The Facts on Severance Pay: What's Required and What's Advisable

Severance pay has recently become a topic of discussion with a client and, as a result, I took some time to do a little research. Severance pay is extra compensation (treated like regular wages) paid to employees as a result of involuntary termination or as an enticement to voluntary termination. Since severance pay is treated as wages, it would go on the employee’s W-2 just like any other wage. If you are in a situation where you might consider offering or providing severance pay, there are a few facts that you should be aware of.

1. Severance pay is not covered under federal wage and hour (FISA) legislation but is covered in a few state statutes. For example, the State of Maine requires severance pay in the case of relocations or shutdowns. Therefore, an employer should check with their state department of labor before determining whether to offer severance pay and, if offered, how much to provide.
   
   

2. While many employers provide severance pay for managers and executive level employees, very few provide it to hourly employees. This distinction may very well be an issue addressed by state statute, so one should be careful in making this decision.
   
   

3. Severance pay is usually provided as either a matter of the employer’s general practice or a specific policy. Only infrequently is it provided on a case-by-case basis.
   
   

4. Severance pay, in many situations, would be better considered as a severance package. Within this package you might have matters related to insurance, pension benefits and severance pay. If so, the employer should keep in mind that parts of the severance package may be a requirement of statute and other parts a voluntary action on the part of the employer. The employer should maintain the ability to separate the voluntary from the required in the event that agreement cannot be reached on the whole package.
   
   

5. Frequently, companies that provide a substantial severance payment will condition the payment on the employee’s agreement not to take any legal action against the employer. In such a case, the employer should be aware that the employee has the right to refuse the severance pay and proceed with the legal action – assuming that legal action can be taken. At least one source that I found indicated that the courts are more responsive to a no-lawsuit restriction on severance pay when it is a matter specifically addressed in the company’s policies.
   
   

6. Obviously, if the employee has the right to accept or refuse the severance package then the employee also has the right to negotiate the terms. Since there is no duty to bargain, the employer can reject the employee’s efforts to negotiate the severance package or can attempt to take advantage of what might be an opportunity to reach agreement that would ultimately save the employer a substantial amount of money and be to everyone’s advantage.
   
   

7. The amount of severance pay is typically related to the number of years of service; with a cap often being placed on the total number of years for which credit will be given. For example, a one-year employee may be granted a one-week severance package, a ten-year employee might be given a ten-week package and a seventeen year employee a fifteen week severance pay benefit where the company has a fifteen week maximum benefit. Since severance pay is not a matter of law, there is no rule as to what is reasonable. Consistency in the employer’s severance pay activities would be advisable.
   
   

8. Generally speaking, you should not expect an employee to make a final decision with regard to severance pay the first time you make the offer. See it as a multi-session negotiation. For example, you might have an initial sitting with the employee in which you lay out the broad perspectives of your severance package with the conclusion that you don’t want any response from the employee at this time but would rather have the employee take it and study it for a week and come back so that you can discuss it. A week later you may sit down with the employee and work out elements such as matters related to pension, medical insurance or other things involved in this package with additional discussions over the amount of severance pay and the no-lawsuit provision. You can then schedule an additional follow-up sessions. On the other hand, the employee may be fully willing to resolve all matters during the first or second session and, if so, proceed to settlement. Always remember that time means everything in negotiations and what a person is not willing to accept at one point in time they may be fully willing to accept at some later point in time.
   
   

9. Severance pay can be given as a one-time payment or in multiple payments. Multiple payments have substantial value if there are conditions that the employee needs to meet that are part of the severance package.
   
   

10. The following is some sample severance pay policy language that you can tweak to meet your specific situation:

SEVERANCE PAY

A. An employee who has been employed for a continuous period of at least 18 months and who is involuntarily separated from employment for reasons other than misconduct or unacceptable performance and who is not eligible for an immediate annuity shall receive severance pay.

