Employment Matters Newsletter, Fall 2015

With Experimental Benefits Come Additional Legal Considerations –

Corporate experimentation, combined with innovative employment practices designed to promote more flexible work environments, may be transformative. These practices, if implemented properly and with the right intention, have the potential to dramatically change the workplace for the better. However, if introduced hastily with unstated goals that are inconsistent with the goals more publicly stated, these practices may be harmful to employees and company morale, potentially leading to lawsuits against the employer for labor and employment law violations.

These programs, which are being implemented by many start-up companies as well as larger corporations such as Netflix, Virgin America, Best Buy, Microsoft and GE, provide salaried employees with unlimited paid time off. If the company culture is aligned with stated purposes and goals, employees are empowered to manage their work and personal schedules in a way that serves their needs so long as they are getting their jobs done. Employers ultimately benefit from such policies because they can lead to a more engaged workforce and reduce administrative overhead by removing the need to process and track vacation, family leave and sick time usage.

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Our increasingly diverse society brings
people from different backgrounds
together daily, including in the work-
place. While knowledge and familiarity
can and should increase tolerance
and understanding, we seem to be at
the beginning of a new learning curve,
much like the early 1960s.
So while religious intolerance and
discrimination may still be directed
toward Jews, the victims today may also
be Muslims, Christians and members
of other religious faiths. And sexual
harassment, once recognized only
against heterosexual women, may now
include that directed toward members of
the LGBT community as well.
In the 1960s and 1970s, feminists ad-
opted the title “Ms.” to include married
and unmarried women, objecting that
a woman’s marital status should not be
relevant in their professional lives. Today,
we have a new title, “Mx.,” which may
refer to transgender persons, but may
also be preferred by some same-sex
married couples. So whether you call an
employee “Mr.,” “Mrs.,” “Ms.” or “Mx.”
may be either an offensive choice, an
erroneous assumption or polite.
D. What to Do?
There are many possible avenues of
recourse, starting with training super-
visors to recognize harassment and
discrimination against any employee.
Although litigation is always an option,
it’s not often the best option.
Each of the introductory scenarios could
benefit from mediation. Skilled neutrals
can help employees, supervisors and
HR personnel resolve an immediate
problem and build a respectful, cooper-
ative work environment.
Social mores change; the law adapts,
often through the costly and lengthy
processes of litigation and legislation.
Rather than enduring a costly litigation,
through both money and time spent,
consider employing an ADR system to
defuse a hazardous work environment,
reduce personnel turnover and promote
business efficiency. n
Hon. Sherrie L.
Krauser (Ret.) is a
JAMS neutral based
inMaryland. Her broad
experience, including
her special expertise
in resolving complex
civil and employment
litigation, informs her efforts to help
parties resolve diverse issues in the
context of fair and efficient ADR
proceedings. She can be reached at
skrauser@jamsadr.com.
Free Speech or Hostile Work Environment? (Continued from page 1)
¹ Civil Rights Act of 1964, 42 U.S.C. §2000, et seq.;
Title VII, 42 U.S.C. §1981.
² National R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002).
³ Stewart v. Rise, Inc., 791 F. 3d 849 (8th Cir. 2015).
4 Kamel v. Sanofi Pasteur, 2015 WL 926427 (United
States District Court, M.D. Pa. 2015).
5 Pryor v. United Air Lines, Inc., 791 F. 3d 488
(4th Cir. 2015).
Fall 2015 • employmentmatters@jamsadr.com • jamsadr.com/employment • 800.352.5267 • Page 4
Robin H. Gise, Esq.
is a JAMS neutral
based in New York.
She is an experienced
mediator and arbitrator
specializing in
business/commercial,
employment,
insurance and construction
disputes. She can be reached at
rgise@jamsadr.com.
When parties to an employment dispute
decide to mediate, an important issue is
whether they will make substantive pre-
sentations about the merits of the case
at the initial joint session. Both neutrals
and counsel differ significantly on this
question. Although much has been
written on the decline of the joint session
generally in mediation, employment
cases present particular dynamics that
can sway parties one way or the other.
An employment dispute—whether it
involves an individual employee claiming
discrimination, a group of employees
claiming wage and hour violations or an
executive seeking payment of a bonus—
often involves intense emotions on the
part of the employee and the employer.
Some attorneys, both employee and
employer’s counsel, believe that making
an opening presentation to the other
side will merely inflame emotions and
detract from settlement efforts. An em-
ployee’s lawyer may not want a client to
be subjected to the employer’s version of
why s/he was terminated, fearing that it
will be too painful. An employer’s lawyer
may believe that the client’s position will
only become more rigid and entrenched
after hearing from the former employee.
On the other hand, some attorneys
believe that a substantive opening
statement is meaningful and necessary.
It gives the employee a “day in court”
and an opportunity to tell the story
directly to the employer. It can also
communicate a certain message or
perspective. An employer’s lawyer may
want to convey to an employee that the
termination was a result of economic
factors, rather than performance, and
express the client’s empathy. In addition,
some employees’ lawyers insist that
the employee (as opposed to counsel)
make the presentation to the employer.
By having the employee make the
presentation, it sends a message that
