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Deborah Burford: Good afternoon, welcome. My name is Deborah Burford. I am the manager
for Employee Accountability in the Office of Partnership and Labor Relations here at
the US Office of Personnel Management.
Our office is happy to present the first of three installments of the Employee's Services
Policy series, Back to the Basics. The ES Policy series is a sequence of publicized
training events to improve the capabilities and competencies of federal managers and human
resources practitioners.
It gives me great pleasure to welcome you to this first installment of our ES Policy
series entitled, "Alternative Discipline and Settlement Agreements."
Today's presenter will provide expert knowledge on alternative approaches to discipline and
settlement agreements as part of a tool kit when addressing conduct problems.
You will learn about areas such as traditional versus alternative discipline. Benefits and
disadvantages of alternative discipline, times when alternative discipline may not be appropriate.
Principles to follow, pitfalls to avoid, and best practices.
I encourage everyone to make the most of this presentation including asking questions of
our presenter. You may do so by sending email to employeeaccountability@opm.gov.
We will do our best to field as many questions as possible. Please note that shortly following
the presentation, everyone who registered will receive a hyperlink to an online evaluation
form courtesy of surveymonkey.com.
Simply click the link, follow the instructions, and your valuable instant feedback will be
sent back to us. Your feedback is important to us and helps us plan future topics for
our policy series.
Now, to our main event. We are pleased to have as today's speaker, Sarah Tuck. Miss
Tuck is a Special Assistant at the Management Services Directorate, US Department of Agriculture.
She has authored three publications, "Surviving EEO Complaints," "Discovery Practice Before
the Merit System Protection Board," and "Drafting Durable Settlement Agreements."
She also co-authored "Motions Practice Before the Merit System Protection Board," and "The
Equal Employment Opportunity Commission," with Ernest C. Hadley.
I'm happy to present to you now, Sarah Tuck.
Sarah Tuck: Good afternoon, everyone. Thank you so much for joining us for this session.
I am truly honored that the Office of Personnel Management still thinks enough of me to invite
me to speak on their behalf and I always enjoy doing so. We have a tremendous audience out
there today.
I'm also very happy to hear that not only attorney advisors, employee relations and
labor relations specialists in the audience but we also have frontline managers that is
great because you're the ones who would really benefit from knowing more about alternative
discipline and the benefits that it can provide to you in handling issues in the work place.
Without further ado, I will move on into our presentation. As what's mentioned, if you
have questions, please do email them and they will interrupt me and ask as they feel appropriate.
We have two main objectives today. I don't generally read from the slide, but I just
want to make sure, first of all, that the participants understand what alternative discipline
is and what it's not. Then, a second very important area that is the care that needs
to go into drafting agreements.
One thing you need to understand right off settlement agreements and that alternative
discipline agreements and the other types of agreements we'll be discussing today, they
are legal enforceable agreements.
Therefore, every single word in the document means something. You will be learning more
about that during today's session.
Most of you are familiar with traditional discipline is. There's a set of things that
you can do through traditional discipline.
Generally speaking, there are warnings and letters of reprimands which, depending on
your agency, may or may not count as progressive discipline.
Also, there are suspensions, demotions, removals. Those are the tools that a manager has if
he or she is not interested in looking at alternative discipline.
The best thing about alternative discipline is you have a much broader range of things
that you can do and combinations of things that you can do with an employee to try and
get him or her back on track.
Another thing we're going to be covering today with some detail, is employee rights. They're
very important to both the durability of the agreement as well as having employees trust
this process.
The third one was already mentioned that is we're going to talk about the importance of
drafting agreements properly. Then, last, agency best practices.
As mentioned, just now, there are various types of agreements. There's traditional,
again, we're moving now into agreements, however.
Alternative discipline, generally speaking, something short of removal. You're not looking
to either remove the person as this time or to have, what I call, "An exit agreement,"
or some people may call it, "A separation agreement."
Another type of agreement is last chance agreements. Those are an interesting tool. Sometimes successful,
sometimes not.
However generally speaking, those are when a manager or the agency has decided removal
but then decides, for various reasons, that they want to give the employee one more chance.
We'll be talking about those in more detail, as well.
I don't know if we have EEO specialists but I hope so because the importance of drafting
agreements, if you're agency staff does those directly, is the same, if not even more important
in EEO agreements.
There are many times when management could bring up discussing an agreement with an employee.
As I have listed here, before or after a proposed removal.
When I say, "Before," generally speaking, you have an investigative file or some other
evidence of some strength that says there's action to be taken here. So you can go to
the employee, sit down directly, and talk about that evidence, and say, "If we were
doing traditional discipline, we might be considering a 14 day suspension," for example.
That's a time that you could do it before a serve removal. Under 5CFR 1201 22, those
are regulations by the Merit System Protection Board, which you'll hear that name many times
during this session and I'll start referring to it as the "MSPB."
Employees have a certain amount of days that they can appeal actions, demotions, suspensions
of more than 14 days, removals, and some of other miscellaneous types of actions. Agencies
can now extend that period more, if the employee agrees and try to go through their own alternative
dispute process and comes to some resolution on their own.
After an appeal is filed with the MSPB, you will definitely talk about settlement unless
the case is dismissed based on jurisdictional issues. The reason why is; the administrative
judge over the case will have settlement conferences. It's a normal part of the process.
That also is the case, I mentioned before, the EEOC, the Equal Employment Opportunity
Commission. The settlement attempts, in those cases, start right away, when an employee
is in counseling and they typically continue throughout the processing and even when an
employee has asked for a hearing before a judge or if the case goes onto district court,
even then.
This is the part that surprises some people that you can really bring up the idea of settlement
agreements at any time. Generally speaking what I mean there, are what I call, "Exit
agreement."
Exit agreement is generally when an employee has engaged in some sort of serious misconduct
or perhaps has failed a performance improvement period. Management intends to propose removal.
However, the employee may have some options. For instance, they may know that the employee
really doesn't like their job anyway and that they've been looking elsewhere, whether it's
other federal jobs or private sector jobs, or the employee may be eligible for retirement.
If so, then management again, hopefully has a good file with strong evidence to support
what they are proposing to do. At that time -- that's the second part of this by the way
-- good cause must exist.
You can't sit down and try to bluff an employee into resigning or retiring, you must have
some good reasons behind it or else you could have some other issues called, "Coerced retirement,
resignations," or other types of challenges.
Going back to that, we'll discuss what an exit agreement looks like in some more detail
later on. Actually, OPM is either going to be sending you or has already sent you a sample
[inaudible 09:57] agreement that contains a resignation or, in this case, it was a retirement
clause.
Again, you can talk about it anytime but try not to bluff employees. I'll give you a few
case decisions that we'll talk about later so that you can see what that might look like.
Assistant: Excuse me, Sarah.
Sarah: Yes. I think we have a question already?
Assistant: Question. You mentioned that we must have good cause. Can you give me an example
of when a manager did something that was not good cause?
