Asked about 1 year ago - Philadelphia, PAFlag
I have a religious discrimination case against my previous employer, part of the federal government. We are past the point of a formal eeo complaint and investigation. I have requested a trial (as opposed to an immediate decision). I just got a letter from the eeo stating that I have a 'settlement conference scheduled. We have already done mediation as part of my informal complaint and my employer insisted they are 100% correct in their actions. Does the settlement conference follow a similar pattern to the mediation? I am trying to figure out what to expect. Do I need to prepare my statements and 'story' again or is it basically going to be settlement discussion? Last question- can my previous employer state that they will only settle on zero dollars for 'settlement'?
Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania, New Jersey or Federal law apply, unless otherwise specified.
That being said, you would be best served to see an attorney. It is impossible for most clients to know what they can ask for in settlement, what they could expect if the matter went to trial (which will dictate what a reasonable settlement demand would be) and what the time and costs would be if they did not settle. A good employment attorney will be able to advise you on those issues. The National Employment Lawyer's Association is a good place to find one near you.
As far as what you need to prepare, you should remember that although this is not a trial, and you do not need to 'prove' your case and that nobody will be found 'innocent' or 'guilty,' the purpose of the settlement conference is to have both sides show the strengths of their case and the weaknesses of the opponents' case. The neutral party in the conference (in this case, an Administrative Law Judge) will attempt to bring both sides together to agree on a settlement. The ALJ will use the strengths of your case to push the other side toward settlement, and vice versa. Therefore, you should be very prepared when going to the settlement conference, in order to present the best case you can.
Your former employer can refuse to pay anything. Although they have to negotiate in 'good faith,' it really means nothing in practice. If they've taken a strong stance so far, do not expect that to change.
/Christopher E. Ezold/
The Ezold Law Firm, P.C.
One Belmont Avenue,
Bala Cynwyd, PA 19004
I am a California attorney and not eligible to give legal advice in your state. My comments are for information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT PROVIDE SIMILAR OR GREATER PROTECTION. If I refer to your state's laws, that only means I did a quick Internet search and found something that appeared relevant. You should not rely on any comment I make regarding your state's law. You MUST check with an attorney licensed in your state.
The federal agency EEO system is a complicated mess. If you don't have an attorney, I urge you very strongly to get one. See below. Actually, it seems you don't have an attorney or your attorney would be answering these questions for you.
The mediation took place before you filed your formal charge. If you are already in the formal EEO process, the settlement conference is before an administrative judge, either the one assigned to your case or another administrative judge. Having represented clients at dozens of these settlement conferences, I can tell you they vary widely. Some administrative judges conduct them like a mediation; some conduct them more like a settlement discussion. The best way to find out is to ask the administrative judge. I suggest you fax a letter to the administrative judge WITH A COPY TO THE AGENCY REPRESENTATIVE and ask what to expect. The administrative judge may send the parties a letter -- probably a form letter -- summarizing the procedure. Or the administrative judge may call you and the agency rep. to talk about it.
If the settlement conference is with an administrative judge other than the one assigned to your case, you can contact that administrative judge without notifying or including the agency.
The agency can take the position it will not pay you anything to settle the case. It has no obligation to agree to pay you a dime. However, it must enter the settlement discussions in good faith, which is a wishy-washy term that is hard to define.
Employment law is complicated and fact specific. You may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.
Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.
I hope you can resolve your situation and wish you the best.
If I were pressed to describe "good faith" participation in mediation, I would say:
you show up, listen to the other party, make sure you understand what they want and why they want it. You then clearly state your position, and why you take that position, courteously answering any questions they may have, and try to assist them in understanding your position, if they have difficulty doing that. You are not required to compromise your position or agree to any proposal. If they accept your proposal, or you accept theirs, you are bound and must follow through.
But for the reasons stated above, I think you need help. If you do not even know what a mediation is, you are a babe in the woods, and there are wolves in the woods.
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