B. The amount of severance pay shall be one week’s salary for each year of the first fifteen years of service and two weeks salary for each year of service after fifteen. No severance pay will be granted for service after the twentieth year.

C. Upon separation, the employer shall pay the employee’s severance pay at monthly intervals in an amount equal to his or her basic monthly salary until such time as all severance pay that is owed has been fully paid to the employee.

After having spent a substantial amount of time researching this question, I have arrived at the conclusion that for most of my clients it is wiser not to have a specifically written severance policy than it is to have such a policy. A specific severance pay policy may unduly restrict a small employer. Also, there is nothing that prohibits the negotiations of severance pay, on a case by case basis, and conditioning those negotiations on the specific facts of the involuntary separation.

Finally, since I am self-employed, I have no one with whom I can negotiate my own severance pay. I decided to resolve this matter by setting up a personal severance pay fund in the event that I terminate myself and I am beginning to set money aside in that fund. In the event that any of you feel sorry for me, have an overwhelmingly generous spirit and would like to contribute to my personal severance pay fund, I will gladly accept such donations.

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Guidelines for the Use of Administrative Leave

A recent consulting activity raised the question of the appropriate use of administrative leave. Sometimes it may be necessary to place one of your employees on leave. The most common reason for doing this is to safeguard the employer during an investigation into allegations of misconduct. Administrative leave includes both the temporary removal of the employee from all job duties or the temporary re-assignment of an employee to a different job pending an investigation. Administrative leave is not a disciplinary action, and it should not harm the employee’s record or performance appraisal. If the investigation confirms wrongdoing on behalf of the employee, disciplinary action should be imposed following the investigation.

You, as the employer, may question whether the nature of the alleged infraction is significant enough to warrant placing the employee on administrative leave. The critical question is not the seriousness of the infraction, but rather the vulnerability of the employer. If the nature of the infraction is such as to create a potential liability for the employer if the employee continues to perform his or her duties during the investigation, then administrative leave is appropriate. For example, if you believe an employee is embezzling money from the organization, the minimum prudent response is to remove that employee from a position where he or she can continue to take money. Similarly, an employer would not allow an employee to continue to drive a school bus during an investigation into a drunk driving charge. Were an accident to happen, the liability would be enormous.

In implementing an administrative leave, there are a few basic rules to follow:

1. Your actions must be consistent with your personnel policies and/or your labor contract.

2. You should have a consistent policy. Paying one employee who is on administrative leave and not another could lead to legal action or allegations of disparate treatment. Also the employer should be clear about whether an employee can use any accumulated vacation or other paid leave to compensate for an unpaid administrative leave.

3. In making a determination of whether administrative leave is appropriate, you should consider the potential legal liability of allowing the employee to remain at work, the state of mind of the employee, and whether the employee could potentially cause more harm or disruption if he or she remains at work during the investigation.

4. The law does not require that you pay an employee when they perform no work. Most employers, however, find it wise to, at minimum, reimburse an employee for lost wages if he or she is exonerated. Otherwise you may find yourself dealing with a bitter employee.

5. If you call the employee in for an investigative interview, you must pay the employee for this time. I recommend a full day’s pay as an incentive for cooperation.

6. If an incident occurs during the workday, you should send the employee home with pay for the remainder of the day. If the employee is exempt from overtime, you should always pay the employee for a full day when they are sent home, regardless of whether the remainder of the leave will be without pay. Exempt employees by definition are not “hourly”, and employers should not dock their pay in any increment less than a full workday. Doing so may lead to challenges of the employee’s exempt status.

7. Be sure the employee is aware of how they will be kept informed of the status of the investigation. Employees should be told that they must be available during working hours to attend conferences or interviews related to the investigation. Also it’s a good idea to designate days and/or times that the employee should contact their supervisor or Human Resources to check in.

8. An administrative leave may be turned into a suspension without pay if the investigation establishes charges sufficient to justify a suspension but not sufficient to terminate the employee. “Time served” thus becomes the discipline and gets the employee back to work.