Sarah: I hope everyone could hear the question. We have, on this slide, the phrase called,
"Good cause." The question was whether I can give an example of when a manager did not
have good cause.
The answer is, "Yes, I can give you a few." One of them would be, "Yes, there was some
type of misconduct, perhaps AWOL, maybe failure to follow instruction."
The manager really does not care for this employee for various reasons. Just hard to
get along with. Whatever it may be. The manager says, "We're planning to fire you."
When, in fact, for the first offense of AWOL, unless it's something extreme, the agency
has never fired an employee for the first time of AWOL, other than probationers, of
course. That would be a case where we're trying to bluff an employee into accepting an agreement
that terminates their employment and that would be an unwise course to take.
OK, I hope that question is answered. All right.
I wanted to get you started thinking about what other things you could do if you decide
you want to try an ADA, Alternative Discipline Agreement.
I'm going to give you something to chew on and then we're going to return to this later
on in the session. All right, if you take a moment please and just read the slide in
front of you.
[silence]
Sarah: I hope you had enough time to read that and certainly, if not, please take your
time and read it again before we advance to the next slide.
There is an acronym in here that you may not be familiar with but if you have friends that
might be eligible for retirement, they could probably tell you what the KMA Club is.
I'm not going to say what it is because OPM would frown on me and I'm not going to do
that today. Please remember this case study, we'll be returning to it.
As I mentioned earlier, the traditional types of discipline are on the left side of this
slide and then, we'll return to come up with some ideas on other things you might want
to try a bit later on.
For the benefit of managers who have not taken disciplinary actions in the past, or for new
labor employee relations professionals, the traditional discipline has a set process.
Of course, it's under regulatory guidance from the Office of Personnel Management, our
friends here that help us as personnelists and attorney advisors.
Managers get through the process but there are certain steps that have to be taken during
that process. As alternative discipline is designed to do, it's designed to correct whatever
undesirable thing is happening at the time.
We've already talked about the types of those formal discipline. So, I'm moving onto the
next one.
Alternative discipline is characterized by what it is not, namely tradition discipline.
I should have put a quote on this because I actually got that definition from the MSPB.
The Merit System Protection Board not only hears the appeals of federal employees and
another type of case that I won't go into here but they also conduct studies of various
federal sector practices and makes suggestions for improvements in those practices.
In 2008, the MSPB published a study on alternative discipline and you can look that up easily
on their website. Along the main tab, they have a studies thing and then just put in
some search terms.
Alternative discipline, it will pull it up eventually. It's now a little older, so it's
further down on the list.
Some of the things I have on this slide, I mentioned, by the MSPB in their study, as
the goals of alternative discipline. Generally speaking, it's going to be a lesser consequence,
at least at that time.
You may have a trigger for later on, if the employee should repeat that behavior where
it becomes the full penalty that you might have taken under traditional discipline. One
of the goals, for employees, at least, is I might receive something lesser if I take
this agreement than if I did not.
It's a little bit of a gamble on the part of the employee because they don't really
generally understand the processes and what would happen if they did not take the agreement.
Just like traditional discipline, it's intended to change that behavior that's causing a problem.
Both parties have to agree. The agency cannot unilaterally force an agreement on an employee.
Of course, one of the main goals of either discipline or alternative discipline, is to
avoid misconduct in the future. That's one of the things that I think is one of the stronger
components of alternative discipline because it gives them some motivation for avoiding
that.
Normally speaking, agencies will have an ADA in place for several years. You could even
have it longer depending on your agencies practices and policies.
Now, it also can be used in the event the employee does return that misconduct or other
misconduct as evidence in a future action that management tried to help this employee
with more constructive ways of modifying behaviors without formal discipline but unfortunately,
it didn't work.
Those of you are ER and LR, and attorney advisors know that this is a Douglas factor in terms
of assessing a penalty for an employee. I think one of the hugest, if not, maybe even
the biggest one from my perspective is that it either reduces or greatly, or avoids, litigation
if the contract, the settlement agreement is written properly with waivers and good
language.
Now, here are some advantages and for managers, some of these were written with the employee
and labor relations people in mind or attorney advisors but it also applies to you and that
is if you are the LR/ER person, it helps you to provide more options for management to
consider in terms of disciplining employees and trying to help reestablish or keep, if
maybe the employee is a good employee and this is a serious thing but he or she is otherwise
been a great employee, it can help keep the relationship going on the right track.
Formal discipline typically will create a tension between the supervisor and the employee,
despite an otherwise good relationship. If there's something that could keep an otherwise
good working relationship moving forward, then that's another huge advantage for supervisors.
Oftentimes, as ER or LR people or attorney advisers, you will find managers who are reluctant
to take action against employees. They certainly don't enjoy the process. I, maybe with one
or two exceptions, have not had supervisors who looked forward to disciplining an employee.
It's not a pleasant experience for anyone involved.
Another huge advantage, from a management perspective as well as your resources in your
agency, is that ADAs can get better results -- or at least as good of results -- with
a lot less time and a lot less agency resources, particularly if you can avoid the litigation
piece of a case.
The next part I have here, which I'm hoping that most of those who practice in our field
will be aware of, are a couple of case decisions -- Stone vs. FDIC and Ward vs. the Postal
Service -- that made labor and employment law a lot more complicated in terms of due
process as well as ensuring that the employee in any formal disciplinary process has all
of the evidence.
I should say appealable actions so not any. 15 day suspensions or more, demotions, and
removals. That they have all of the evidence and, also, are very much aware of all the
Douglas Factors that management considered in taking the action against them and that
they have a chance to respond to that prior to management making the decision on the case.
If you're not familiar with that, then that's something you might want to study, but the
advantage of alternate discipline is if you take an otherwise appealable action... Let's
say if you were going to suspend someone for 45 days but you've decided now that you're
going to do it for 21 days instead.
That would, normally, otherwise be an appealable action to the MSPB. You would have to make
sure that you covered the due process and evidentiary issues discussed in Stone and
Ward and all of the other cases that have come out about those. If you have an ADA,
again, properly written, those are not of concern.
Other advantages of alternative discipline, I think they're usually effective. Even if
they're not, to me they're still effective because you're starting to build the record
that the employee has issues. If the employee has more issues then, again, that can be used
to management's advantage.
It certainly places the employee on notice and also gives them responsibility and control
over their own destiny in that they have the option of not engaging in that misconduct
or other misconduct, again, depending on how your agreement is written, in the future.
The next one I actually already mentioned and that is it gets faster to a resolution.
You get to the resolution faster with ADA than traditional discipline in most cases.
I already mentioned the next one so I'm going on to EEO offenses and liability. I'm only
going to spend a second on this because it's not an EEO class that we're having today.
On EEO offenses, in some cases, such as true harassment cases, if the agency does not move
quickly enough to take action against someone for harassing an employee on an illegal basis
before the EEOC -- meaning race, sex, et cetera -- then the agency may be liable for that
harassment.
This tool can more quickly address things such as harassment and, therefore, end any
harassment and save the agency from liability.
