Regulatory Overview: Employment Law Programs
The Fact Finding Report, in Chapter IV (pp. 105-137) presents an account of the rapid growth of federal and state employment legislation, creating individual rights for workers. In some cases, employment law has also created forms of collective rights at the workplace, such as rights to a safe and healthy workplace or to freedom from an atmosphere of sexual harassment. These rights relate to the situation confronting a group of workers rather than an individual worker.
At the same time, many state courts have transformed their traditional hands-off posture towards employment at will into a measure of legal protection against wrongful dismissal.
Enforcement of these employment laws against non-complying employers requires litigation in federal or state courts or administrative proceedings before regulatory agencies. Employment law cases filed in the federal district courts in the two decades 1971-1991 increased more than four-old, and there was also a rapid expansion of suits in the state courts seeking redress for wrongful dismissal or discrimination.
There has seldom, if ever, been a systematic overview of this statutory structure and the resulting detailed regulations and court interpretations that flow from employment law. Congress and its committees have considered the legislation piecemeal. Administrative agencies generally consider regulatory, interpretive and procedural issues separately, even in the case of similar issues that arise in different agencies of the same Department. Courts review individual cases. Labor organizations tend to focus on those regulations that affect their members in separate workplaces. Employers in different sectors, of different sizes, and with different problems are affected in quite different ways, although employers and their organizations probably have the broadest overview. The whole field has become far too large and complex for independent researchers who tend to specialize in single issues or agencies.<Footnote:United States General Accounting Office, Workplace Regulation, Information on Selected Employer and Union Experiences, Vol. I and II, Washington, D.C., June, 1994. The study was requested by the House Committee on Education and Labor, both the majority and minority members.>2. Significant Problems with the Present System
The Commission heard a variety of complaints about the present system of enforcement of employment law through litigation in federal or state courts or administrative proceedings before regulatory agencies. Among these problems are the following:
- Despite the fact that a number of recent statutes have encouraged
alternative methods of dispute resolution in federal employment
statutes, both administrative and judicial backlogs have sharply risen.<Footnote:See,
for example, the Age Discrimination in Employment Act of 1967; the
Americans with Disabilities Act of 1990; the Administrative Dispute
Resolution Act of 1990; the Judicial Improvement Act of 1990, Title I;
the Civil Rights Reform Act of 1991; and the Family and Medical Leave
Act of 1993.> The EEOC, for instance, reports an inventory of nearly
97,000 complaints in FY 1994 pending charges. This figure represents a
backlog of 18.8 months, a sharp increase from the prior year's 12.2
months.<Footnote:Data supplied to the Commission by the Equal
Employment Opportunity Commission, from the Office of Communication and
Legislative Affairs, from EEOC's Charges Data System's (CDS) Automated
District Office Report, November 1994.> Such large backlogs and
delays frustrate the purposes of the legislation for all parties.
- The access to protections for low wage employees is particularly
constrained by the high costs of litigation. Employment litigation tends
to be much more utilized by managerial and other higher paid employees
as compared to low-wage employees, creating significant inequities.
- In highly competitive sectors, particularly those with high labor
costs, lack of compliance with employment standards prescribed by law
results in uneven treatment of workers and unfair competitive advantages
for violators who undermine the socially determined standards.<Footnote:The
minimum wage and overtime pay provisions of the FLSA enacted in the
1930s were in large measure designed to level the playing field on which
manufacturers in different parts of the country could compete fairly and
equitably. Inadequate enforcement and uneven compliance had undermined
this basic social and economic purpose of the legislation. See, U.S.
General Accounting Office, Garment Industry, Efforts to Address the
Prevalence and Conditions of Sweatshops, November 1994.>
- The compliance officer and investigator staff of the Department of
Labor's regulatory agencies have declined, as measured by full-time
equivalents (FTEs), over the past 15 years, at the same time as
statutory requirements have expanded and the cases have increased.
Projections for future enforcement staff are likely to show further
declines as agencies implement their "streamlining" plans,
which call for a reduction of 12 percent in FTE levels for FY 1999.
