By William Wiley, October 17, 2018
This is the second part of a three-part series.
In a previous article, we explained how the American jury system could be used to demonstrate the differences among three standards of legally required proof:
- Beyond a Reasonable Doubt: 12 out of 12 jurors must agree (used in criminal cases).
- Preponderant evidence: 7 out of 12 jurors must agree (used in misconduct removals).
- Substantial evidence: 4 out of 12 jurors must agree; maybe even just 3 (used in performance removals).
Then, we teased that perhaps this concept could be used to build an alternative dispute system, a system to replace the tedious grievance/appeals/complaint/mediation processes now provided to employees by law or regulation. There are no normal people in the world who think that these processes are perfect, or that they make for a great way to deal with disputes in the federal workplace. You know how I know that? Because that’s how I define normal. If you think the existing systems are wonderful, you are not normal.
So how could this jury-evidence analogy work to be the basis for a fair expeditious system to resolve employee-initiated disputes? We are so glad that you asked. Here are the details of an Administrative Jury procedure:
1 – Workplace disputes arise when management takes or fails to take an action that an employee thinks is wrong. An “action,” for example, can be discipline, a reassignment, or a failure to promote; just about anything that can now be the subject of a discrimination complaint, grievance, or appeal.
2 – Currently, when an employee decides to dispute a management action, he is given access to one of several regulatory-defined redress systems. Those systems usually involve many steps of review, take a long time to play out, and cost taxpayers and the employee basket-loads of money.
3 – As an alternative to these procedures, management could offer employees who want to dispute an action the option of invoking resolution of the complaint by an Administrative Jury. This would be an option for management. Administrative Juries can occur only through mutual consent.
4 – If the employee selects the option of an Administrative Jury, the agency would then convene the jury by selecting 12 agency employees who have previously volunteered and trained to serve in the jury pool. The jurors would be selected at random, except that none could come from the employee’s work unit.
- “But, Bill, won’t that cost a lot of money? Some of those coworkers might come from far away and the agency would have to pay all that per diem.”
- Whoever asked this question clearly has no idea what it costs the agency to go through the traditional processes.
- Travel and per diem expenses for jury members is a drop in the financial bucket compared to the costs of traditional litigation.
5 – The jury convenes in a conference room at 9:00 AM. Each side, management and the employee, gets 90 minutes to speak to the jury.
6 – The party speaking first is the party that has the burden of proof in the dispute:
- Discipline – Management goes first.
- Discrimination Complaint – The employee goes first.
7 – Each side can have two Presenters; e.g.
- In a discrimination complaint, the two Presenters for the employee might be the employee and his attorney. Or, perhaps two witnesses who observed the discriminatory event and who can tell their story to the jury.
- In a removal action, the agency might choose to have the proposing and deciding officials as Presenters. Or, a human resources specialist and a witness.
- The parties can have more than two Presenters by mutual consent.
8 – The Presenters speak directly to the jury.
- There’s no direct nor cross-examination.
- Presenters can provide documents to the jury members.
- The jurors can ask questions of the Presenters.
9 – The parties are done by noon and excused. After lunch, the jurors discuss and decide the outcome of the dispute.
- For a discrimination complaint to be resolved in favor of the employee, seven or more jurors have to find discrimination.
- For discipline to be upheld, seven or more jurors have to vote to uphold the discipline
- For a performance removal to be upheld, four or more jurors have to find removal warranted.
10 – The jurors reach a decision sometime that afternoon, the parties are informed before COB, and the next day, we are back to running a federal agency.
“But, Bill, there must be pros and cons to the Administrative Jury process. Why haven’t you discussed those yet?” Because, dummy, we like to keep you coming back for more. [email protected]
Stay tuned to FELTG for the third installment in our Administrative Jury series.