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Employment Law: What Great Potential for Mediation!

I teach employment law. Most of us know that if people ran their business with common sense, we would not need most of the employment laws. But as Abraham Lincoln said, Common sense isn’t as common as we think it is.

In the short term, laws do not change attitudes; that is beliefs, that employers should be allowed to discriminate, should be allowed to pay what the employee is worth even if this is not a living wage. Remember the old saying, People pushed against their will is of the same opinion still. At the same time, in the long run, after implementation for years, the wrong-headed beliefs might be tweaked.

It should be said that employment law are created because

-The public including the government has identified a class of folks who need protection.

-The public including the government have decided that there is a basic employment norm that all should be following.

Missed opportunities:

Dispute resolution skills and processes could be used in all areas of the workplace.

-Effective communication skills could prevent communication mix-up’s.

-Effective listening might allow workers to identify the real root of the issue.

-Effective negotiation skills might solve problems in the early stages even before any official complaint has been filed.

Our present workplace culture seems to only focus on dispute resolution after complaints have been filed. There are many missed opportunities for complaint and litigation prevention.

One international nonprofit only provides mediation if a discrimination allegation has been filed. What happens if an employee want access to mediation? The often reframe the dispute to include discrimination. This doubling of the claims makes doubly difficult to resolve.

Another national entity also opens the mediation door only to discrimination. In actuality, approximately half of the so called discrimination claims are actually poorly behaving bosses or poorly behaving employees.

Introductory Exercise:

Before I begin with actual training I conduct an exercise to discern where the participants generally are when it comes to the United States legal system.

Question One: Do you believe that the US has too many laws?

There is a resounding 100% Yes to this somewhat leading question. There are good reasons for this solid Yes.

-No sunset; instead an accumulation: Laws once passed do not go away. Most laws have no sunset provisions. So, of course, this means that there are still many laws in cities about horses and carriages including cleaning their droppings. Since there is no sunset, laws accumulate.

-Politicians measure success by introducing and passing laws: In our US political system, politicians measure their success by how many bills they introduce and how many laws they pass. Some folks such as Libertarians would have a difference metric of success.

-Laws become The Answer to each problem: There seems to be a belief with many people that no matter what the issue, a newly passed law will solve the situation even if there are presently relevant laws on the book.

Statistics will boost the belief about too many laws. reports that in 2016 there were enacted 850 federal regulations that affect small businesses.

-During 2016, there were over 20,000 laws (local, state and federal) that affect the use and ownership of guns.

-From 200-2007, Congress created 452 new crimes.

-Now, there is a total of 4,450 federal crimes.

-In 1927 there was a single volume of federal laws. By the 1980’s, there were 50 volumes with 23,000 pages.

-During a typical year, Congress passes 124 new laws. (

-During 2017, in the Illinois legislature, 10,000 bills were introduced and 680 new laws were passed.

Question Two: How much confidence do you have in the U.S. Legal System?

Participants rarely vote about 50%. This reflects recent Gallup polls where people say their confidence in the U.S. Supreme Court is 49% and in the US criminal justice system at 23%.

-In 2016, in a Gallup poll, 10% express a great deal of confidence in the U.S. Congress. This, is in contrast to 42% in 1973.

-Lawyers fare at 15%=high degree of confidence.

-Only about 49%of those polled said they have little to no confidence that the justice system can operate without bias. (Mark A. Cohen, Harvard Institute of Politics.)

Question Three: In U.S. creating laws is like creating sausage. It is often a series of compromises.

Participants seem to be overwhelming aware of that in the US compromise is the way to get laws past. Compromising often explains the illogical aspects to laws. So some laws have a threshold of 30 employees and other laws, 50 employees, etc. “All legislation of consequence is a series of compromises, and there are many trades and deals…in order to get important measures through. (James Eli Watson)

Question Four: Laws often emanate from unusual or extreme examples.

Most participants seem to also be aware of this especially with the media highlighting such cases as a spilled hot coffee case or the refusal to bake a cake for a Gay cake.

Of course, one of the most famous cases is the Palsgraf versus Long Island Railroad case. The case revolves around a crowded platform. A guy was holding a package. A Railroad worker tried to help the man and the crowd. The package dropped and exploded since it contained fireworks. It was determined by the court that it would not be reasonable to think that this package contained fireworks.

It is important to note that most U.S. Supreme Court decisions are unanimous or nearly so, but of course, there is no publicity in these cases.

Post Introductory Exercise:

The above introductory exercise provides to all a feel for how participants view the legislative system, the courts and specifically employment laws=not much confidence. Now, we move to specific areas of the law with a wonder as to how MEDIATION AND NEGOTIATION could assist in creating and implementing such laws.

Discrimination cases:

This is a hugely complex issue with so many gray areas. When there are gray areas, this means mediation and negotiation potential.

Larry Ray comment: During the past 4 decades I have mediated hundreds of discrimination cases or at least they arrived through “the discrimination door.” Half of the time these cases actually revolve around poorly behaving employers or employees. Often systems are set up so the only way to get to mediation is by claiming discrimination. This is a sad feature since the discrimination claim often exacerbates a problem and makes it doubly difficult to resolve.

