust internal procedures....if some of the procedures are not mandatory. The law is clear that administrative procedures must be exhausted prior to maintaining a civil action (i.e., wrongful discharge, worker's compensation, etc.).

If the employee goes to Step 3 and is unhappy with the outcome, then the facility's position is that the decision of the Board is binding...and employee is denied the opportunity for his day in Court. I think that the facility is in an indefensible position with regard to Step 3, and an am trying to encourage it to take a firm position regarding Step 3 so as not to waste valuable resources arguing over a point that surely will tick off a Judge if we do end up in Court...i.e., that the facility is trying to jerk the employee around...that he MUST go to Step 3 to go to COurt...but if he goes to Step 3 he is bound by the decision. (The facts of this case are very bad for the facility, and it absolutely should be settled before litigation....but I am dealing with small town ultra-conservative thinking in these early stages, and reasonable minds are not yet prevailing...) What are your thoughts on the facility's position? Any suggestions on how to handle the Board's seemingly indefensible line of thought?

cebudragonlady

Suggest that you present a summary to the Board , if any, of other cases similar to this -i.e., when the employee went to Court rather than complete the internal grievance process. Summarize results of cases, with an estimate, if you can, of the hours and cost of attorney time involved. Ask the Board if they have the funds to pay for an "average" case.

Chari
[email]calter@iopener.net[/email]

Don D

I'm no lawyer, but am wondering how the organization can have a policy which acts to preclude one from exercizing his rights under law; going to court to aggrieve what he perceives to be an untennable wrong. And before you suggest that including that in a handbook gives you the right, let me ask you what if you were to have a handbook statement saying 'All employees agree to never charge anyone with sexual harassment while employed here'?

I also think your word, 'may', may have you backed up against a horizontal broomstick with no vaseline in sight. An attorney let that wording get by him?

I think the judge, if it ever did go to court would indeed raise a fretful eyebrow in your direction. Rather than try to convince a stubborn, conservative board of the error of their ways, shouldn't you be pursuing settlement with this fellow?

Having never sat in a law classroom, here is what I would suggest you do: Present to the Board a pictoral illustration down two columns, showing, on the left side what may likely happen if they maintain their position and, on the right, what may likely happen if they adopt your thinking. Sprinkle in a few dollar signs for visual impact.

In deference to their old, conservative ways, don't use powerpoint. The old flip chart will work best in this case.

Caveat Yankee

Thanks for your comments, Don. You conjur up quite an uncomfortable picture! I have indeed encouraged the Board to consider the employee's settlement offers. It continues to insist on maintaining its position that the only remedy they will offer the employee is preference over other applicants for any comparable position that becomes vacant. This really makes step 3 a futile, illusory and vain endeavor when it appears from preliminary discussions that the employee is unable mentally and physically to return to work....therefore, why waste everyone's time in going through Step 3 when the facility is unwilling to offer the employee a remedy other than reinstatement to the old job or preference in hiring to any new comparable job?

With regard to the blatant problems with this personnel policy, the attorney who drafted the policy manual has bowed out of this matter due to a conflict of interest. As is indicated in my initial question, when I accepted this case, I pointed out the problem with this policy as written. We are looking at the implications of amending the step 3 wording now as such amendment may affect us at a trial.

System

8-| What a sham. The board declares that its decisions are binding and that employees forfeit their legal rights. The board is basically declaring itself to be a sovereign nation.

James Sokolowski
HRhero.com

Shadowfax

As usual, Don is barking up the right tree! While most states permit some sort of arbitration or dispute resolution to be binding short of going to court, the arbitor or board must atleast have some semblance of neutrality. In Mi, an employer may have a panel of employees to decide these things so long as the panel is not controlled by the employer. I think your guy gets to the courthouse whether he goes before the board or not, and given the language he may be in a better position to forego the board than let them have a go at it, since the 'may' connotes an option, and the employer will attempt to argue the 'finality' of its decision if he goes before them. I think the Bd should lighten up their perspective, be advised they have an untenable position with regard to the finality of thier decision, and given your pessism of your position, try to work it out. Consider having a meeting of the Board and a retired judge or someone with some knowledge of these kinds of issues and see if some sort of accommodation cannot be reached before everyone spends a lot of money and gets even more entrenched. Then, consider a real arbitration clause and put it in place for the future.

marc

Posts to your query are on point and should help with some HR type guidance for your legal question.

I am wondering about your posting moniker. Caveat Yankee could mean beware yankee with lots of obvious questions/conclusions about that meaning. It could also mean you are a Yankee and that you file actions in court to delay judgements, etc. Given that you are a self-confessed attorney, that is probably the meaning you were going for.

Back to the point, I handbook is not usually intended to be a contract, rather it is a document explaining, in lay terms, a company's policy's. This particular policy sounds like it might not even be legal in that it attempts to limit employee recourse to our judicial system without consideration to the EE. No wonder the drafting counselor had a conflict of interest - he/she did not want to defend this document in court and thus pulled you in for a one-off assignment. It seems to me that this attorney should be helping you with the board, as personally embarrassing as this might be, by explaining the untenable position the employee is in.

I think the EE has properly analyzed his position and has taken the action necessary to protect himself. If the company's case is as weak as you seem to think, the board may eventually get an expensive lesson by being so intractable.

Then, don't juries generally award larger punitive damages when they think one side is being particularly unreasonable with respect to their actions or positions?

You also know the policy needs amendment, but doing so now just points to the weakness of the position with respect to the current employee challenging the process - surely the board realizes that you cannot have it both ways, that is, recognizing the need to change the policy on one hand, but refusing to show any flexibility to this EE on the other. These positions seem mutually exclusive.

WT

I will take a little different approach than some of the other responders. I think your policy of having the Board settle grievances in a nonunion environment is fine. Many issues from vacation policy, attendance, or benefits could be easily settled this way. Not knowing the exact issue hinders consideration of the problem.

However, nobody can give up statutory rights (i.e. Title VII, ADEA, ADA, FMLA, PDA) without a clear and knowing waiver. Even with a union and contract, an employee can fail at arbitration and run to the EEOC with a statutory claim. Many of these waivers require a waiting period, advice to consult legal counsel, and the proffer of something of value to compensate for the waiver. Tell the Board that they are unlikely to prevail with their current legal theory. However, if they insist, fight it on terms you are given. In any organization, it is sometimes necessary to lose a fight in order to be believed in the future. Put it down to education.