AboutTimmy Chou Expertise I am a experienced Mediator and a partner in a management consulting firm. As a mediator I work as a third-party neutral and specialize in partnership/shareholder disputes, management/labor issues, company culture difficulties, and family-owned business problems. I can help describe why alternative dispute resolution may be a good choice for you. As an experienced management consultant I may be able to offer creative ideas to help resolve your organizational and business problems and disputes. "If you say conflict, I say opportunity".
Question My employer is demanding that I repay them $13,000 of incentive pay from the
last 5 years that was discovered in a recent audit. Because I work for a public
entity, they are claiming these are public funds and I have no choice. My
employer has admitted the error was theirs and has demanded $110.00 per pay
period for repayment.
Answer Thank you for your question!
As I always note to questioners, mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.
I am not a lawyer and cannot give you legal advice, nor mediate this with you alone but I can respond to your question from my business consulting experience.
Note that this may have legal factors and you may wish to consult a labor attorney.
I often tell people that it may be useful to consider that right and wrong are not always the most useful places to begin in dealing with these sorts of problems. For most large organizations there is only expedient and inexpedient. Also, there is a cost to exacting justice and the costs can be quite high. Remember that your person-hood and your work are not even remotely related and that the most successful people at work are often the least successful with others since they have often become successful on the bodies of those they have slain.
You are dealing with authority figures, managers or owners who are only interested in the path of least resistance in terms of how they manage the business. I'm guessing they could care less about you so don't put too much investment in your position. You are being attacked for business reasons and now you must create a business reason to deal fairly with you.
Please begin by documenting a very careful chronology of events as they have occurred. Names, dates and locations. Put things in writing at this point as you have done. Be sure to document as much of your excellent work history as well, including incidents of praise or recognition. Be sure to write down all you can remember about the nature of how you were paid and what anyone said or other promises to you. Essential is any example of persons in your situation who were dealt with differently, as this sets a precedent. You cannot be treated differently than other workers nor can your contract be violated. Also important is the nature of the calculation of your incentive pay. If you do not have a way to INDEPENDENTLY confirm that your incentive pay is correct, than ANY incentive pay you receive could potentially be paid in error and you would never have any way to be sure. This is patently unfair, and is the same as getting no pay. You would be entitled to have the employer sign a release certifying that the pay is correct and that they hold you harmless for errors.
If are employed under a Union CBA or other set of HR rules and procedures, you must get copies of these documents to determine if procedures were followed in terms of rules on this issue. You must note any company or supervisor violations of these rules.
Utilize Union resources and advocates to assist you. At this point you must remain calm and poised. Be prepared with evidence and facts. Use any other advocacy resources you may have. Be prepared to write letters and file complaints with the state and federal labor offices.
Your company or municipality must see that you are not going away, you are going to use every lever you have, you are going to tell everyone and proclaim their practices far and wide, and that it will cost a lot more to deal with all the problems you will cause them for their practices and then they will make a business decision and deal fairly with you. Be professional and show them that it is more risky to screw with you under questionable circumstances than to merely leave you alone.
These are some ideas. Feel free to follow up with additional questions.
For your information, the pros and cons of the types of dispute resolution methods follows.
GOOD LUCK!
Arbitration, Mediation, and Litigation
Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system
Benefits of Arbitration:
Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships
Negatives of Arbitration
It's a compromise, no 100% winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process
Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.
Benefits of Mediation:
Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions
Negatives of Mediation
may not reach a binding decision
unskilled mediator
Litigation: using the judicial system to resolve disputes
Benefits of litigation:
a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final
Negatives of Litigation:
waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record