So, in employment discrimination cases there must be “protected categories.” These folks are being treated differently because they fall into these classes such as women, Blacks, Latinos, Gays, Older Americans, Disabled et al. Not all categories of folks are “protected.” Lawyers are not. Bicycle riders are not. Cleaners are not.

For example, in California, domestic violence victims and emergency workers are protected.

Discrimination is so difficult to define even though there is a myriad of laws, regulations and court cases that attempt to do so. Discrimination involves different treatment.

It would be ideal when a situation first becomes apparent to either the employee or the employer that they “nip it in the bud” using communication, negotiation or mediation skills.

Usually clear discrimination cases involved disparate treatment. For example, one employee is required to wear a uniform and another is not AND there are no safety or other reasonable reasons.

At Will Employment:

Most folks believe that this is a very simple concept. If you are not bound by contract including union contracts, you are at will which means that your employer can get rid of you for any reason at any time. At will has a long history dating back to medieval England.

Of course no law is black and white so there is lots of room for negotiation and mediation and so with at will employment.

So the concept of at will employment is mutual. The employee can leave at will as well.

Courts and legislatures began to negotiate exceptions to this concept thinking the employer has the advantage since a job is essential for most Americans. They generally fall into four categories.

-Public policy: What a generalized concept! In general it means that an employer cannot fire an employee for refusing to do something unlawful. Of course, even the term “unlawful” is amorphous. Whistleblowing would also be considered public policy or an employee reporting an illegal act of an employer. Another area would be an employee performing a legal act or obligation such as jury duty or filing a workmen’s compensation claim.

-Law violation: It is clearer that an employer cannot get rid of an employee which would violate laws such as Age Discrimination Act of 1967 or American with Disabilities Act of 1990. Of course, all of these laws have amorphous provisions subject to negotiation and mediation.

-Implied Covenant of Fair Dealing and Good Faith: This is the vague exception and is recognized by only some jurisdictions. So, if an employee has worked at one place for 32 years and is months away from retirement it is implied that they will not be terminated mere months before retirement.

If an employer cites poor performance but has not communicated this, some would see this an unfair and an exception.

This exception captures the assumption that employers are going to treat their employees honestly and fairly. Again, lots of room for negotiation.

-Implied Contract Violation: Many jurisdictions recognize this exception. Employers often put terms in their rules, regulations or handbooks that provide this exception. So the employer in their handbook may use the term “just cause” for termination. An employer handbook may set out a step by step process of discipline which again creates exceptions to totally at will employment assumption.

Ongoing Employment Issues:

At the end of the seminar, we focus on relevant, often ongoing controversies, in which mediation and negotiation could play a major role.

Who is an Independent Contractor?

For years, this was an uncontroversial category in which workers were brought on, often temporarily, to accomplish certain projects or tasks where the present staff did not have the skills or expertise. In most cases and in most jurisdictions, IC’s are defined as those,

-Who can set their own hours.

-Who can set their own schedule.

-Who sets their own rates.

In the past, IC’s were often hired for specific projects for a temporary time frame. Because of the above criteria, IC’s were distinguished from regular employees and thus did not receive any benefits and the employer did not have to pay Social Security, Workmen’s Compensation, Medicaid, and Medicare. But today, the concept of IC has been conflated with employees.

-Downsizing the Reorganization: During the past several decades, businesses and some governmental entities seemingly transformed many existing staff positions into IC positions. Often instead of creating a newly needed staff position, an IC would be created. Many of these IC’s do not seem to fit the definition as described above.

-California is challenging Uber and Lyft IC’s: A huge controversy now is this challenge by the California state legislature as they passed a new labor law: AB5. It attempted to distinguish between the characteristic of an IC and an employee. The underlying goal was to get at Uber and Lyft drivers who are now listed as IC but the legislature believes they should be counted as employees. These tightened definitions may have had the unintentional ramifications of affecting free lance journalist and language interpreters.

Uber and Lyft appealed to the courts and the lower court has ruled in favor of AB5. Uber and Lyft threatened to pull out of California, but the upper court stayed the decision during the appeal.

This is another area that seems to require mediation and negotiation rather than court rulings and legislation. Maybe the affect parties could get together and create new categories to get all parties out of the disabling dichotomy of “either/or.”


When most folks thinks of employment laws, they think of courts and legislatures. There are so many missed opportunities for negotiation, mediation and facilitated discussions. If these processes were used more, there might be less controversy and more accommodation for special cases. Most of these cases could be resolved by common sense decision making before a claim is filed.

NOTE: Your comments are welcome and solicited.

Also, I will be taking a break for one month from blog entries while preparing for virtual teaching my Negotiation course at The George Washington University School of Law.

Resource: SENATUS dispute resolution website:


What It Is: Reap the immense rewards of having a professional and experienced neutral third party bring a fresh approach to resolving office disputes and conflicts.

  • Value Provided: Workplace disputes are common and often expensive. Not just in the traditional financial sense, but in the opportunity cost of what resolving the dispute distracts from. Company time, resources, and efforts should be spent in furtherance of the businesses' objectives and purpose, not battling internal strife. SENATUS understands every business is unique, and that is why we offer tailor made and customizable mediation services designed to meet your needs and surpass your expectations. Be practical, be prudent, and trust SENATUS to resolve your dispute so that you can get back to work. 


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