It's time I made a confession: I'm a New Orleans Saints fan—a lifelong member of the Who Dat Nation—living in Atlanta. My status is particularly stressful during our biannual games against the Dirty Birds (Atlanta Falcons), but I expected my status would cause me even more grief when we lost the NFC championship game to the Los Angeles Rams last weekend. I expected that Falcons fans, due to our intense rivalry, would pour salt on my wounds, but everyone has been surprisingly supportive. People everywhere from work to the grocery store have been looking at me with concern, exclaiming "y'all got robbed!" OK, maybe they didn't say "y'all," but that was the gist of it.
As my grief was slowly waning, I read that Saints ticketholders have filed a lawsuit against the National Football League and Commission Roger Goodell. The suit essentially alleges it was patently unfair that a pass interference penalty was not called against Rams defensive back Nickell Robey-Coleman (during a play within the final two minutes of a tied game), which ended with Saints wide receiver Tommylee Lewis missing a critical pass reception. The suit demands the NFL do something about it. Something like sending my Saints to the Superbowl.
Rule 17, Emergencies, Unfair Acts, of the Rules of the NFL provides for "the reversal of a game's result or the rescheduling of a game, either from the beginning or from the point at which the extraordinary act occurred," if appropriate, if the act was extraordinarily unfair. While the appeal is unlikely to result in a do-over for my Saints, it's interesting to know that such a remedy exists. Who knew?
Aside from such a high-level appeal, would the Saints have been entitled to a review of the missed call? Under NFL Rules, several penalties, or missed penalties, are reviewable, but pass interference is currently not one of them. Pass interference falls under the "judgment call" definition, which means that the penalty is not black-and-white, some level of deference is required, and such penalties are non-reviewable. It has been reported that many coaches are proponents of a rule change in this regard, especially due to its effect on high-stakes games, like the NFC Championship Game. But, as the rule stands, there is no review of the missed call.
Like Saints Fans, Employees Have Grievances, Too
So far, I've spent several paragraphs rehashing my emotions about a result in which I am very unsatisfied, but how does this relate to employment law? This is, after all, an employment law blog. Well, employees, like the complainants in the Saints ticketholders' case, often desire to change the result of discipline imposed on them or complain about something they deem unfair, and to do that, they might use a grievance process or policy.
A grievance is defined as "a real or imagined wrong or other cause for complaint or protest." In the employment process, grievances would likely be limited to workplace issues.
Governmental entities often grant or are mandated to provide their employees the right to file grievances. Other times, a collective bargaining agreement will mandate a grievance policy. In fact, the NFL Players' Association's collective bargaining agreement contains a grievance procedure. The grievance could result in a reversal of any disciplinary decisions or just lead to further investigation. However, in most cases, a grievance or disciplinary appeal policy is not mandated by law, and it is the employer's choice to implement such a policy. Grievance policies most often appear in employee handbooks.
Grievance policies in the employment context often involve a hierarchical process of resolving issues, beginning with a grievant's immediate supervisor and providing higher levels of review of the grievant is unsatisfied. The last level of review may involve a neutral third party who is not employed with the company. Some government grievance policies provide for review in a court of law. Most grievance policies have timelines built into them and provide for review of certain subjects. Such guidelines serve to make it more likely that use of the process will resolve issues in a timely and cost-effective manner, while possibly avoiding litigation.
A grievance could also lead to an investigation. Grievants might bring problematic concerns to the attention of management, who were unaware of such issues. And conducting prompt and thorough investigations of complaints and concerns of employees could provide support for a defenses that an employer acted reasonably to prevent improper behavior should the subject of the grievance lead to litigation. (See my July 3, 2018 EntertainHR article "Does Giztoob Get it Right?" regarding the importance of a strong complaint resolution process in the resolution of sexual harassment complaints.).
However, once a grievance policy is implemented, it should be followed to the letter and consistently, since any errors would be construed against the employer. Therefore, it is important to implement a grievance policy that is not only comprehensible to employees but management as well. Further, any timelines should take into account the nature of the business and the availability of the personnel who would be addressing the grievances.
While the ability to grieve the infamous missed pass interference penalty would have, in my opinion, sealed the deal on my Saints' second Superbowl ring, a well-crafted and thoughtfully implemented grievance policy could allow employers to run interference issues that could ripen into litigation.
Originally published in HR Daily Advisor
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