Expert: Timmy Chou - 5/18/2011

Question
I am involved in a labor dispute with my previous employer for wages in the state of New Jersey. This is only a hearing at the NJ Department of Labor, it is not in an actual courtroom,  We were scheduled for a hearing and have already been in front of the arbitrator and they were not able to prove their case so the arbitrator asked for a continuance.  He wanted more testimony on their behalf.  We are going to be rescheduled for another hearing in the near future.  My question is if I were not able to prove my case and they win the hearing,can they counter sue me for impact to their business because of a loss of business productivity due to them bringing employees in as witnesses. Any help will be appreciated.  Thank you.

Answer
Thank you for your question!  

Sorry for the delay as I was traveling this week.

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 can I mediate this with you alone but I can respond to your question from my business consulting experience.

Note that this matter may have legal ramifications and you may wish to consult an attorney.

Typically DOL matters are heard before "administrative" judges and these specialized adjudication venues have their own rules and procedures which differ from the typical civil courts.  You will want to get up to speed on how the process operates in your case.

Typically it is not the case that these matters end up in a civil court, but it is always wise to remember that people often bring suits for all kinds of reasons proper and improper so nothing is completely out of bounds.  However, there is a cost to bringing suit and I would have a hard time believing that the employer would try to sue you, and suffer even more downtime as all the people will have to testify again, not to mention the cost of the lawyers, and THEN even if they got a judgment against you they would still have to find a way to collect it.  

Remember that you are dealing with large organizations and managers 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 their position.  They want to try to make up "so called" business reasons to justify their behavior and you should try to create additional "business reasons" to deal fairly with you.

The company must see that their behavior can be quantified in specific economic harm to you, and 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 settle fairly with you.  Be cool, calm and professional, but be sure that they know you are serious as a heart attack and have every intention of seeking either to be made whole or you will be after them in every way possible.

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