The next one is a big one, and I have a couple of cases listed that I want to discuss briefly
with you. That is under newer law since 2009 to date, agencies have been mitigated on their
actions in many, many cases before the MSPB. For managers, when I say mitigated, perhaps
you took a removal action and the MSPB reduced it to a 14 day suspension instead.
You had to take the employee back, back pay, attorney's fees, and potentially some other
types of relief depending on the type of case that it was. This has become a big deal because
there are comparatives outside of that manager's work unit now that are being made.
You, as the manager, may or may not know about these other cases that could be a comparison
case that will be discussed at the hearing. Now the burden is really on HR professionals
-- labor and employee relation specialists, employee advisers -- to try to look, at least...
This part is still not clear, how broad the search will go.
At USDA, for example, we have 26 component agencies, and they all have different appointing
authorities, different budgets, different types of work, for the most part, even though
in some places it intersects. A dangerous part about this factor is we're not sure how
far, how broad, the comparisons will be.
Based on some training that I've received and reading the cases so far, it looks like
it could be as broad as your HR shop. In other words, if your human resources shop handles
two components of the Navy it could be that broad. That part is still not completely clear.
Nonetheless, it's become a big area of litigation, and cases can be exponentially more complicated
in terms of all of these comparisons that the employee may be able to find out through
discovery exist.
For example, think of all the employees in the agency for the last three to five years
who have been charged absent without leave. That's huge. For some management units, that
could be a very serious offense because there's one person who has to cover, for example,
a particular facility's inspections. That would be a USDA type case.
Whereas in another office you may have 30 employees and if 1 employee is AWOL, did not
call, it's a great impact on the work unit. There are lots of reasons why this is problematic
for agencies. I do think the board is starting to modify how they're looking at these comparisons.
The main thing I want to make, with respect to this presentation, is that the good news
is the board has now decided in two of these cases... Well, really one of them. Portner
vs. Department of Justice. It will not allow comparisons for people who have reached settlement
agreements with the agency.
That would be before a formal proceeding or it could be ADAs, it could be last chance
agreements, those sorts of things. They will no longer allow that with some exceptions.
Like most things in law, there are some exceptions to the rule.
Another case I wanted to point out to you that came out very recently is Bowlin versus
Department of Veteran Affairs. It's another good case for agencies. In that case, an employee
who I believe was under a last chance agreement and the employee messed up again by sending
some emails that were offensive based on religion and ethnicity. The management went ahead and
employed the last chance agreement and removed the employee. He claimed before the board
-- and I will get to this part later about the employee rights -- he tried to claim that
routinely other employees violated the same rule by sending out offensive emails and weren't
disciplined at all.
He got a statement from the union official at the agency along with support from several
employees that said, "Yes, I did that, too, and I wasn't disciplined." The board found
in this case -- although it's not precedential, it's important, it cites to other precedential
cases -- they would not allow such a comparison because he was bound by the terms of the agreement
in terms of his behavior, not what other employees did or did not do.
Because the agency broadly stated what misconduct was -- I believe they said it was all procedures,
policies, and instructions from the agency -- and they said whether it was minor or not
we would employ this agreement. They did not say it had to be of a certain type of discipline.
For example, I've seen some agreements where the employee relation staff would recommend
if we usually would employ a one day suspension or more then we'll activate this last chance
agreement. My advice is not to do that because you're creating comparisons.
I cite some other cases here. I'm calling it "Boucher." It may be Boucher [pronounces
Boucher with a French accent] . In that case, the board found that settlement agreements
were something that could be compared, but since then they have issued "Portner" so I
believe that they have modified that law. You're now safer to assume that these agreements
cannot be compared, outside of certain exceptions. Actually, I will mention that exception later
on.
No double jeopardy problems. What does that mean? In the case of Cooper vs. VA, the board
looked at a case where the employee was, again, under a last chance agreement, but in this
case the agency said, 'Yes, we're going to give you one more chance to stay employed,
but we're going to suspend you for 60 days now. Get the message or you might be leaving
here.'
The agency, again, wrote the agreement well because it withstood scrutiny. The board found
-- which was opposite what one administrative judge had found on the case -- that it was,
indeed, valid. It's not double jeopardy because, in fact, the agency's merely taking the action
that they had already told the employee they would take when they entered into the last
chance agreement.
In other words, the agency had decided removal for that particular case, but they decided
to allow the employee one more chance. All the agency was doing was activating a decision
that had already been made as a result of the employee violating the terms of the agreement.
We've already covered the next point so I'll move on. I'm sorry, but I do repeat it because
the importance of it is so great that if you walk away with nothing else from this session
please do try to write your agreements properly with proper waivers. Again, you do have a
sample -- I'm not going to say it's the best one, your agency may have even better ones
-- but it is important.
Assistant: Excuse me, Sarah?
Sarah: Yes?
Assistant: We have a couple of questions.
Sarah: OK.
Assistant: The first one is if an employee accepts a last chance agreement then engages
in more misconduct, does the agency have to issue another proposal notice before deciding
whether to remove the employee because of the new misconduct?
Sarah: That's a really good question. I do know some agencies that do that. In fact,
there's some case law decisions on that very point where an agency, instead of just going
ahead and taking the action, they decided to propose a new action. It creates confusion
in the case because it's not required unless your own agency has such a policy or maybe
you have a bargaining unit term to that effect.
I would recommend against it. If you believe you have a violation and you have evidence
of that violation and you believe it's clear, I would not propose or have the employee reply
to any new evidence. If you're unsure, you could always have the employee reply.
My thought on that is unless the evidence is clear you don't want to pull the trigger
on an LCA anyway. That's the whole point of the thing. We don't have to propose a new
action. We're going to take it based on the one we've already decided.
Assistant: We have one more. How do you use the Douglas Factors in ADAs, specifically
penalty consistency when different penalties may be imposed under different agreements?
Sarah: As a result of the board's more recent decisions since 2009, at our particular office
we did start including Douglas Factor analysis into the agreement. One reason is we were
concerned about the prospect of comparisons between agreements and traditional discipline,
but we learned there was another advantage to that.
That is; tell the employee all the good things about him or her. Why would the agency want
to enter an agreement with this employee? You have 25 years of service, you have gotten
outstanding performance ratings, you always volunteer for extra chores, you are a great
person and get along great with your coworkers.
It also helps to tell the employee we actually looked at your whole history and we found
that you are somebody we want to keep. We don't want to do any more than we have to,
but we have to address this issue with you.
The point about consistency, again, because the comparisons -- absent discrimination or
whistle-blower reprisal or something else that could be going on behind the scenes with
this employee -- the agreements will no longer be compared by the board.
With the Equal Employment Opportunity Commission, they may look at it, but they also do not
like looking at settlements as the same as traditional discipline because they believe
it has a chilling effect on managers' willingness to settle cases.
With all of the forums that we deal with, they prefer that management and the agencies
settle cases rather than continuously litigate all of them to the end. Is that it for now?
