Employment litigators see a broad range of legal disputes, from sexual harassment to discrimination to breach of contract. They valiantly fight for their clients, gain subject matter expertise, and ultimately become trusted advocates in the fight to achieve justice. But even more importantly? From the trenches, they gain invaluable insight into the inner workings of the office, plant, factory, or farm. They see it all—from shoddy workplace policy enforcement to nasty bosses to smoke break brawls. Can those zealous advocates use their unique, birds-eye view of conflict in the workplace to help out before suit is filed? Or will they just be peacemaking themselves out of a job?
Having observed workplace conflict as a litigator and mediator for nearly 20 years, I believe it is possible, and maybe even lucrative, for litigators to advocate for their clients outside the courtroom. As any employment mediator will tell you, most workplace conflict stems from improper risk avoidance techniques. Sure, some recent SCOTUS cases weaken collective bargaining and restrict certain types of lawsuits, but workplace anger nevertheless will continue to boil over until someone addresses the underlying hostility—today’s workers, often for good reason, feel oppressed, ignored, and powerless. Employment litigators empower both workers and employers by providing them a voice—but those litigators need not wait until suit is filed to get involved.
Especially in this age of increasingly meaningful pay gaps between the haves and the have-nots, even trivial workplace strife can spiral out of control if workers lack proper channels to communicate their concerns. Employment litigators know best how to achieve that goal. One angry employee, if left to his devices and deprived of any legitimate means of communication, can infect hundreds of perfectly satisfied workers. Litigators can encourage employers to regain control by investing in workers—whose actual beefs often are unrelated to their ultimate legal claims—and bridging the communication gap between them and management.
Even token measures from the powers-that-be comfort employees who may otherwise harbor discontent. Plus, they empower workers to voice concerns early, productively, and in the appropriate forum to allow management to identify and correct potential sources of legal exposure. Employment litigators can become peacemakers by championing, and even advertising and offering, any of the following risk avoidance programs:
Traditional programs offered through corporate risk management or human resources can yield success under certain circumstances. Such courses include policy reminder seminars, safety training, and grievance discussions. Experienced litigators, in exchange for a stipend, can serve as guest speakers or provide written materials.
Corporate Ombuds Involvement
In companies where the human resource department is closely tied to management, traditional programs may be less effective. Increasingly, corporations are turning to third parties such as a part-time workplace ombuds—an independent conflict resolution expert—to meet periodically with staff, build rapport, and offer weekly office hours to address confidential concerns. A successful ombuds program not only resolves individual disputes but also uncovers for management previously unknown systemic issues. Litigators can point their business clients to a successful ombuds, who may expose the litigator to valuable future networking opportunities.
Businesses often distribute regular newsletters or blogs, reminding workers of their commitment to fairness and safety, their appreciation of their employees, and their policies about reporting grievances. Litigators can encourage these communications and even offer guest articles and legal material.
Sure, mediation has become a required procedural step in the litigation process and often yields success, but what about the often-overlooked option of pre-suit mediation? Employment mediators know that even just the physical catharsis achieved during the opening session of an employment mediation, if done correctly, can heal deep wounds and decrease workplace tension. Plus, the exchange of information during closed sessions invariably exposes both sides to previously-unknown information and important needs of the parties. Workplace mediations offered as a free benefit to disgruntled employees serve the dual tasks of 1) assuring workers that management cares enough to offer the program, and 2) reducing the likelihood of eventual litigation in that matter and others. When the time comes for contentious litigation—and it always will—parties will remember those litigators who helped with creative problem solving during a difficult time.
Zealous advocacy sometimes calls for proactive peacemaking by encouraging a congenial work environment and open dialogue. Employment litigators, already incredibly valuable advocates, can develop true partnerships with clients by encouraging employers to prioritize worker satisfaction, supporting workers to engage in robust internal communication, and championing alternative dispute resolution.