ADR Suitability Questionnaire
I. Sources of Disputes and Litigation Management
The purpose of this section is to identify patterns of employment
disputes (if any), the issues they involve, departments in which they tend to
occur, and the level of employee involved.
A. Select a representative period of time and list all employment-related litigation, either
filed, settled or adjudicated within that period. (If your company is small, i.e.,
under 100 employees, the period should be no less than five years. In a
company larger than 1000 employees, patterns, if they exist, may emerge
within 18 months.)
Litigation includes charges filed with EEOC, state or local fair
employment practices agencies, the Department of Labor or other
administrative agency that conducts investigations and imposes penalties
for employment related violations.
Describe the issues:
1. Discrimination. What kind? (E.g., age, sex, sexual harassment,
race, disability, religion, other.)
2. Breach of contract. What kind? (E.g., employment agreement,
handbook.)
3. Tort issues (e.g., fraud, defamation, invasion of privacy,
interference with contractual relations, including negative job
references and non-compete litigation, malicious treatment, and
negligent hiring).
4. Others. (E.g., FMLA, unemployment/workers compensation
discrimination, drug testing matters, whistleblowing, wage and
hour disputes, polygraph testing, immigration, COBRA, ERISA
and post-termination matters.)
B. In each case, can you identify the specific policy or action taken by the
company, upon which the employee's suit was/is based? These include:
1. Structural changes such as downsizing, job restructuring, layoff,
job elimination;
II. Employee discipline for breach of work rules or for ethical misconduct
1. Performance related problems such as conflict with supervisor,
poor job performance, attendance problems; or
2. Employee dissatisfaction with long standing policies. Examples
are wage and overtime policy, safety procedures, leave policies,
reference policies, hiring policies, and drug policies.
A. In each case can you identify steps that might have avoided the problem?
(E.g., afford more notice of company action, improve supervisory
monitoring, implement more effective grievance adjustment mechanisms,
better educate employees so they will be clear about obligations, improve
hiring procedures?)
B. To determine whether there is a pattern to the occurrence of litigation,
answer the following.
1. Is there a particular type of dispute that arises repeatedly?
2. Does litigation arise frequently in a particular department?
3. Are lawsuits generated by a particular supervisor?
4. What is the skill, education and responsibility level of employees
who are most often involved in disputes?
C. Make a list of all disputes that have not resulted in litigation, and ask the
same questions as D above. Do patterns now appear?
III. Methods of Communication
This section identifies the impact of existing systems of communication in
diffusing employment disputes.
A. Is there a system in place for obtaining employee feedback? If so, what
kind?
1. Grievance procedure;
2. Quality control groups;
3. Focus groups;
4. Employee input on job content, scheduling, job description, leave policies;
5. Employee selection of benefits;
6. Performance reviews;
7. Periodic investigations;
8. Informal means such as "open door policy";
9. Company newsletter;
10. Training sessions.
B. How are these procedures communicated?
1. Handbook;
2. Orientation materials for new hires;
3. Independent policy statement;
4. Employee training;
5. General awareness of company's openness
to employee comment and input.
C. Were these feedback mechanisms responsible for resolving any disputes
identified in Section I? Which ones?
D. Have these procedures ever resulted in the company's decision to modify
an HR policy or procedure, work rule, or work method or procedure.
Which ones?
E. Have matters proceeded to litigation despite utilization of the procedures?
Which matters? Why?
F. What company procedures exist for periodic performance review?
1. Are timetables specified for performance achievement?
2. Are written reviews used?
3. Can employees challenge a performance assessment?
4. Are employees' goals discussed?
5. Are employees aware of criteria in advance?
6. Are the procedures systematically followed, or are they frequently
ignored?
7. Are supervisors trained in reviewing performance?
G. Is there a system in place for graduated discipline or other corrective
action for disciplinary breaches or performance problems?
H. Have you instituted any procedural changes over the last two years to
improve communication? Which ones? Have they resulted in a decrease of
disputes? Did they have any other benefit that can be identified?
I. Do you believe generally there is effective dissemination of company
policies? If not, what can be done to improve?
J. Do you have a handbook?
1. Do you believe the handbook has been an effective means of
communication with your employees? How?
2. Do you believe the handbook has been effective in minimizing
employment disputes? How?
3. When was the last time it was revised?
4. Does each employee receive a copy?
IV. Assessing Employee Productivity
This section identifies indications of low employee productivity that may be
associated with employee disputes.
A. How would you rate the impact on company profitability of the following
employee productivity factors?
1. Employee injuries;
2. Absenteeism;
3. Discipline problems;
4. Breaches of HR policy;
5. High turnover;
6. Quality-control problems;
7. Inadequate skills;
8. Employee complaints about supervision;
9. Supervisors can't control departments;
10. Top-heavy supervision;
11. Varying wage or salary levels for similar work.
B. Are these occurrences attributable to any of the following?
1. Inadequate monitoring of employees;
2. Lack of policy consistency;
3. Inadequate dissemination of policy;
4. Poor hiring decisions;
5. Insufficient training or orientation.
C. In what departments, or functional lines, are these problems most heavily
centered?
D. Has the HR department considered or implemented strategies for dealing
with these personnel problems?
E. What company procedures exist to minimize hiring the wrong employee?
1. Background checks;
2. Comprehensive or multiple interviews of candidates;
3. Setting of goals for which both employer and employee are
accountable;
4. Testing.
F. Has the company implemented any productivity measures within the last
two years?
1. Teams;
2. Departmental reorganization;
3. Revision of job descriptions;
4. Employee involvement programs, such as influence over
scheduling of work and production decisions;
5. New methods of employee communication and feedback;
6. Other.
G. If yes, have any of these procedures worked to improve productivity?
H. Would you say, on a department-by-department or company-wide basis,
there is an existing sense among the workforce of cohesiveness and team
orientation?
I. What percentage of employees (company-wide) perform repetitive tasks,
along rigid functional lines or with limited options for advancement?
Which groups?
Send mail to the author, brody law@capital.net.
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