Assistant: Yes. Do we have time for one more?
Sarah: Sure. I'll let you all watch the clock. I don't see one. [laughs]
Assistant: What do you think about a last chance agreement, in lieu of a removal, that
includes a suspension? If the employee violates the last chance agreement and is subsequently
removed, is that double jeopardy?
Sarah: No, it's not. I'll move back to the slide. That question may have come in before.
I covered slide 15. Hopefully I answered that question with the Cooper vs. VA case. The
board has decided it's not double jeopardy because you are allowing something that they
wouldn't otherwise have had and you're merely pulling the trigger on a decision already
made.
That's acceptable before the board. I would say that if your employees do not have appeal
rights to the MSPB and this case might be looked at by the Equal Employment Opportunity
Commission or the Federal Labor Relations Authority you might need to explain that a
lot more how that works and why precedent decision by the board was followed in that
case.
Otherwise, no, the agency can do such a thing. We'll cover that later when we get to the
slide on some ideas on actual terms that could be in agreements. It's not called, "Double
jeopardy." Do you have another question? OK.
Assistant: Sarah, does the 60 day suspension as a result of the agreement receive appeal
rights?
Sarah: Not if the agreement is properly written. There's some limited review that the MSPB
may do in such cases, but they don't look at the merits of the case. I will cover that
in more detail on a later slide. If I don't answer your question by then, please re-pose
it and we'll go into that in more detail.
The possible disadvantages. You see here that the employee may repeat it. Again, for me,
that's not such a big deal because you have a tool that's ready-made to address that in
a very quick fashion depending, again, how you wrote the agreement.
In fact, even when traditional discipline is imposed on employees the reason that people
usually get removed is that there's been more than one instance of misconduct unless the
misconduct was so serious or something such as not having a security clearance when you
must for the position in question.
Agencies generally try progressive discipline. Someone who's been AWOL is usually AWOL a
number of times before you get to removal. To me, even though that's a possible disadvantage
it's not a huge one.
I do get this question, and that is, "Wait a minute, we want other employees... We can't
tell them directly but they know something is going on." The employee is out and then
he or she gets whatever it may be, a 30 day suspension. The time attendance clerk knows
about it.
Of course, things are hard to keep secret in the government. It's just that way. People
say, "Geez, with all that he's done, why would they let him off so easily?" That's a question.
However, I think the advantages, in general, outweigh the disadvantage of that one.
As I mentioned a moment ago, there is the possibility of comparatives for settlement
agreements under some limited exceptions to that law. One of those cases was Spawn vs.
Justice from 2003. That was a big case. There were employees in that case who were all in
the same training session. I think it was customs and border patrol, but I'm not positive
now.
There were a number of them. There were eight or nine employees who engaged in similar misconduct.
Basically, they conspired to cheat on their exams for the class. The agency took action
on all of the cases. A couple of the employees resigned. A few of the employees were offered
alternative discipline agreements and/or last chance agreements. I think a couple were last
chance agreements.
There was one employee, however, and that was Ms. Spawn, who was not offered any settlement
agreement whatsoever. The agency, at the hearing, tried to explain that the reason was because
she had another charge in addition to the cheating on the exam charge.
However, at the hearing the deciding official testified that the other charge was really
not very important, and he would have imposed removal regardless. That meant the difference
in the case was no longer there. Here's the part that gets interesting. The other eight
or nine employees were all males. Ms. Spawn was the only female.
Not only that, but Ms. Spawn was the only female who was on track to become whatever,
customs border patrol agent, whatever the title was. She had been doing an outstanding
job in the class. As with all cases, there are more details, but the bottom line is management
did not explain the difference in treatment in a way that was legitimate and discrimination
was found.
There are times when agreements can be checked against each other, but this is EEO law. It's
much narrower than the law I mentioned earlier on comparisons on Douglas Factors. Is the
agency imposing like discipline for like charges? EEO law is much more exacting than that, and
it has to be that work unit, the same deciding and proposing officials. The misconduct almost
has to be exact.
They even look at Douglas Factors. They don't call them that but they're really very similar.
For example, one employee says, "I'm sorry I did this and I'm not going to do it again."
The employee offers to make good on credit card debt. The other employee doesn't. Something
simple like that would make someone not similarly situated in most cases.
The last one is you may need to involve the union. That's not always a disadvantage, either,
because some unions are very interested in alternative discipline. One of the members
of my staff from some years ago, for the first time, suggested alternative discipline to
union officials and they love it.
They not only love it, but they call her up when an employee comes to them now or they're
representing that employee. They say, "How about one of those ADAs? Can we talk about
that?" It's really helped both the agency and the union if you have a decent relationship
with your unions and you can come to either contract terms or doing it just ad hoc outside
of the contract.
This is a disadvantage and that is ambiguous agreement. That means unclear language subject
to different interpretations by regional people. That would be construed against the agency
because almost always we're the ones that draft the settlement agreements.
If so, that means that if the language is not clear then the agency is responsible for
that. I have this next one, but we've already covered that now. I've mentioned these cases
several slides ago so I'm not going to go into that again now. I think that has been
modified, and it's not cause for much worry.
When alternative discipline may not be appropriate. Some agencies are very attuned and insistent,
in fact, in any guidance they put out, that in order to be considered for alternative
discipline an employee must admit that they committed all of the allegations that the
agency believes in terms of what the wrongdoing was.
Certainly, it's a legitimate concern on the part of managers, but I will tell you the
MSPB study -- and I happen to agree -- it's not really required by anything but maybe
management's sense of righteousness here. You have to tell me you did something wrong
because I can't forgive you and try this ADA if you won't.
Sometimes the employee really might not be guilty of all of the things that management
believes they're guilty of. That's why there are hearings later on. There can be other
evidence that might come out that would shed doubt on that. Sometimes there are reasons
why an employee can't admit to everything.
I do think they need to admit to something. I used poor judgment. I understand that. Some
sort of apology is usually very much appreciated, as well.
Some agencies also want to look at whether or not they believe that the conduct will
recur. If so, then they are not in favor of ADAs. The good part is it's up to your agency's
management how you want to have your policies or your procedures used in ADAs.
You may choose to have all of these things present as part of your ADA offerings. In
other words, you don't offer them unless the person meets all of these criteria.
You may also believe that the person is somebody who just won't listen. You've tried counseling,
you've tried other things that were more gentle. You sent the person to training. At this point,
you're just plain mad. You're like, 'No, I don't want to offer an ADA, I want to do removal.'
This next one is in quotes from the MSPB study. It really is the best thing. It depends. It
depends on the agency managers involved, it depends on your advisers, and it depends a
lot on the particular employee that you're looking at for that.
Again, if employees do take responsibility, they at least say they're sorry, they otherwise
have a good relationship, it's easy to do an ADA. If the relationship is not so easy
then management may resist more. If you look back at the advantages, for those of you who
are first-time managers out there, you may want to reconsider and give it a try.