9. To avoid disputes later, always follow up with the employee in writing. Send a memo to the employee notifying them that they have been placed on administrative leave, the reason for the leave, whether the leave will be paid or unpaid, and how contact will be maintained during the leave. Also, if your labor contract or organizational policies provide for a hearing or conference with the employee, the memo should state the process and timelines for requesting such a process. Keep a copy of the memo in the employee’s file.

10. It is in your best interest, and the employee’s, to conduct the investigation as expediently as possible. Remember, you are either losing money to pay an employee to stay home, or creating a financial hardship for an employee who is home without pay.

The time to create a policy on administrative leave is not when an incident occurs. If you do not have a policy developed, you should consider creating one. Be sure that your policy is clear and utilized consistently and that your managerial staff are trained on the use of administrative leave for investigation of wrongdoing. Hopefully, you won’t need to use your policy, but it’s best to be prepared.

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Tattoos and Piercings Galore: Implementing a Modern Dresscode

I recently came across a problem area that I thought might be important enough to put into an e-zine. The issue has to do with body piercings and tattoos. What are the employer’s rights with regard to “controlling” employee decisions to decorate their bodies with tattoos or provide uniquely situated piercings? Of course, what I mean by the term “employer rights” involves the current state of employment law as it implies to any right of the employer to control-sanction-prohibit the free expression of employees related to decorating their bodies.

My first response to the above question is to encourage all of you to acquire the book Weirdos in the Workplace by John Putzier, published by Prentiss Hall with a 2004 copyright. This book briefly summarizes, in a somewhat entertaining fashion, the interaction between employment law and a host of issues related to unusual employee behavior in the workplace. For our purposes regarding this e-zine, page 48 from the book will do nicely:

Art is a GenY individualist whose hobby is to “personalize his body.” He has a bolt through his nose, a stud in his tongue, rings through his eyebrows and tattoos in all the right (or wrong) places. Art thinks of himself as, well… exactly that… living, walking “art.”

The book goes on to point out that “self-inflicted diversity” is not a protected class. “Art can express himself as painfully as he wishes when he is off the clock,” but the employer has substantial rights with regard to limiting body art in the workplace. The employer can require the removal of hardware, require that tattoos be covered with long sleeves, turtle necks, etc., can make job assignments where body art cannot be covered and can choose not to employee based on a reasonable decision that in-your-face body art will not present the desired public image.

To put the matter in perspective, body piercings and tattoos are considered by the court in the same category as dress codes. With this in mind, keep in fact the following four generalizations about employment law as it applies to dress codes:

• The courts have always permitted employers to reasonably determine their public image which includes the right to set a dress code. Thus, IBM always had the right to require its employees to wear white shirts or blouses, ties, etc., a right that is enjoyed by any other employer.

• Consistency is a critical factor that is almost always an essential tenet of employment law. That does not mean that all employees have to be treated exactly the same, but any differences should be explainable in business terms.

• Your dress code needs to reasonably reflect the type of work that is being performed. For example, an old court case distinguished between employees who interact with the public and those who have no interaction with the public. In the first case the courts permitted the employer to require that all women wear skirts to work – I did mention that this is a very old court case, did I not? In the second case (no public contact) the courts found that requiring skirts was inappropriate because it had nothing to do with the company’s public image and was a hardship on the employees.

• Sensitivity has to be paid to the relationship between the employer’s right to impose a dress code and issues related to discrimination around gender, race, religion, etc. If the dress code is perceived to discriminate against a protected class with no discernable business necessity, it can get thrown out. For example, requiring all of the young women in your employment to wear miniskirts will get you in serious trouble unless you are Hooters or some other similar establishment. From my perspective, if you do not understand why this is true, you are already in serious trouble.