Similarly, the EEOC, since 1990, has seen its investigators decline in the face of a substantial increase in caseloads. As a result the average caseload per EEOC investigator has increased from 51.3 in FY 1990 to 122.0 in FY 1994.<Footnote:See footnote 3 above.>
The attached table reports changes in the investigative staffs for various Department of Labor agencies, the Equal Employment Opportunity Commission, and the National Labor Relations Board for the years 1980, 1990 and 1994.
- A number of employer-based dispute resolution systems are being established by some employers in nonunion workplaces ~ often as a condition of employment ~ to respond to the expansion in litigation and costs. Many of these unilaterally established systems do not meet the test of fairness in one or more respects. It is essential at this stage in the development of such workplace-based dispute resolution systems to define structures that are inherently fair and thus can gain wide acceptance among employees and the general public.(see Section IV above.)
Neither the existing administrative and litigation routes nor the early ventures into private workplace-based dispute systems seem to provide what is really needed. To be effective, a system for resolving disputes about labor standards must settle claims fairly, close to the workplace, at an early stage, in a manner consistent with law and public policy, and with direct involvement of the disputing parties rather than th rough litigation much later with legal representation, and with higher transaction costs. In particular, disputing parties need to achieve early and direct settlement if they are to continue to work together productively. Absent an effective dispute resolution system, litigation tends to lead to the departure of the employee, regardless of the legal verdict.3. DOL Agency Case Management and Adjudication Procedures
The Department of Labor is responsible for administering approximately 180 statutes. These statutes have been enacted over many years, beginning in the 1930s with the Davis-Bacon (DBA), Walsh-Healey (PCA), and Fair Labor Standards Acts (FLSA). Over the years, new statutory responsibilities were added, including the Service Contract Act (SCA), the Mine Safety and Health Act (MSHA), the Occupational Safety and Health Act (OSHA), the Employee Retirement Income Security Act (ERISA) and the Family and Medical Leave Act (FMLA), to name some of the major laws.
With enactment of these statutes, Congress typically mandated different enforcement and penalty structures, thus requiring the Department to establish different case handling and adjudication procedures to administer different statutes. Currently, there are approximately 20 major adjudication procedures and a considerable number of minor procedures in operation at the Department.
The procedures for OSHA are illustrative of the administration of a major labor statute. (Unlike the Wage and Hour Act, however, individual employees are not authorized to institute court cases under OSHA.) In FY 1993, OSHA initiated 39,723 inspections and investigations. These were either programmed (selected in advance using a system targeting) or unprogrammed (due to imminent danger, fatality, catastrophe, referrals of a follow-up inspection).<Footnote:An employer can refuse the OSHA compliance officer entry. If refused entry, OSHA must get an inspection warrant through the U.S. District Court.> As a result of these inspections, which took an average of 48 days, OSHA issued 29,189 citations.
Upon receipt of the citation, the employer may request an informal conference with the Area Director within 15 days of receipt, and then enter into an "informal settlement agreement." In FY 1993, OSHA entered into 15, 697 informal settlements with employers. Alternatively, the employer may contest the citation within 15 working days by filing a "Notice of Contest." In FY 1993, 2,974 such Notices were filed.
Following the Notice of Contest, any subsequent settlement agreement that OSHA enters into with the employer is a "Formal Settlement Agreement." Such agreements may be negotiated at any point following the Notice of Contest and may even be concluded during the litigation process.<Footnote:OSHA (and other DOL agencies) at this point in the process may also enter into a "Corporate-Wide Settlement Agreement" with an employer, which would include in the settlement worksites other than the one actually inspected.> Typically, between 80 to 85 percent of contested cases are resolved by formal settlement agreements.
If the parties fail to resolve the case through a Formal Settlement Agreement, the case proceeds to an Administrative Law Judge (ALJ) for Hearing. The Notice of Contest is also transmitted to the Occupational Safety and Health Review Commission (OSHRC), which awaits the outcome of the ALJ hearing. In FY 1993, 191 cases proceeded to the ALJ hearing stage. Following the hearing before the ALJ, which takes an average of 12 months from assignment to completion, the Judge will issue a decision and file it with the Commission.
Once the ALJ decision has been filed with the Commission there is a 30-day period during which any aggrieved party may request a review of the Judge's decision by the Review Commission. During FY 1993, 77 cases were directed for review, taking an average of 15.5 months to complete.