the employee is fully engaged in the
mediation process. It can also demon-
strate to the employer how compelling
a witness this person will be if the case
does not settle.
As for neutrals, many are inclined to be
guided by the parties’ wishes. A neutral
who senses resistance from the parties
about opening statements will often
not insist on it. However, some neutrals
bemoan the declining use of substantive
opening statements and think that par-
ties are too quick to reject them. They
feel that parties are too worried about
difficult issues or emotions expressed in
front of the other side and, as a result,
may miss out on the potential opportuni-
ties to influence the case.
In certain employment cases, an
opening presentation is not appropriate.
For example, in a sexual harassment
case, an employee may not even want
to be in the same room as the alleged
harasser. However, in most cases,
there are arguments for and against a
joint session. It is important to consider
certain factors in making this decision.
First, are pre-mediation statements
going to be exchanged with the other
side, or will they be submitted only to
the mediator? The joint session gives the
parties an opportunity to speak directly
to the other side, and it may often be
the only time during the mediation that
they do so. If the parties choose not to
make opening presentations, it is up
to the mediator to convey their position
to the other side in the initial round of
caucuses. If pre-mediation statements
are exchanged, assuming they are
detailed and contain legal arguments,
a joint opening session is less critical in
this regard. However, where pre-media-
tion statements are not exchanged, the
mediator becomes responsible for all
communications between the parties.
If the litigation is at an advanced stage,
the parties’ legal positions will be
well-known, but the mediator will
still be charged with conveying
mediation positions.
Second, who is attending the mediation?
If the insurance carrier’s representative
is in the room and is not familiar with the
case and/or with the personalities on the
plaintiff’s side, a joint opening session
can help bring that person up to speed.
In addition, it is worth considering who
from the employer is attending the
mediation. Will the person who made
the decision to terminate the plaintiff’s
employment be there? Depending on
the personalities and the dynamics, it
can go either way.
Finally, in cases where damage
calculations are complex, such as in
wage and hour cases, an opening joint
session provides an opportunity for
employees’ counsel to explain the basis
for the calculations to the employer’s
counsel, saving a lot of time in the initial
caucuses. Even when the parties have
exchanged information about damage
calculations in advance of the media-
tion, an opening presentation focusing
on the critical points of their calculation
can be useful.
A more nuanced approach to determin-
ing whether to make opening statements
is recommended. Rather than reflexively
rejecting them, counsel should consider
certain factors in each case before
making their decision. n
Joint Sessions in Employment Cases:
Should Parties Make Opening Statements?
By Robin H. Gise, Esq.
Fall 2015 • employmentmatters@jamsadr.com • jamsadr.com/employment • 800.352.5267 • Page 5
??
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Experienced counsel, understanding
the risks of litigation and the benefits
of resolution, come to the mediation
fully prepared with the goal of
resolving the matter. How could the
mediation fail? The following factors
can often impact the successful
outcome of a mediation and are
particularly critical in employment
mediations, which can be more
emotionally charged than business
and commercial matters. Avoiding
these pitfalls can lead to a success-
ful mediation.
Pre-mediation
Misperceptions
Issues arise when there is a mispercep-
tion as to the parties’ actual positions
coming into the mediation. Prior to the
mediation, most parties have exchanged
demands, and in some cases, there
have been responses to those initial
demands. However, it is not unusual
if there has not been any “formal”
response to the demand, although there
may have been discussions between
counsel. Often counsel come away
with different understandings as to the
positions of the parties. This can impact
the process, particularly as counsel
prepare for the mediation.
It is important that the parties are
candid and clear in their pre-mediation
discussions in order to avoid unneces-
sary misunderstandings at the outset
of the mediation. Having these misper-
ceptions at the start of the process
impacts the credibility of the process,
adds confusion and detracts from
addressing the main issues and
purpose of the mediation.
The Unprepared Client
Regardless of the sophistication level
of the client, he or she needs to be
fully informed not only as to the case,
but also as to the mediation process.
Fully informing the parties about the
process should first come from counsel,
not from the mediator at the session.
That information should include what
will happen during the course of the
Your Client’s Guide to the
Employment Mediation Galaxy
By Hon. Judith M. Ryan (Ret.)
mediation from the caucusing, the ex
parte communications, the issues of
confidentiality and the amount of time
that could be involved (and thus the
patience often required).
Clients, even those with a high-level
of sophistication, should always be
given an overview of mediation if it
is their first time going through the
process. This overview can include
how offers are conveyed and the fact
that offers and responses may at first
have little resemblance to the ultimate
resolution. Additionally, it should be
explained that potential settlement
options may include monetary and
non-monetary components.
The client should also be prepared
for decisions that will be made if a
settlement is reached as to the set-
tlement agreement, disposition of the
settlement funds and any potential tax
considerations. These are matters that
should not be discussed for the first
time at the mediation.