The bottom line is this, you have, as the employer, a reasonable right to insist on compliance with a dress code which can include covering up tattoos, removing hardware and dressing appropriate for the position. The dress code can be stricter where employees are required to wear a uniform but can be imposed in a non-uniform situation. For example, the Air Force provides very strict guidelines for how Air Force personnel must present themselves. In this regard, note the following:

Females in uniform or in civilian clothes while on duty, may wear one small, spherical, conservative, diamond, gold, white pearl, silver pierced or clipped earring per earlobe; the earrings in both earlobes must match and the earrings must fit tightly without extending below the earlobes. (AFI 36-2903, Table 2.5)

I cannot imagine any of you who receive this e-zine wanting or needing to be this strict. On the other hand, if you believe the above requirement is a little rigid, then go to the internet, find the Air Force Uniform Policy and check what it has to say for men.

Let me close with this thought, the issue for most of you who read this e-zine is not going to be what you are permitted to do under law but rather what you can effectively implement with your employees. Creating a great deal of negative energy in your workplace by abruptly implementing a harsh and restrictive dress code is hardly what you want to do. At the same time, if you find that the body art of certain employees simply won’t cut it, then it is time to beef-up your dress code because the failure to take action will ultimately limit your effectiveness as an organization. If you need some help writing new policy on this matter, I will be glad to help.

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A Thoughtful Review of the Latest Changes to the Fair Labor Standards Act (FLSA)

Having received a couple of requests for info on the new overtime regs, I decided to provide a comprehensive overview of the changes to the Fair Labor Standards Act. Basically, despite Congressional challenges, new federal overtime rules are in effect that substantially change the overtime status of millions of American workers. The “Overtime Security Rule” is a revision of the Fair Labor Standards Act (FLSA) which was implemented by the Department of Labor (DOL) on August 23^rd of this year. The revision of the FLSA represents only the third time that overtime rules have been updated since the FLSA went into effect in 1938. The last revision occurred in 1975.

How Have the Rules Changed?

The most significant changes in the 474-page revision of the FLSA are an increase in the salary cap of workers who are automatically eligible for overtime and a change in the determination of which employees are exempt from overtime pay.

Under the new rules, any employee who earns up to $23,660 per year is automatically guaranteed overtime whenever they work more than forty hours a week, regardless of their job duties. This is a substantial increase from the previous cap of $8,660 per year, and covers everyone from blue collar workers to clerical staff to managers, regardless of whether they are paid on an hourly or salary basis. The DOL estimates that this change will grant overtime protection to some 6.7 million workers nationwide.

The second change redefines which employees are considered exempt from overtime. Under the new rules, workers who make more than $23,660 per year are exempt from overtime if their duties are professional, administrative or executive. The law also generally excludes anyone who makes $100,000 per year or more from earning overtime, regardless of their duties or salary basis. Critics of the new rules estimate that this change will eliminate overtime protection for nearly 6 million workers.

Who’s Entitled to Overtime?

So how can an employer know for sure which employees should receive overtime? First, for employers who have employees covered by a collective bargaining agreement which gives them more generous rights to overtime than the new rules, the terms of the labor agreement supersede the new rules.

Second, employers should be aware of what the laws are in their particular state. In states that have different overtime provisions, employers must abide by whichever standards are more beneficial to the employee. States that have separate overtime regulations include: Alaska, Arkansas, California, Colorado, Connecticut, Hawaii, Illinois, Kentucky, Maryland, Minnesota, Montana, New Jersey, North Dakota, Oregon, Pennsylvania, Washington, West Virginia and Wisconsin. A quick trip to the web site for the DOL of the state will provide any desired information.

After taking these two factors into consideration, there are three major tests for determining overtime eligibility.

1.) How much does the employee earn? If the employee makes less than $23,660 per year ($455 a week), they are automatically entitled to overtime, regardless of their duties or salary basis.

2.) What is the employee’s salary basis? Employees who earn more than $23,660 per year and are paid on a “salary” basis are generally exempt from overtime. Salaried employees are paid a fixed salary per pay period, regardless of hours worked, as opposed to employees who are paid “by the hour”. Hourly employees are generally entitled to overtime pay.