Following a decision by the Review Commission, parties may appeal to the U.S. Court of Appeals within 60 days. There were 31 appeals requested in FY 1993, with judicial review taking an average of nine months. An aggrieved party may seek further review by the U.S. Supreme Court within 90 days after the entry of mandate by the lower court.
This OSHA administrative and adjudication process provides one illustration of the procedures used by DOL in the administration of labor statutes. There are, however, a number of other major statutes administered by the Department, most with their own processes for dispute resolution. For example, the Employment Standards Administration (ESA) lists different procedures for each of its 12 "significant areas" in which the Wage and Hour Division has labor standards enforcement responsibility. These are: (1) FLSA minimum wage and overtime; (2) FLSA child labor; (3) Wage and debarment provisions of Davis Bacon and Related Acts (4) Wage and debarment provisions of SCA and Walsh-Healey; (5) Family and Medical Leave Act; (6) Migrant and Seasonal Agricultural Worker Protection Act (7) Immigration Reform and Control Act (IRCA) H-1A (alien registered nurses); (8) IRCA-H-1B (professionals and fashion models "of particular merit"); (9) IRCA H-2A (temporary foreign agricultural workers); (10) IRCA D-1 (alien crew members performing longshore work in U.S. ports); (11) IRCA F-1 (foreign students working off-campus); and (12) seven environmental whistle blower protection statutes.
In addition to OSHA and ESA, there are three other major DOL regulatory agencies that have administrative procedures unique to their statutes:
(a) The Mine Safety and Health Administration (MSHA) has procedures that, in many ways, are similar to those of OSHA, including a review commission that hears appeals from ALJ decisions. MSHA's procedures, however, have many distinctive features and handle a much higher caseload of approximately 160,000 citations and 16,000 contested actions annually.
(b) The Pension and Welfare Benefits Administration (PWBA ) which administers the Employee Retirement Income Security Act, conducted approximately 3500 investigations in FY 1994, leading to roughly 650 cases involving violations. Of this number, 128 were referred for litigation. It is noteworthy that PWBA cases tend to be larger, more complex, and more costly to litigate than cases from other DOL agencies.
(c) The Office of Federal Contract Compliance, which administers anti-discrimination cases arising from Executive Order 11246, Section 503 of the Rehabilitation Act, and the Veterans' Reemployment Rights Act, also has its own sets of administrative and adjudicatory procedures.
The number and complexity of statutes, regulations and procedures administered by the Department is striking. These diverse administrative procedures may themselves be a contributing factor to the complexity of workplace dispute resolution.4. Recommendations for Reducing and Resolving Regulatory Disputes in the Department of Labor Programs
The enormity of the regulatory task and the limited resources available to the Department raise a fundamental question. Either these agencies need to be provided additional funding to meet the standards and methods of compliance prescribed when the statutes were enacted, or the scope of those expectations and the reach of the regulations be reduced, as well as new methods of regulation andcompliance be developed. Until these basic choices of national policy are more generally determined, the following are areas in which the Commission makes recommendations as to directions that can be implemented in the near term.
- Expand the Use of Negotiated Rulemaking
A first step in avoiding litigation is to develop better regulations. Negotiated rulemaking (or "reg-neg") is a process that brings together those who would be significantly affected by a rule, including the Government, to reach consensus on some or all of its provisions before the rule is published as a proposal for public comment. The process is voluntary, and the participants establish their own rules of procedure. An impartial mediator is used to facilitate intensive discussion among the participants, whose committee hearings are open to the public. Agreements that emerge from this process tend to be more technically accurate, clear and specific, and less likely to be challenged in litigation than are rules produced without such interaction. Reg-neg offers DOL an opportunity to avoid conflicts and disputes in the labor standards area long before they arise as compliance problems.
Reg-neg requires certain up front costs (for travel, mediation, etc.) and may be perceived as a slower process than traditional notice and comment. The end results, however, can improve the effectiveness of the rulemaking process. In addition to saving time and money that might otherwise be spent in litigation, regulations developed through the active participation of all interested parties are generally easier to administer and enforce. The use of reg-neg in the development of regulations, or in their review and revision, can make a significant contribution to reducing litigation.