If you don't like it, the good thing is you don't have to do it again. You just may have
to explain to someone why you didn't offer it to one person but you did another if the
situations are similar.
Last chance agreement. I told you I would go into that in a little more detail. They
are important because you're looking at the end of someone's career, potentially, if they
make one small mistake within however long the duration of the last chance agreement
will go on.
Again, three or four years are not atypical. It really depends on your agency's preferences
and what you want to set as reasonable parameters for agreements. It's also a term, by the way,
that you could negotiate with somebody if you so choose.
It must be voluntary. We've mentioned that before. The next part we will go into more
detail about, but the employee definitely must know what kinds of rights they are waiving.
If they don't know that they otherwise had a right to go to the EEO office or to the
MSPB or to the union or whatever it may be then the agency, especially in more recent
times, needs to take great care to explain what the employee could otherwise choose to
do if they choose not to enter into an agreement. We will cover that in more detail.
I've got a little more information about last chance agreements. It's only because people
find them a little bit confusing. Some of the things I have in this were from an arbitrator's
decision. This was over a labor relations case. I like the way that this arbitrator
described many of the parts of what he or she considered in reaching their decision
about this particular last chance agreement.
It is special. It is a different sort of action. It places a lot of burden on that employee
to make sure they do not violate those terms, but it also provides the just cause that is
typically examined by arbitrators when looking at these types of cases.
As the arbitrator says, it's a trade-off. We could have fired you the last time. We
decided not to. We decided to give you one more chance at saving your career and staying
at work with us.
Obviously, management wouldn't have a reason to not fire someone if they otherwise have
a good case unless, again, there was some strong incentive such as we give you the one
more chance but we really mean it. There's the case cite if anyone would like to look
that up.
Going back to our case study where we had the employee who was not selected for the
next hire... You have a question?
Assistant: Excuse me, Sarah. Yeah, we do. The question is we're a bit confused by your
discussion of Douglas Factors relative to last chance agreements. Is a decision letter,
including Douglas Factors, prepared based on your original proposal as well as a last
chance agreement or are you saying that only a last chance agreement with a Douglas Factor
analysis is prepared?
Sarah: That's a really good question. I'm sorry that was not clear. No, if you already
prepared a decision then no. By the way, you do not need to do any further Douglas Factor
analysis because all you're doing at that point is implementing the decision that's
already been made based on the factors that were present then. There's no need to do that.
The reason I mentioned Douglas Factors in agreements, first of all, it's a purely voluntary
thing to do. No agency needs to do that unless, again, you have a union contract or an agency
procedure set up to do it. What I was trying to explain is why we started doing it in my
agency some years ago.
That was because of the Williams vs. SSA decision from 2009 and the following case law as well
as the fact that it gives the agency an opportunity to talk about the good things about that employee,
to say here's what you did that we're really upset about but we love you anyway. Here's
why we really don't want to take more action.
Please don't be confused. You do not need to include it at all except, of course, in
your original decision. You would have done so, hopefully, as a matter of course if you
decided an action against an employee and it was a removal. I hope that's clear, and
if not please follow up with another question.
Assistant: Sarah, we have one more. If you involve the union, do you suggest negotiation
of the terms of an ADA or not?
Sarah: I think it probably is going to depend greatly on your relationship with your union
and their insistence on that. Of course, I'm not a labor relations specialist so I don't
want to get out of my area. Because it's not required as a government-wide thing I suppose
the union could say, "Yes, we want to talk about this. We want to engage in some bargaining
about it."
I think it's perfectly fine to do it ad hoc. It gives management the flexibility that ADAs
were meant to have. I actually do have information on this later. You don't want to make it mandatory
in every case that management considers ADAs because there are some cases where, clearly,
management will say, "No, we don't want to consider it."
That's because we have Mr. Renegade who has engaged in a misconduct over-and-over and
we do not want to offer that particular employee an ADA. I would say if you could avoid it,
fine, but if you do agree to such a term, speaking on behalf of the agencies, I would
say try to keep it so that management retains the flexibilities of an ADA. That's one of
the huge advantages.
For example, union may want to say we only want these kinds of things included in ADAs.
No suspensions, no removals, no this, no that. That's my advice. We'll see how it works out
with you and your union.
Going back to our study that we introduced earlier with the manager who was unhappy because
he didn't get selected for the next higher-up position. Then he posted unwise things about
his new manager in terms of she's only good for making babies and that sort of thing.
Your agency may have assessed this case and gone he's got a long history, he's been a
decent employee up to now, he's looking at his high three so he's very upset. High three
for retirement, excuse me. He's very upset about not getting that promotion because he
really thought that he would be the next to replace his supervisor who retired.
It's out of character for him, whatever. They looked at it and decided if we were going
to propose traditional discipline it would be a three day suspension.
Now let's look at some ideas for alternatives. If I were here with all of you in person I'd
be asking you for your ideas right now, but since we're not we'll just throw some out
there for your consideration. Keep in mind, none of these are requirements. You can do
any combination of these kinds of ideas together depending, again, on how you decide to approach
it.
Some of these also, by the way, were in the MSPB study that I mentioned earlier. You could
have an employee --we have a holiday weekend -- non-work days you get paid for the holiday.
Backing up. Three day suspension during non-work days. You could involve two weekends, a Saturday,
Sunday, and the next Saturday so you would split up the work days.
Perhaps the person works a non-traditional schedule and only works four days a week,
10 hour days. You could have them on their long weekend, that sort of thing. They don't
actually lose pay but yet there's a formal suspension on the record.
Some agencies get really wrapped around the definition of suspension. There is case law
that says that the agency can do this as part of an ADA. This and another one, which I'll
mention in a moment which is called "A paper suspension."
Serve suspensions in increments. Maybe you do want to suspend that employee for three
days, but the employee says, "Look, I'm really behind on my house payment. I know I didn't
pay my credit card bill, but that's the reason. My kids come first. I've got to feed them."
The employee begs to have this split up into segments to not make his situation worse.
Donates 24 hours of leave to a leave bank. A lot of people like that. Community service,
I don't see that one very often but it certainly could be done, maybe counseling teenagers
on the bad parts of doing online bullying, that sort of thing. Where the schools are
trying to enforce that anyway.
Paper suspension. That one always creates a lot of controversy. I personally like them
as a tool. They can create some problems in some agency systems in terms of, if you actually
suspend the person what does that do to other systems, such as their ability to get into
their computers and the time and attendance record.
If any of you are out there and formally attended one of my classes I actually thought that
it did not create a problem in USDA but later on our in-processing people said, "Yes it
did, but we never told you that it created a problem." The problem for us was that with
their smart pass -- before LincPass -- when someone is suspended it also suspends their
ability to get into any systems.
That can be a big problem for the agency in that the employee really can't do their work.
Also when they return from the suspension the out-processing people had to go through
a lot of work to get them back into the system. Some people now have recommended that maybe
we only process an SF-52, but you could still call a suspension.