3.) What are the employee’s duties? White collar employees who earn more than $23,660 per year are exempt from overtime if their duties are primarily managerial, administrative or professional.

“Managerial” employees are defined by the rules as those whose primary duty is the management of an enterprise (such as a department, store or subdivision), those who customarily and regularly direct the work of two or more other employees, and who have input into personal decisions such as hiring, firing, promotion, etc. (regardless of whether the employee has the sole discretion to do so). Unless otherwise guaranteed overtime by a collective bargaining agreement, employees in this category generally include: executive staff, managers, assistant managers, supervisors and team leaders.

“Administrative” employees are those whose primary duty is performing office or non-manual work directly related to the management or general business operations of the organization. Administrative employees also exercise “discretion and independent judgment”. Unless otherwise guaranteed overtime by a collective bargaining agreement, employees in this category generally include: administrative assistants, executive secretaries, school principals and vice-principals, school counselors, human resource staff, purchasing staff, public relations and quality control staff.

“Professional” employees are those who are “learned professionals” or “creative professionals”. “Learned professionals” are generally those whose jobs require advanced knowledge of science or some other field of learning which is gained through specialized intellectual instruction. “Creative professionals” are those who perform work requiring invention, imagination, originality or talent. Unless otherwise guaranteed overtime by a collective bargaining agreement, employees in the professional group include: restaurant chefs, nurses, financial service industry workers, insurance claims adjusters, teachers, lawyers, engineers, actors, musicians, dental hygienists, pharmacists, journalists and funeral directors.

The law also guarantees overtime to several groups of workers, regardless of salary or duties, including: blue collar workers (such as carpenters, craftsmen, construction workers, etc.), “first responders” (such as police officers, fire fighters, paramedics and EMTs), computer workers (such as system analysts and computer programmers), and inside sales employees.

For more information on determining which employees are exempt and non-exempt, check out the DOL’s website which includes listings by position and exemption type, exemption tests, fact sheets and frequently asked questions. The website is located at www.dol.gov/esa/regs/compliance/whd/fairpay.

What Steps Should Employers Take to Comply?

There are several steps all employers should take to ensure that their organization is in compliance with overtime rules.

1. Review your state law on overtime

2. Review the provisions of any collective bargaining agreements

3. Check the salary levels and salary status of employees

4. Revise job descriptions and clarify which employees are exempt

5. Train HR and payroll employees on the new rules

6. Consult with legal counsel as needed

Finally, before reclassifying employees as exempt under the new rules, be sure to consider the effect it will have on employee morale and retention. Employers always have the right to voluntarily pay overtime to any worker. As with any new rules, it’s only a matter of time before some of these new overtime provisions are challenged in court.

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Sick Leave and Chronic Absenteeism

I recently came across a study that caught my interest. Have you ever wondered how many of employees who call in sick are actually ill? A 2003 study by Harris Interactive found that only 36% who claim to be sick are sick. Not only is this figure disturbing, the trend is disquieting. It seems that back in 1995 45% of those taking sick leave were sick; we have lost 9 % in 8 years.

A summary of the full study is available at www.cch.com in an article titled Unscheduled Absence Survey. The actual data on the reasons given for using sick leave, as provided by Harris Interactive:

36% Sick

11% Stress

13% Entitled to their sick leave

18% Personal matters

22% Family Matters

100%

The study also viewed the data from the standpoint of companies with very good morale (12%) and good morale (44%), fair morale (34%) and poor morale (10%). As you might guess, morale did have a marked impact on absenteeism. Companies with very good/good morale had an overall absenteeism rate of 1.8% compared with 2.1% for companies with fair/poor moral. More importantly, Companies with very good/good morale saw an increase in absenteeism of 34% compared to 15%.

There was one other thought-provoking piece of information in the study. It seems that there are a growing number of employees who have decided that they would rather be sick at work than to stay home (presenteeism). Suffering at work, for these employees, is better than suffering at home and you get to save your sick leave for more important things. Obviously, from the employer’s perspective, this can be more of a problem then absenteeism.

