By Dan Gephart, December 4, 2023
There is one particular holiday taking place this month that seems especially apt for the current state of labor-management relations in the American workplace. Of course, I’m talking about Festivus, the holiday famously celebrated with the “airing of the grievances.”
Yes, Festivus is a real holiday. It’s been on this Earth as long as your venerable FELTG Training Director. It was created by writer/Readers Digest editor Daniel O’Keefe in the 1960s. Thirty years later, his sitcom-writing son Dan wrote the holiday into an episode of Seinfeld, and suddenly there was Festivus for the rest of us.
Back to those grievances. They are responsible for a lot of the work you do and, in turn, a lot of our training. Here’s a little secret more people should know: Most disputes in the Federal workplace, whether they start out as grievances, EEO complaints, or disciplinary appeals, settle before they ever get to a hearing.
Settlement seems at odds with the nature of grievances, which immediately put individuals into separate camps (parties), as well as the nature of Festivus, where celebrants wrestle after complaining about how much they disappointed each other. Yet, settling makes sense. A lot of sense.
It allows the aggrieved to return to work in a positive manner, helping productivity, teamwork, and morale. The flip side is having a case drag on, leaving an unpleasant pallor over the work unit. And there’s a financial benefit to settlement, too. Direct costs of formal complaints and litigation include investigation fees, deposition/copies, meeting rooms, travel expenses, damages, back pay, and attorney fees.
You can’t control whether the other party wants to settle. But with all the benefits of settlement, there is little incentive to not try. Here are some things to consider, whether or not you celebrate December 23 around an unadorned aluminum pole.
- Suggesting settlement does not mean that there is a flaw in your case. The settlement has no direct tie to liability or admissions of wrongdoing. It’s simply the most efficient and effective way to handle a dispute and allows you to get back to focusing on your agency’s mission.
- When you’re ready to discuss settlement, consider the physical environment, as Michael Wolf, director of the Federal Labor Relations Authority’s CADRO Unit, told us earlier this year.
- The location should be reasonably available and accessible.
- Cost should not be a factor in whether a party is adequately represented.
- The space should not create a perception of favoritism or bias.
- The need to work outside of “normal” business hours might be a factor.
- No party should feel unfairly disadvantaged by the physical environment, and it should be compatible with the mediator’s style, methods, and skillset.
- Be open to ideas. In fact, brainstorm settlement ideas with the other party. Give yourself and the other party space to develop unique and different solutions, focusing on those that provide mutual gain.
- Be careful to avoid these barriers to settlement success:
- Solving their problem is their If you’re concerned only about your own interest, you will not be successful in finding an effective settlement.
- Premature judgment. Don’t dismiss ideas out of hand. Explore and see where you can take them.
- Searching for a single answer. Don’t be afraid to widen the options for a solution.
- Assuming a “fixed pie.” You’re looking for a solution that works for all parties. It isn’t time to be measuring who gets more or less.
- Before you draft a settlement agreement, think through what you want to accomplish, by asking yourself these questions:
- What are the basic “terms of the deal”?
- How do I best ensure the performance of the terms?
- How do I protect the agency if the other side fails in the performance of the terms?
- Remember: Clean record settlements are back on the table. Executive Order 14003 revoked a previous EO that banned clean record agreements. You don’t have to do clean record settlements, but be aware that it is an option.
- If you’re going to write a settlement agreement, remember that it must be enforceable – and signed by someone who has the authority to enforce it. For useful guidance, register for Drafting Enforceable and Legally Sufficient Settlement Agreements on April 10.
In you follow these considerations and end up with an effective settlement, you have every right to declare it a Festivus miracle. But like all Festivus miracles, it’s easy to explain: You took the most direct and cost-efficient path to an effective and productive workplace. Settling a workplace dispute is a Festivus-worthy “feat of strength.”
Regardless of which holidays you celebrate – or don’t celebrate — I hope you have a joyous and restful end to the year. [email protected]