Through the Negotiated Rulemaking Act of 1990 (Public Law 101-648) Congress has fully authorized and endorsed this process. Despite the encouragement of this statute to reduce recourse to the administrative agencies and the courts, these procedures have been used rarely with respect to employment law. (Fact Finding Report pp. 124-125.)
The Department of Labor reports that since the early development of these procedures in 1975-1976, there have been only two attempts at negotiated rulemaking and a third is now in process. These three efforts all concern OSHA standards.<Footnote:See letter of October 31, 1994 from Secretary Reich to the Administrative Conference of the United States, Attachment 7.> The first of these efforts in 1983 to 1984 regarding the benzene standard was not successful. The second, on MDA (Methylenedianiline), began in 1985 and resulted in a published rule in 1992. This rule is one of the few OSHA rules not to be seriously challenged in the courts: in fact, the industry began to comply voluntarily years before the final standard was published. In December 1992, OSHA announced a negotiated rulemaking process concerning safety requirements for the erection of steel structures in construction. That reg-neg process is currently underway.<Footnote:The Department should consider whether the current organizational structure for reg-neg is the most efficient. Currently, the Assistant Secretary for Policy and Budget has the lead on the use of mediation and other forms of alternative dispute resolution (ADR), while the Solicitor of Labor has the lead on negotiated rulemaking. ADR and reg-neg are closely related programs that seek to avoid and solve disputes on an informal basis, without resorting to litigation.>
As the Fact Finding Report (pp. 124-125) noted, greater use of negotiated rulemaking will require different attitudes and skills from both interested parties and the agency staff than the traditional adversarial processes that tend to end in the courts, with delays and far greater expense to the government, the regulated community and other interested parties
There have been sections of employment law that have been hotly contested for years that would benefit even now from negotiated rulemaking. For example, the unsuccessful efforts of the Wage and Hour Division since the 1970s to update its regulations governing the minimum wage and overtime pay exemption for executive, administrative and professional staff (29 CFR Part 541) ~ in particular, changes to the salary "docking" rule ~ have resulted in the The Commission is pleased to learn from the October 31, 1994 letter of Secretary Reich to the Administrative Conference of the United States that the Department's policy is that "Negotiated rulemaking shall be actively considered for use by all of the Department's agencies." This policy needs to be implemented and reinforced even within existing budgets. To do so, the Department first needs to establish negotiated rulemaking as the standard process for drafting regulations that are significant, controversial and complex, and then implement internal regulatory procedures that institutionalize this approach.<Footnote: Substantial support for this approach is found in Recommendation REG03 "Encouraging Consensus-Based Rulemaking" of the National Performance Review report, pp. 29-33.>current state of conflict and confusion among both private employers and municipal officials. This issue was specifically referred to on a number of occasions in testimony and presentations to the Commission. It has also arisen in the Task Force on Excellence in State and Local Government. The problems are clearly appropriate for prompt resort to forms of negotiated rulemaking.<Footnote:See, 1994 Regulatory Plan for the Department of Labor, Federal Register, November 14, 1994. It is estimated that 23 million workers are within the scope of these regulations.> The Commission recommends that the Secretary consider application of reg-neg to this long-standing and critical regulatory issue.
The Department should also work with the Administrative Conference of the United States in developing appropriate changes to the Negotiated Rulemaking Act to make it easier for regulatory agencies to use reg-neg. The current law sunsets in 1996, and any legislative amendments in a reauthorization could have a significant impact on the ability of DOL and the other regulatory agencies to make expanded use of this technique.<Footnote: For example, the current law requires that all reg-neg committees be chartered under the Federal Advisory Committee Act (FACA). This provision creates significant and time-consuming administrative tasks for agencies that choose to use reg- neg. The statutes should be amended to eliminate this requirements, while retaining the important public safeguards that are intended by application of FACA. Similarly, changes are needed to streamline the lengthy task for agencies of procuring the services of facilitators.>
- Improve Information and Compliance Assistance
A second major step to avoiding labor standards disputes is to insure that employers and employees are fully informed of what is required under existing regulations and what constitutes acceptable compliance. The GAO, in its Report on Workplace Regulation, found that even the larger employers they surveyed were not confident that they knew all of the rules that applied to their business operations. Likewise, union officials noted their own lack of knowledge about some regulatory areas and indicated that all too often workers were unaware of their rights.<Footnote:See GAO Report on Workplace Regulation June 1994, Vol. 1, p. 57.>
The Department needs to provide clearer guidance as to what is required and how one might best comply. Such guidance is particularly important since so many business establishments are small or medium sized (employing fewer than 250 employees) with limited resources to follow the complexities of federal regulations. The Commission believes that a major step that DOL can take to promote compliance and reduce regulatory disputes is to provide the business and labor communities, as well as the general public, with clear and comprehensive information on regulatory requirements.