There are a number of different responses that one might take to this information. One response is to view it in the context of data, as reported in e-zine #6, that employees are on average working 199 more hours per year than they were thirty years ago. In that case, the use of sick leave to reduce stress or deal with personal/family matters may seem quite reasonable.

Another way of looking at the problem is to find in the data support to beef up your absenteeism policy. The implementation and regular enforcement of a no-fault absenteeism program may very well be justified and cost-effective. Details on how to implement such a program were provided in e-zine #3 and I will be happy to resend that e-zine if you did not receive it or have misplaced it. However, 96% of companies responding to the survey indicated that they had a discipline policy related to absenteeism. This fact makes me wonder both as to the consistent application of the policy and/or the overall effectiveness of formal discipline as an approach to address the problem.

Finally, the survey clearly provides support for modifying the employer’s approach to the larger issue of structuring the program by which employees take time off from work. The old approach is to make a distinction between time off that is an earned benefit (vacation and holidays) with time off that is protected in the form of an insurance policy – only those who need it should use it (funeral leave, sick leave, personal leave, jury duty). The survey mentions that more and more employers are changing to a single paid time off program (PTO) by combining all of the above. This seems fully justified since so many employees do not make a distinction between the two. Moreover, a PTO program is so much easier to administer.

Given the significance of the absenteeism issue, I have decided to devote the next e-zine to laying out the issues and approaches to a PTO program. So, stay tuned, there is some good stuff to come.

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The Limits of Conflict Management Training

Interpersonal conflict resolution is often an area that clients want to discuss. Generally, the topic is approached because of a specific work team that is going through a highly conflictive stage. Many times the issue is presented to me through a question like, “Do you think we can improve the situation by providing interpersonal conflict management skills training?”

I have a very strong belief in the value and importance of providing training within an organization. For example, I have found that providing skills training in conflict management to new supervisors can have substantial payoffs to the organization. However, there are many situations where I do not believe that training is the answer to the problem. Using training in an attempt to reduce the conflictiveness of a work team is one of those areas.

Yes, it is often true that individual team members can benefit from the conflict management training. I am very well aware of programs that I think have value for the individual. For example, it is reasonably easy to structure a training program around the book Getting Together by Fisher and Brown. I still use this book in one of my graduate level courses and have always found it to be a very helpful guide on successful strategies and tactics for dealing with conflict and conflictive situations. The essence of the book is to teach the skill of “unconditionally constructive behavior.” The views that are set out in the book have nothing to do with being nice but rather focus on the important life lesson that conditioning your constructiveness on the behavior of another is to your detriment. Why let someone else decide whether you will act constructively or destructively?

Now I believe that there is value in providing training on unconditional constructive behavior for members of a highly conflictive work team, but the impact of this training on team alignment and cohesiveness will probably be small. The fact is that improving individual behavior does not generally bring around a re-orientation of the team as a whole. That issue needs to be confronted directly in a process that is different than simply providing a training program. I have had the opportunity in the last couple of years to witness a number of teams that have successfully gone through significant, positive realignment. There are four basic elements in the work that I do to bring about this alignment. These elements are outlined as follows:

• The vast majority of employees in a work group that is conflictive would prefer to be on a different track. The stress that the conflict creates on their personal lives and the negative impact on performance is the motivator for change. When provided a viable method for improving the work environment, employees will usually make this choice particularly when given the opportunity to make the choice as a group.

• The most effective approach is to have the group focus on creating what it wants. A far less productive approach is to have the group focus on what it wants to get rid of. This latter approach frequently generates ill will and finger pointing behavior. The basic concept is to facilitate a process that will help create a positive, affirming culture.

