Preparing a workplace dispute resolution policy is not difficult, but it does require some thought by the employer and HR professional.
First and foremost, there needs to be some thought put into the decision regarding whether to even have such a policy. The primary motivating factor for nearly all employers is the time and cost of employment litigation versus handling workplace disputes internally. This internal dispute resolution is either handled by HR or through the use of an outside mediator or arbitrator. The latter has proven time and again to be a better and more efficient system.
Once the decision is made to adopt a workplace dispute resolution policy, the employer must determine what claims made by the employee will be covered by the policy and what claims will not be covered. While the list of claims that will be covered is quite lengthy, there are generally only a few claims that a policy will exclude. For example, claims for workers’ compensation and unemployment benefits must be pursued through a state administrative agency and are not properly governed by an internal dispute resolution policy. Often times ERISA/pension plans have their own internal dispute resolution plans which must be followed.
Further considerations in drafting such policies includes identifying the circumstances under which an outside mediator will be retained. Most sample policies provide that if a matter cannot be resolved satisfactorily by the HR professional, an outside mediator will be hired, at the employer’s expense, to attempt resolution of the claims. Should that effort fail, many policies then provide for binding arbitration by an arbitrator knowledgeable in employment law. The American Arbitration Association has a list of trained employment arbitrators and can assist the employer in developing the rules for arbitration and the administrative handling of the claims. As with mediation, the employer will bear all the expense of any arbitration.
Although adopting a dispute resolution policy proves to be beneficial, identifying those employment situations requiring dispute resolution, either internally or through the use of a mediator, is more of an art than a science. I am always here to provide assistance, so please let me know if there are questions or if you would like to explore this topic further.