The Commission specifically recommends that the Department establish electronic regulatory information and compliance assistance systems. Such systems would provide interested parties with greatly improved access to information on all applicable statutes, regulations, case law, or opinion letters. The technology now exists to make such information "user friendly; and even to tailor such information to the needs of individual users.<Footnote: The rapid growth in technology with respect to "expert systems" illustrates this point. Such systems are now available in such complex areas as tax preparation. Indeed, OSHA has developed an "expert system" in conjunction with its Cadmium Standard, which includes a number of complex requirements.> The Commission recognizes that some modest groundwork has begun. It applauds such efforts as OSHA's Computerized Information System (OCIS). It also notes that the Department is already operating a public information "bulletin board" that provides some regulatory compliance assistance information ~ such as the text of MSHA's regulations and its Program Policy Manual. What is required, however, is a comprehensive system that provides complete information on the Department's most generally applicable regulatory requirements, follow on interpretations, and the availability of compliance assistance materials.
- Promote Self-Regulation
Further, the Department needs to focus its attention on assisting the development of processes that provide workplace-based dispute resolution programs that are consistent with law and public policy, inexpensive, effective and fair to all parties. In the 1960s and 1970s, the Department's Wage and Hour Division operated a voluntary self-audit program named "Compliance Utilizing Education" or the "CUE" program. Approximately 100 large firms participated in this program under which DOL conducted training seminars for personnel officials of the company who then audited their firm's compliance with wage and hour regulations.
Employers participated in the CUE program because they sought to avoid unintentional systemic violations that might create liabilities for the firm. Employees were offered an informal workplace-based forum for resolving complaints, while retaining the option of raising their complaint directly to Wage and Hour on a confidential basis. CUE firms generally were not scheduled for investigation absent employee complaints.<Footnote: Some labor standards do not lend themselves to employer-employee informal settlements because the legal standard or public policy may not fit the interests of either party. For example, if a 17-year old is employed illegally as a driver delivering pizza, neither the employer nor employee may have an interest in seeing the law enforced. These situations are limited to a relatively small number of DOL regulations..>
Despite its success, the CUE program was terminated because of the perception that the Wage and Hour Division was abandoning its enforcement obligations. The underlying principle of the program was that employers and employees should directly resolve wage and hour regulatory issues among themselves, with the Department providing employees a higher level of appeals.
The Commission would endorse efforts by the Department to assist employers, workers, and unions with training and technical assistance that will allow them to establish workplace-based systems to resolve regulatory disputes. The Commission also believes that the Department should remain as an avenue of appeal for workplace disputes that leave problems unsolved. The clear benefit of such a system is that it will resolve more regulatory disputes in the workplace itself, while still providing the employee with recourse to a neutral agency where satisfactory resolution of the problem on the job is not forthcoming. To the degree direct settlements are reached, the Department benefits by increasing compliance without using scarce enforcement resources.
- Expand the Use of ADR
Following enactment of the ADR Act in November 1990, the Department of Labor took a number of small but significant steps to implement informal processes of resolving disputes. For example, the Office of Administrative Law Judges issued regulations that established a voluntary "settlement judge" process for cases referred to ALJs. The Employment and Training Administration started a pilot project using mediation to resolve grant and contract debt collection cases. The Office of Civil Rights initiated an ADR pilot test for EEO complaints by DOL employees.
