Is Now The Time to Negotiate a More Fair Process?
Make sure your grievance process is designed to work as intended – a fair and efficient method of resolving employment disputes – and not solely to the benefit of the employer.
Since the onset of the pandemic, many agencies have taken the position that they cannot provide compensation increases either because they are suffering from depleted funds or a heightened sense of uncertainty. As a result, many unions whose contracts are expiring are considering or have been asked to “roll over” their contract – i.e., extend their contract with little or no compensation increases. Although each union must evaluate its particular situation individually, now may be a good time to propose non-economic changes.
One non-economic item that should be at the top of every association’s list is the grievance procedure. Although many grievance procedures include language stating that they are designed to informally resolve disputes at the earliest opportunity, they are, in reality, often traps for the unwary designed to reduce liability for the employer and discourage employees from exercising their rights.
This is so because many grievance procedures have very short deadlines, both for the initiation of the grievance and for moving the grievance to subsequent steps. The deadline for the initiation of the grievance procedure is nefarious because it can operate to shrink what would be a four-year statute of limitations for breach of a written contract to a period of mere days. Take, for example, a situation in which the employer fails to provide an agreed-upon item of compensation as set forth in the MOU. Without a grievance procedure, a union or employee would generally have four years to file a breach of contract lawsuit (but only one year to file a claim for damages pursuant to Government Code section 900, et seq.). However, if there is an applicable grievance procedure requiring the initiation of a grievance within ten days of knowledge of the violation, even if the employee ultimately prevails, he or she may not be able to obtain a remedy which goes back more than ten days before the initiation of the grievance. In the absence of that grievance procedure, the employee would likely obtain a remedy going back at least one year prior to the filing of a claim for damages. As a result, the existence of the grievance procedure saves the employer nearly a year’s worth of damages.
Grievance procedures also often have short windows for employees to receive a rejection or denial of the grievance at an early step and to move the grievance to the next level. If the employee misses the deadline, his or her grievance is dead. On the other hand – although grievance procedures often have deadlines for the employers as well – no calamity befalls the employer when these deadlines are missed. Rather, that situation generally just allows the employee to move to the next step. In fact, employees generally must be mindful of their employers’ deadlines, because the employee’s deadline to move to the next step is often triggered by the employer’s failure to meet a deadline.
Finally, and perhaps most importantly, many grievance procedures end with a final decision made by employer-controlled personnel – often the City Manager – who likely had an informal role in rejecting the grievance in the first place. The City Manager is highly unlikely to rule in favor of an employee at the final step of a grievance when doing so would expose the City to liability. Thus, after going through a long, arduous and sometimes expensive grievance procedure, the union or employee may then have to proceed with litigation in Superior Court or another forum.
Based on the substantial problems with grievance procedures, unions may wish to amend their grievance procedures to make them fairer in the following ways:
- Create realistic time deadlines for the initiation of a grievance more in line with the rights an employee would enjoy in the absence of a grievance procedure;
- Establish realistic time deadlines for moving grievances to the next step and remove deadlines which are triggered even if an employer fails to take action;
- Seek binding decisions at the end of a grievance procedure made by a neutral hearing officer or arbitrator.
Finally, unions should consider eliminating grievance procedures altogether. While there are certainly many problems that can be resolved informally with the employer through the grievance process, the same is likely true of letters or informal meetings outside of a grievance process. And while moving straight to litigation may be too costly in many instances depending on the nature of the dispute, as a practical matter, grievances that really matter will likely end up in court anyway. At least you may be able to do so without artificially restrictive deadlines!
About the author
Jacob is the lead partner of the firm’s Labor Litigation Group in southern California, where he oversees the firm’s representation of employee associations and individual clients in various types of civil litigation. He is also a skilled negotiator, having negotiated numerous collective bargaining agreements to improve clients’ wages and working conditions.