As long as you define it as such, and describe that it does serve the same purpose, and it
has the same meaning as a traditional suspension, the MSPB has given that proper weight as a
Douglas Factor in terms of progressive discipline, notice of right and wrong, that sort of thing.
The last one here on this page is one that's popular. That is, you impose part of the suspension,
but you hold the rest pending good behavior. More ideas are the employee could research
the particular problem that he or she encountered, and provides training.
Maybe sends out an anonymous email "Boy, this is what I did. I have learnt my lesson. I
will never do it again. Please don't let yourself get into this sort of trouble. Here's the
situation. Here's what the rules were, and for your own sake please avoid this." That
could be very effective, depending.
Public apology. That's one hard one to get. It's like pulling teeth just like it is from
a manger when an employee wants an apology and an EEO agreement, for example. It just
seems to be one of the most difficult things. But if an employee is willing to do that instead
of being suspended, that might be very effective.
Less variable shifts. That could work for some places not others. For example, if you
do have a labor contract, you're going to have to be careful with that one. Unless the
union agrees and agrees not to file agreements on behalf of the employee because of such
a term.
EAP sessions. Most of us already refer the employee as a matter of course during any
type of disciplinary discussions or actions but in this case, you could actually make
it mandatory that the employee attend because they agreed to go. At least in our agency,
we cannot force an employee to go to an Employee Assistance Program anymore. We could, many
years ago, but not anymore.
But again, as part of an ADA or Last Chance Agreement, you may be able to do it. Promises
not to repeat it -- that would be an obvious term I would think in any agreement that you
might do.
Reassignment -- could be even proper for the problem that we have here. He apologizes on
that web page where he posted the nasty remarks and he is reassigned from that person's supervision
so that she doesn't have to deal with him anymore if she is offended by what he said
and that has harmed the relationship.
OK, so the employee. This is an important part and we'll go into this in some detail.
There are reasons to tell the employee exactly what kinds of rights they are waving, and
sometimes that might be less than clear. For example, we might propose a 30-day suspension
but it is possible that you could decide a suspension that would not otherwise be appealable
to the board.
In such case, I would just say if you reach it before a decision is made on the case,
and I hadn't mentioned this yet but sometimes we do reach those settlements prior to any
action being proposed, and actually I did say that earlier. In such cases, you really
want to explain the rights in detail to the employee in the agreement or at least in writing
in some place.
The employee voluntarily agreed, we already said that. Broad waivers written, and I am
going to give you a little more information about that in a few slides. And then no future
EEO rights can be waived and that's a matter of law.
What do we mean by that? Say, you have an ADA and we're going to impose part of the
discipline now and hold the rest of it in advance, pending good behavior. The current
action is being taken. In other words, the agreement signed this week. We suspend the
employee next week and then we're withholding the rest of the discipline.
The employee then doesn't engage in more misconduct. The employee does engage in more misconduct,
and you decide to impose the rest of the terms.
Those rights cannot be waived in terms of future EEO rights. In other words, at the
time of the agreement what's current, but nothing that happens thereafter even though
it's part of the agreement. I'm going to move on a little more quickly because we have 30
minutes left.
Last Chance Agreements. The employee could establish jurisdiction for the following reasons
that I have on this slide. One of the big ones is that the employee says, "I didn't
breach the agreement. That's not what you told me I had to do. I did that." Voluntarily
agreeing, or if they were coerced. That would be other reasons why an employee might be
able to get that agreement invalidated.
Mutual mistake for the managers out there. What that means is that both the agency and
the employee reached a term that they both reached in good faith believing that it could
be carried out. They both had a mistaken belief that that term was either legal or could be
done. Not so much in last chance, but a common is when agencies tell an employee, "If you
retire then we'll take all of these bad actions out of your employee folder."
It turns out when OPM looks at the case the employee is not actually eligible for retirement.
Again, both parties thought the employee was, but maybe the employee had withdrawn some
money, or some other benefit that made him or her ineligible. That would be an example
of a mutual mistake. OK, drafting is the key. We're moving more into the meat of writing
these settlement agreements.
I have a case load decision that I found interesting. You'll see some of the case facts on the screen.
Just so I can take a drink of water I'm going to let you read that to yourself, and then
we'll move on to what happened. OK, I hope you got a chance to look at that. By the way,
I think the sendrail part, that's the way it was described in the case decision. I tried
to find that. I think it's really a sand rail vehicle.
If you're wondering what a sendrail is, I have no idea. OK, here's what happened later.
The employee challenged it saying, "I did not violate this agreement." We've got something
that says, "Hey, seat belts need to be worn." Agency policy required it. Oops. The Penalties
Guide said there are various penalties that could be imposed as a reason of this violation.
The agency wrote into the agreement, or agreed to this language, that it would require discipline.
None of the reasons the agency quoted here required that discipline be taken. Therefore,
that agreement did not withhold scrutiny. We're going to look at the plain meaning of
the words. The word "required"-- said the Board and of course they're correct -- is
very, very clear. Require means must.
The agency had discretion not to discipline any employee, but chose, unfortunately, to
put the word "required." That's where -- I was talking about earlier -- where one word
could make that agreement fall apart. Every single word counts. This is another interesting
decision. It happens to be a USCA decision. Not one with my current agency. Thank goodness.
Sometimes we reach settlement agreements where the employee says, "OK, I'm before the MSPB.
The judge is giving me hints that maybe my case is not so strong. Maybe I don't really
want to work here anymore anyway." Here is a term, which I'll have you read to yourself
again, that the agency reached with this employee. The agency did something here that was wise.
That is, that if somebody -- prospective employers, or whoever -- is enquiring about this employee
in the future wants any sort of a reference, our HR staff -- in this case it was in Minneapolis
-- will provide one for the employee. They tried to keep the manager who was upset with
this employee out of it. That's smart. I'm going to make sure you had a chance to read
this. What happened later was a bit of a problem. The employee couldn't get jobs. He kept trying
to apply for jobs. Finally, he called up his ex-supervisor and said, "Did you get a reference
check on me from whatever agency?" The manager said, "I decline to answer that. End of conversation."
The employee says, "I smell a rat."
He appealed to the MSPB. He said, "I think the agency somehow breached that provision
that said that I would get neutral references. That was very serious. He couldn't get jobs.
What turned out that happened was that in his application for a particular job he included
a performance appraisal that he'd received while employed at the agency. On the performance
appraisal of course was the name of the manager.
The prospective employer somehow -- which is not hard anymore -- found the phone number
for that manager and called them. The manger tried to do what the agreement said, and repeatedly
referred the caller to the HR staff in Minneapolis. However, the prospective employer kept asking.
She said, "I decline to answer that. Call them."
Finally the prospective employer said, "Well, just tell me one thing. Was he one of your
best employees?" The former manager said, "No." That word caused all of this trouble,
and the employee came back to work for the agency, and is still there. Again, careful
drafting. I cannot over state it. There are areas that cause more problems than others.
I'm hoping we're not going to run out of time. I'm going to hurry up here just a little bit.