• A team culture is grown, not imposed. Since it is grown the group must learn to develop processes for nurturing the desired culture. Without these processes, the affirming culture can easily die. My approach to the group begins by taking it through an activity designed to clarify what is wanted. The second step is to help the group design the program by which it will bring about the desired culture.

• The final step is to build team commitment to what has been designed. The central message of this element is that our actions will speak louder than or words – how original. We need the commitment from every team member to honor what we have agreed to.

The bottom line is that all too often having individual team members grow in their personal skills does not address the needs of the team to grow as a team. Good training is helpful for the development of personal skills. However, a facilitated process, which may incorporate some training, is the only program that I have seen move a whole team forward. If a work group has relationship problems, then those problems need to be addressed as a team.

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Spotlight on Integrity

I recently received an informational request, asking whether I could provide a one-day training program on the topic of Integrity. Frankly, I was somewhat surprised with this request. For one thing, I have never heard of a full-day training program on a topic like integrity. There are many programs on the general topic of ethics, but to single out one element seemed unusual.

The more I thought about it, however, the more I found myself intrigued by this request. I began to realize that while I have not presented a full-day training program on the topic of integrity, that subject is woven throughout many of the training programs that I do conduct. For example, a program that I frequently conduct deals with the topic of supervision and the effective use of “power.” A basic premise of that course is that power used with integrity builds relationships, while power used without integrity destroys relationships. Likewise, much of the work I do in dispute resolution/prevention emphasizes that integrity, or the lack of integrity, is at the heart of our ability to deal effectively with problems.

As a result of my reflection, I submitted an outline for a training program that was based on two primary premises. First, my sense is that we do not directly seek integrity. Rather it is a fundamental element in the emergence of the desired outcome. Wile integrity for its own sake is quite obviously significant, it is the impact on organizational life that is the justification for creating a training program on the topic. Second, preaching on the topic of integrity will have almost a zero impact on an audience. On the other hand, a group of participants can learn from good examples and stories. More importantly, interactive dialogue will have to be the cornerstone for the design of the training program. After all, I doubt seriously that any of us can hold ourselves up as the model for integrity (let he who is without sin cast the first stone).

With the above two points in mind, I provided the organization the following outline for a training program:

1. Integrity: The gateway to a positive workplace culture.

2. Integrity: The gateway to powerful relationships.

3. Integrity: The gateway to constructive collaboration.

4. Integrity: The gateway to personal happiness.

As part of the work that I do with different organizations, I regularly critique the response to an EEOC complaint. Many of you have been there and know of what I speak. A question that is always asked on the initial EEOC complaint is whether the organization wishes to mediate the problem. I have a standard response. If the complainant has been honest in his or her statement of the complaint, then there is room for mediation. If the complainant has been substantially dishonest in his or her statement, the only thing to mediate is honesty. Mediation doesn’t handle the topic of honesty very effectively.

What I overwhelmingly have found is that complainants often take the position that he or she was a model employee and that the employer, for reasons of age, gender or race, has chosen to mistreat this model employee.

My recommendation not to mediate a case that has a high level of dishonesty in it is predicated on my experience as both an arbitrator and a mediator. As a mediator, I cannot and do not choose to address the subject of integrity. The mediator is not him or herself a part of the substantive discussions. Therefore, it would be difficult for the mediator to bring up the issue of honesty. As an arbitrator, I routinely make a judgment about the integrity of individuals who have testified. The judgment, at times, is extremely harsh. To put it bluntly, the award simply states, “you lied, you lose.”

Returning to the EEOC complaint, an EEOC hearing officer does have the same ability to make an evaluation as to who is “correct” as to their position on the point of dispute. This ruling does involve making a judgment about the integrity of the person’s position. If the complainant has been dishonest, the hearing officer can so rule. If the organization has been dishonest, the hearing officer can also so rule.

I would like to close on a positive note. I am very much looking forward to the opportunity to conduct a one-day training program on the topic of Integrity. It will be a unique, new challenge and I believe it will be a great addition to the body of work that I have been developing related to building a positive culture in an organization.

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