Most importantly, in 1992 DOL experimented with the use of in-house mediators in cases involving OSHA and Wage-Hour violations in the Philadelphia Region.<Footnote: The Philadelphia ADR pilot test is documented in Report to the Secretary of Labor on the Philadelphia ADR Pilot Project, (October 1992) and Marilynn L. Schuyler, A Cost Analysis of the Department of Labor's Philadelphia ADR Pilot Project, (August 1993). It is also cited in the National Performance Review as a significant accomplishment and recommended expansion of the process to all DOL regions.> In this pilot, 27 cases referred to litigation were selected for mediation. Of these cases, 22 (81% ) were settled, most at a single mediation session. Some of the cases were very complex and would have cost DOL and the outside party substantial time and resources had they been brought to trial. It is noteworthy that all the parties to these settlements expressed satisfaction with the outcomes.
The Commission applauds the work that the Department has done to date, but strongly urges that it substantially expand these efforts. Specifically, the Department should take immediate steps to expand the 1992 Philadelphia project to the remaining nine regions. The mix of cases should also be enlarged to include a wider range of litigation, especially ERISA, MSHA, LMRDA and OFFCP cases.
The Department should also explore the use of different forms of ADR, including mini trials, early neutral evaluation, and arbitration to determine which processes are most effective for different kinds of cases. The Commission recommends that the Department take a more systematic approach to ADR implementation. To date, the efforts have been relatively ad hoc, and experimentation has had to rely on the support and knowledge of a few individuals. Just in the case of negotiated rulemaking, the techniques used in ADR are substantive, and a cadre with expertise needs to be developed, maintained and promoted for all the regulatory agencies in the Department.
The Department should work closely with the Administrative Conference of the United States (ACUS) in developing the necessary changes to the ADR Act, which sunsets in October of 1995. As an active participant in this government-wide effort to improve the ADR Act, the Department can both provide leadership and potentially reap the benefits of an improved statutory framework to allow for the use of a wider range of ADR techniques.
- Improve the Training of DOL Employees in Dispute Resolution
As noted earlier, the vast majority of cases that DOL initiates as a result of an investigation that produces a citation are resolved without litigation. A significant number of cases are resolved directly when the employer does not contest the citation or fine. Of those contested, agency procedures typically seek to resolve the cases without litigation. Attempts to resolve a case are typically made at the agency level and subsequently by the Solicitor of Labor after the case has been referred for legal action. The Commission applauds the efforts by agencies and SOL to achieve voluntary compliance or negotiated settlements without litigation.
A few years ago, the Congress significantly increased the penalties that OSHA, MSHA and ESA could assess. As these agencies began assessing higher fines, the rate at which firms contest these assessments has risen. For example, for more than a decade mine operators contested approximately three percent of their citations. Beginning in 1989, the contest rate rose to its current level of ten percent.
Recently, MSHA and SOL instituted the Alternative Case Resolution Initiative (ACRI) to help resolve disputes in routine cases, both before and after contests are filed, without formally referring these cases for legal action. Eighteen representatives have been provided with special training ~ including administrative law and negotiating skills ~ by the Federal Mediation and Conciliation Service (FMCS). Eventually, these representatives are expected to handle approximately 20 percent of the contested MSHA cases.
The Commission believes that DOL employees who are charged with case resolution should be provided formal training in mediation and negotiating skills. While some individuals have acquired such skills on their own, or by being mentored by someone already skilled in such techniques, few actually have had training in these areas. The Department would be well served by ensuring that such employees receive training, because this would lead to more timely resolution of cases and reduced litigation. The Commission recommends that DOL explore appropriate training plans.
- Coordinations of DOL Procedures
The various employment statutes administered by the Department were enacted and amended in piecemeal fashion over the past 60 years. For example, penalty structures established at different times have not been reviewed to determine whether they are equitable for comparable violations of different laws.<Footnote: See particularly the GAO Report Workplace Regulation, Vol. I, pp. 41-45> More importantly, the administration of these statutes has resulted in the growth (most often by statute) of complex, slow, and expensive adjudicatory structures. No comprehensive analysis has been done to determine the effects of amendments to one labor standard on the enactment or amendments to another.