Four corners of the agreement. We look at contract law. I'm not going to go into this
in great detail because attorneys and/or probably your employee and labor relations specialists
know a little bit about this. A settlement agreement is a contract. Except for a void
terms of
[63:32] . That's just a hint from me. Don't include things that are defined in regulation
or in lax law dictionary as a legal term. Instead use plain language.
The other things need to be there. The four corners of agreement just means you want it
all in writing in this piece of paper. Noting outside of the agreement was agreed upon.
I just mentioned use plain language. That's a big one. Make sure that terms are very,
very clear. That's harder than you might think because words such as "in public" or "independent,"
a medical exam could cause problems.
When I say in public that goes versus UPS decision where the agency and employee agree
that he would not drink in public any more. He went to a VA bar and had a beer, or something.
Someone reported him. They fired him under his last chance agreement. The agency at the
hearing, the judge said, "Well, what is your definition of in public?" They said, "Well,
any place a member of the public could be."
Well, guess what? That could be his own home. The agreement fell flat for that reason. Do
have other people review your settlement agreements of any form to make sure you haven't missed
something. It's so easy to pick up a sample that someone else gave you and forget to change
things. It's so easy to mistakenly put that extra word like "required discipline" in there
that can cause problems. You do want other eyes on your settlement agreement before you
offer it to the other side.
Good faith. The next part is important. I'm going to skip down to the bottom here and
tell you about the one case that I think is really interesting on this slide. That's Willis
versus Department of Defense. In that case the employee was under Last Chance Agreement.
His supervisor knew because he had gotten a call prior to the police coming that there
were outside police force coming to pick up Mr. Willis for some sort of violation.
The manager actually walked Mr. Willis to the front gate. When the police arrived he
then of course was arrested and left with the police. The manager, as part of the settlement
agreement, it had said that "If you're going to use leave you must request it in advance."
The employee failed to request the leave in advance he charged him AWOL, and they implemented
the agreement.
That's bad faith, folks. Don't do that. I hope that's a clear example. They set him
up because they knew the police were coming, and they expected the employee to turn around
to him and say, "Oh by the way, do you mind if I take a little annual leave this afternoon?"
as they're putting the hand cuffs on him. Don't do that, folks.
I already mentioned that we can't waive future EEO rights. When we're talking about public
policy that can cover some other things as well. With the Whistleblower Protection Enhancement
Act that came out just in the last year and a half, really, we cannot waive this future
whistleblowing rights. The Office of Special Counsel actually has some language that they
recommend that you tell employees if you indeed you had them waive whistleblowing rights in
the past.
Can't threaten or coerce employees. Again, we went through that in that you can't threaten,
"We're going to fire you for this offence." When there's no way that that could have been
sustained if challenged in front of a third party. The next one usually generates some
discussion. I'm going to try to rush through it, and if anybody has questions I can always
provide my email address to you later at my work because I'm actually doing this as a
USCA affair.
That is, if there's actual criminal conduct agencies should not be agreeing to keeping
that confidential. There are ways that you can write your waivers that you are covered
for that sort of thing, and in the agreement language that I provided to OPM, and I hope
that you have. You'll see some ideas along there. Also, make sure you include those due
process rights.
I mentioned that earlier, but in this case called "Perry versus Department of Commerce,"
the employee said, "You didn't tell me I had MSPB rights if I didn't sign this thing."
It turned out he wasn't credible, but nonetheless it caused what we call a remand where the
case was sent back by the MSPB to the administrative judge to take more evidence on that point.
As to whether or not the employee really realized what he was giving up in order to take the
agreement.
Danger areas for drafting agreements. These are really important things to pay attention
to. If you're not very familiar with them as ER/LR professionals, or newer attorneys
in employment law, they are all things that you're going to want to study. In particular
I really advise you to reconsider the idea of confidentiality agreements. At least ones
that bind the agency.
There are so many employees that know things that happened. They really are virtually impossible
to truly keep confidential. There are so many more employees that you don't know what they
know, or may tell someone else because they don't know about the settlement agreement.
Clean record causes. Clauses, excuse me. By the way, there's a very new study that came
out from the MSPB on this very subject. It was just issued in December 2013. It's called
"Clean Records Settlement Agreements." It points out some of the issues that occur and
gives a lot of case law and good things for agencies to consider.
If you haven't read that yet, you may wish to read that one along with the one on the
ADAs. You'll get a lot of good guidance about that. We do not give clean records at my agency
anymore.
They're never call that, and we, in fact, specifically state, "It's not a clean record.
Here's what we're going to do, here's the file we're going to take it from, and that
is it. It is not a clean record."
Someone said, "How are we going to have settlements?" I said, "Well, if it has clean record provisions
we don't. There's too many dangers involved where we will get reversed in that settlement
agreement." When I say reversed I mean the settlement agreement will fall apart in decent
likelihood.
Oral agreements, not such a big deal in ADAs and that sort of thing, but if you get before
the board and even the EEOC if there's transcription involved they will let you reach oral agreements.
Be very careful because it's so hard to get the wording just right for an agreement when
you're just on the spot doing it with your memory.
If nothing else, take your agency standard waiver agreements with you if you think that
could occur.
Duration of the ADA. Some people want to only make them one year. Sometimes that's too short
so you may want to not do that sort of thing. Reference clauses. That's another one that's
really problematic. If you look at our sample, you'll see a style of doing it. Again, your
agency may have their own.
I do have a case on that one, unfortunately, that's on the next slide, I believe. Next
slide or two. Clauses that have not been researched. The MSPB, as part of its study, asked agency
representatives, "How many of you routinely," I think is the way it was stated, "researched
every topic?" Only 41 percent of the respondents said that they did that.
Clear, broad, and appropriate waivers. I'm not going to go into that in great detail
just because we are getting a little short on time. The last one is binding third parties
to the agreement's terms such as, again, telling OPM, "We said this person could retire and
now you're saying they can't."
You can't tell OPM how to do their job or promise an employee something that's not within
your authority.
Waivers and agreements.
The Perry case, we already covered that. Since I want to make sure we get through our slides,
I'm going to go on. Beware. This was an interesting case that's got a lot, a lot of details. I
recommend that you read this if you're attorney advisers and ER/LR professionals.
There was an employee -- and I'm sorry OPM for having to bring this case up -- a criminal
investigator was hired by OPM to look into I think doing background security checks,
et cetera. He ended up being terminated from his position and filed an appeal with the
MSPB.
The case settled before the MSPB with a clean record provision in it where the agency agreed
they would get rid of this provision. It also had a very strict confidentiality provision
in it, as well. The former employee turned around and got a job with a contractor doing
investigations for OPM background security checks. Talk about poor OPM getting mired
into a real situation here.
Two employees of OPM, unfortunately, probably didn't know about these terms. They were asked
about it as part of his background investigation which he needed to have to become a contract
investigator for OPM. Does this sound confusing or what? There was a breach because two employees
talked about his termination.
He tried to take this case through various levels, but I'm going to cut to the chase.