Fall 2015 • employmentmatters@jamsadr.com • jamsadr.com/employment • 800.352.5267 • Page 6
Failure to Manage
Client Expectations
Managing the client’s expectations is
one of the most critical aspects of the
mediation process; the failure to do
so is often a major stumbling block
to a successful mediation. The client
needs to be educated as to what can
be anticipated in the litigation process,
including potential outcomes, costs of
pursuing the case and a realistic risk/
benefit analysis prior to coming to the
mediation. The client should not hear
about the potential downside for the
first time at the mediation.
Rushing the Process
The mediation process should then be
allowed to work—it takes time. Some
parties come to decisions faster than
others. Experienced counsel have
advised their clients to exercise patience
prior to coming to the mediation. The
matter will resolve when all parties are
comfortable with the decisions they
are making; not everyone comes to
that determination at the same time.
Remember, the time involved in the
mediation process is time that is not
involved in the litigation process.

Failure to Use the
Mediator Effectively
The parties have come to the mediation
to seek a resolution through the assis-
tance of a professional mediator, so
use the mediator. They have been
chosen because of prior background
and experience in the subject matter
and success in resolving such cases.
Utilize the mediator to facilitate the
process. Allow them to interact with
the client and give the client the ability
to express their position directly. Use
the mediator as a “partner” in the
process to work with the client and
not as an adversary. Give credence
to the mediator.

Conclusion
Mediating an employment case should
not be like going into an unknown gal-
axy. A failed mediation can be avoided
if the above pitfalls are recognized.
A successful mediation is the
result of preparation. Fully informed
clients with realistic expectations
can participate with counsel in the
mediation process and better achieve
successful resolutions. n
Hon. Judith M. Ryan
(Ret.) is a JAMS
neutral based in
Southern California.
She is known for her
keen ability to quickly
grasp the strengths
and weaknesses of a
case and is highly effective in guiding
parties toward settlement. She can be
reached at jryan@jamsadr.com.

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