For example, the penalty structures of OSHA and MSHA have developed quite differently, notwithstanding the similarities of many workplace safety issues. The criteria for debarment under the Service Contract Act differ significantly from those under the Davis-Bacon Act, notwithstanding strong similarities in the objectives of these government contract labor statutes. Some of these differences may be based on public policy considerations, but many are the result of historical accident. Whatever the reasons, such differing legal structures appear to add complexity to their administration and contribute to disputes.
Similarly, the adjudication process of the Department is in need of review, streamlining and greater standardization. The Department of Labor is relatively unique in that it litigates the majority of its own civil cases, instead of relying on the Department of Justice to handle such litigation. Again, due to the variety of statutory constructs, cases are adjudicated in a variety of different forums, including federal district courts, the Office of the Administrative Law Judges, the OSHA and MSHA Review Commissions, the Wage Appeals Board, and others. As noted above, the processes for litigating disputes are very different, depending on the particular statute. Some processes appear unduly lengthy and complex, given the amount and nature of the penalty. The use of such different forums and procedures is cumbersome for employers, employees, and the Department, contributing to disputes rooted in the administration of the law rather than the merits of a case.
From its inception in 1964, the EEOC has engaged in alternative dispute resolution. In the beginning, the EEOC had the authority only to conciliate all investigated charges on which it found cause to believe discrimination had occurred. Even after Congress, in 1972, conferred litigation authority on the EEOC, the EEOC was required to attempt conciliation of all charges on which cause had been found as a condition precedent to litigation. To the extent ADR is defined as a mechanism to resolve disputes short of litigation, the EEOC, in engaging in conciliation, has performed its law enforcement mission by utilizing, in part, ADR.
Formal conciliation under the Commission's statutory procedure occurs after a charge has been investigated and a cause determination issued. The Commission recently decided to experiment with pre-investigation ADR when it embarked upon a one-year pilot project at four of its district offices: Philadelphia, Washington, New Orleans and Houston. This ADR program, which was developed and conducted by the Center for Dispute Settlement and Commission personnel, involved voluntary mediation of certain subject matter charges.
The pilot was completed in the Spring of 1994, and the Center for Dispute Settlement issued its evaluation of the program on December 1, 1994. In the pilot project, mediation was offered to 920 charging parties, of whom 87 percent accepted the offer. Thirty-nine (39) percent of respondent employers agreed to participate. The four district offices completed mediation of 267 charges; settlements were reached in 139 of the cases (52 percent). Smaller employers (15-100 employees) reached agreement in 60 percent of the cases, while large employers (500+ employees) settled 38 percent of their cases.. The average time for completion of the mediation process was 67 days. This compares with 247 days under the standard investigatory process.
A comparison of the ADR pilot project settlement with 251 settlements reached by the Commission under its regular charge resolution techniques revealed no "major differences" between the two, although monetory benefits tended to be slightly higher under the agency's standard negotiated settlement process.
In confidential exit evaluations, 92 percent of the parties rated the mediation experience as "very fair" or "fair". Eighty percent stated they would try mediation again if the need arose. This high degree of user satisfaction existed even when settlement was not reached.
In December 1994, Chairman Gilbert F. Casellas announced the formation of an Alternative Dispute Resolution Task Force, co-chaired by Commissioners R. Gaull Silberman and Paul Steven Miller, to recommend to the Commission appropriate forms of ADR for Commission use. The work of the Task Force will be guided by two overreaching principles: one, that ASDR is a core element of the agency's mission to enforce the civil rights laws of the United States; and two, that ADR will not, in and of itself, solve the problem of the mounting number of cases with which the agency must deal. Rather, ADR should be viewed as an integral part of the Commission's case management system.
The Task Force recognizes that no one approach will suffice. The final recommendation will take into account the need for flexibility. The Task Force anticipates developing a list of EEOC-sanctioned projects and allowing the local offices to choose those programs most appropriate to its needs and caseload.
The Task Force plans to deliver its report to the Chairman of the EEOC during the Spring of 1995.6. Long-term Codification of Employment Law
Finally, there is a long-term need to review, codify and consolidate employment law and its administration. This is a task beyond the assignment and capacity of the present Commission. The task needs to include experts drawn from business, labor organizations, administrative agencies, academic experts and the relevant committees of the Congress. For the same purposes, the relationship of federal statutes and regulations to those of the states needs to be considered