Site Loader
Alternative Discipline and Settlement Agreements

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 [email protected] 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 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 Your feedback helps us
to plan future topics for our ES Policy series. Have a good afternoon.

Reynold King

Leave a Reply

Your email address will not be published. Required fields are marked *