The important part of this case is that once his new employer found out that he had been
terminated and OPM, in fact, told him, "You've got to suspend that guy, he can't be an investigator
now," he lost his job.
He did have what we call damages because he lost a position as a result of a violation.
Before the EEOC and MSPB, neither of them give damages, monetary damages, for violations.
There are other things they can do but not that.
It turns out, now, that this case can go before the US Court of Claims for damages. It's very,
very important to, A, not violate agreements, B, write your agreements very carefully, and,
C, make sure you include waivers that include damages in any form to include and not limited
to blah, blah, blah and the Court of Appeals.
When I say, "Blah, blah, blah," I mean, "MSPB, EEOC, Federal Court, District Court, and now
the Court of Appeals." In red, I have some language in the sample settlement agreement
that was either sent out to you or will be sent out to you.
Best practices. Yay, we're going to make it because we only have a few minutes left. A
lot of managers and a lot of agencies, actually, as of when the MSPB did their study in 2008,
still weren't using AD, alternative discipline. It just hadn't occurred to them.
Since then, OPM has been doing a great deal of training on this subject, both in some
smaller classes that we had before and now here today with all of you. If your managers
aren't aware of it, you may want to start thinking about some of these ideas and seeing
what your agency wants to do about them.
Again, not all managers have to do it. Some managers may say, "No, I won't." Other managers
may be very receptive to it. You could have a formal policy. That's one thing the MSPB
recommended in their study, but don't make it overly restrictive is my advice on that.
Empower either management or the employee. You could invite the employee. If you're interested,
let us know. That way, the employee would realize there's some benefit for me coming
back and talking to my manager again, who I'm mad at right now. It can, again, help
repair that relationship.
The MSPB also recommended that agencies track result. Is it working for you? Is it saving
money? Is it saving time? Is it saving employee morale? There are various things you could
try to check. Again, you could negotiate with your labor unions on this to see whether or
not they're interested in trying that for their employees and their kinds of cases.
We've already mentioned the first one so I won't say that one again. We actually already
mentioned the second one, and that is; don't make ADAs a requirement if you do negotiate
with your union. You may be tying your hands from the very thing that you hoped to create
which was flexibility based on that individual employee's situation, management's view of
that employee, and the employee's willingness to do better in the future.
Make sure you give employees accurate information. That's another reason why settlement agreements
can be determined invalid is that the agency, by mistake, gave them wrong information and
they based a decision on that wrong information that harm them.
Avoid bad faith. We covered that with the Willis case where the agency manager actually
walked his employee out to the front gate knowing that he was going to be arrested and
the employee didn't know. Then they charged him AWOL for forgetting to ask for leave.
In all agreements, do due proper waivers. It is legal. The board wouldn't say they encourage
it, but certainly they're wondering why you don't do it if you don't waive future MSPB
rights. Again, you as the agency, you're trying to buy time, money, resources by saving a
lot of work and not having to do the traditional process, traditional appeals, and EEO complaints.
I'm not going to go into great detail, but hopefully you're familiar with the Older Worker
Benefit Protection Act. We use them routinely, although it's probably not required.
I just think it's a good practice because no matter what forum the employee might challenge
a settlement agreement in if you have the waivers to cover that forum then the case
is more than likely going to be closed without a lot of review and time on the part of agency
managers, attorneys, ER, and other people.
I just mentioned the case with OPM Cunningham, and that's about the Court of Claims. Research
all terms. As we mentioned before, if you don't you're sort of asking for trouble. I
also recommend that you research them not only in MSPB law but in any other forum that
might apply such as the EEOC, FLRA.
We are at my last slide. Here, we have some resources that you may want to look at. Certainly,
you can work with other agencies and find out what kinds of agreements they've reached.
Maybe they'll provide you some samples to look at if you've never done it.
Office of Personnel Management, again, is doing a tremendous job at educating and providing
tools that help with figuring out how these things should be done properly. Look at case
file decisions, look at MSPB studies. As I mentioned, look at EEO law and any other form
you can think of.
We have only a few minutes left, but I don't know if we have more questions.
Assistant: We do. The first one is in a situation where an employee has a proposal to remove
due to failure to perform, is an exit agreement appropriate? The employee wants to retire
some time in December so the agreement will say something like, 'Now you will serve a
30 day suspension for lack of performance, and on December 31 you will retire.'
Can an employee serve a suspension due to performance failure?
Sarah: That's a different idea. It's interesting. I'm not sure that I personally would want
to do that particular term because, generally speaking, true performance problems are not
something the employee does on purpose. However, it is true that the agency has the authority
under case file decisions to take an action. It's called [inaudible 78:59] versus Navy,
if you want to know. It's a fed circuit decision from about 1986. They have the authority to
take a disciplinary action in lieu of a performance-based action. Because they have the authority to
do so, I think they could do that.
Again, write your agreement terms very carefully, and make sure you will retire on December
31 very clearly. If they don't retire, you need another provision and it says or you
will resign and we will process it for you. We can't make people give us paperwork that
OPM needs in order to process a retirement.
The answer is, "Yes, you could do that," but very carefully consider your terms.
Assistant: Another one is, is there some reason you're making a reference to a just cause
standard from page 20 rather than the efficiency of the service standard?
Sarah: For those of you who might not remember what that slide was about, that was where
the arbitrator decided whether or not a last chance agreement was legal and whether or
not what the agency did was something that should go in their favor.
Typically speaking, in labor relations law that's the clause they use is just clause
versus preponderance of the evidence. It's merely terminology that differs between different
forums.
Assistant: Another question is regarding last chance agreements. Appellant complainant shall
direct all requests for references to the supervisor human resources at phone number.
Agency is not responsible for liable for any reference requests made to and/or requested
of any other agency official or employee.
Sarah: What's the question?
Assistant: Is that appropriate for a last chance agreement?
Sarah: Yes, actually, it sounds like you're reading from the settlement agreement, that
part that I sent out or will be sent out by OPM. It was suggested language for you to
consider because it saves you from the problem of confidentiality clauses.
Also, employees leaking information because either they don't know or they did know but
they don't know about the settlement agreement terms, that they gave information that was
in violation.
If you'd say, "Don't refer anyone to anyone, except for Sarah Tuck, for this reference.
If you do, it's your fault." Then you save yourself from the violation that happened
with the poet versus USCA case.
Deborah: OK, thank you, Sarah for sharing your expertise during today's ES Policy series
installment on Alternative Discipline and Settlement Agreements.
Your presentation has provided an outstanding explanation of this subject. I'd also like
to thank OPM's Communication staff for their webcast of this presentation, as well as our
facilities personnel, who helped to make this event possible.
A very special thanks to my staff for their work in coordinating this policy series. Thank
you for participating today and we look forward to having you at our next installment of the
Employee Services Policy Series.
Shortly, you will be receiving an email with a hyperlink to an online evaluation form courtesy
of surveymonkey.com. Your feedback helps us to plan future topics for our ES Policy series.
Have a good afternoon.