November 15, 2019
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Good afternoon. My name is Tim Curry, I am the Deputy
Associate Director for Partnership and Labor
Relations here at OPM, and I would like to
give you a welcome to our Employee and
Labor Relations Roundtable on
Settlement Agreements. In addition to the folks we
have here in auditorium, we also have several hundred
people participating via webcast across the country. OPM’s Partnership and
Labor Relations presents these roundtables as part
of our ongoing effort to present reliable and relevant
development opportunities for labor and employee
relations practitioners. So included in
today’s discussion will be the preparation of
settlement agreements, a discussion of legal terms and the dos and don’ts
for drafting superior MSPB Settlement Agreements. So in your packets you
will find biographies of today’s presenters, the PowerPoint presentation
that will be used today, some handouts, and an evaluation form and I would like to ask
you to please take time to complete the evaluation form when we’re finished and
before you leave today because your feedback
is very important to us. So let me go through some
logistics before we get started. First, I would like to highlight that we will be taking a
short ten-minute break about the midway point
during this session. For those of you here
in the auditorium, the restrooms are
located on this level, beyond the elevator banks, and
for folks from outside OPM, NASS score is required, but OPM staff will be
available to assist you. For those that are
participating via webcast, you have an opportunity to
submit questions via email. The email address is
[email protected] and I’ll repeat that,
it’s [email protected] We’ll do our best to field as
many questions as possible in the time allotted. For those of you that are
here in the auditorium, when we’re ready to
take questions, we’re going to ask you
to raise your hand and wait for a microphone
to be brought to you because we want everybody
to be able to hear the question you’d ask, including the people
watching via webcast. And basically around 2:20, we
will stop the presentation and allow some questions to be
answered for about 10 minutes and then we’ll go ahead and
take the break at 2:30. So before leaving today,
just as a reminder, please complete your
evaluation form, your feedback has helped… is a big help to us in preparing
for future roundtable session, so please take the
time to do that. And after the session
is over for those who are watching by webcast, we’ll give you
additional instructions on how you can submit your
evaluation forms to us. So I would like to kind of go
to why we are here today. I am going to introduce
our speakers here. First I am going to
start with Sarah Tuck. Sarah Tuck is a supervisory
employee relation specialist with the marketing and
regulatory programs at the U.S. Department
of Agriculture. With her wealth of knowledge, she has been a presenter at the
EEOC’s annual EXCEL Conference for the last ten years and has presented at
other conferences, including in OPM’s
former symposium on employee and labor relations, at the federal employment
lawyers group, the Merit Systems
Protection Board, the D.C. Bar Association and
numerous other USDA events. Her co-speaker today
is Mr. Peter Broida. He is the President
of Dewey Publications. He regularly practices
before the MSPB and the United States Court of
Appeals for the Federal Circuit, and he also provides
representation before the EEOC, the FLRA, labor arbitrators and other federal courts
across the country. You also maybe familiar
with Mr. Broida’s books. He writes the annual editions of A Guide to Merit
Systems Protection Board Law and Practice, and A Guide to Federal
Labor Relations Authority Law and Practice. So please join me in
giving a warm welcome to Sarah and Peter. Thank you. [Applause] Good afternoon. Welcome aboard. We’re going to be
talking about settlement. One of my friends,
I don’t have many friends, but one of them was talking to
me the other day and he said, he had checked me on CyberFEDS to see how many recent Board
cases I had associated with me, and he said he
didn’t find many, which is his way
of a put down. But what I told
him was unlike him I can settle all of my cases, and he has to litigate
them for years particularly in the EEO forum. So I do appreciate
the opportunity to speak to you
about settlement. One of the reasons that I am so
interested in settlement is because of the extraordinary
length of litigation that goes on with
these personnel cases whether it’s an EEO,
which is very lengthy, or MSPB which is
reasonably lengthy, or in the federal circuit
where it takes about a year to get to the point
of a decision after you file an appeal. And you’ll notice in
most Board decisions, if you look for it, that there are very
few references, for example to the dates
of initial decisions or for that matter the
judges who issued them and the Board doesn’t give
you a lot of information really about the length of time that it takes to
traverse the process, but it’s very, very long. And although I do represent
some agencies and a few unions, most of my work involves
representations of appellants, people just like you
in middle life. They don’t have huge
amounts of money. They do have
considerable obligations and perhaps they originally
deserved to be fired and maybe not, nonetheless the expense and
the duration of litigation is considerable
for these people. So, I think we do well if we can
settle some of these cases. And one of the questions
that comes up, since it happens to be on
our slides, some place, there it is, when is a good time
to discuss settlement? Well, I say any old time. One of the times when I try
to discuss settlement is, for example,
at the oral reply in adverse action or
performance based action. I usually I’ll go
through the reply but I’ll suggest to
the deciding official, or if they have counsel present that it would be
a real nice idea if we talk later to see if
something could be worked out. So I start right away, and sometimes clients
are concerned, do you think we should
offer settlement first or should we wait
for the agency? I have been litigating for
37 years and 10 months, that’s more than most of your
folks have been alive, except for one. So you really want to start
as early as possible, so you can bring the
litigation to a conclusion within your career or
certainly your lifespan. And I don’t care who starts
the talk about settlement as long as it begins, and the same is true in labor
relations, in arbitration, EEO, as in MSPB. There is never a point
where I would say, it’s too early to
discuss settlement. If I could add
something to that, agencies often feel
awkward or unsure about whether or not they can
approach an employee with a settlement discussion
outside of the EEO process and adding to that, some EEO counselors or
specialists don’t think that they can try to negotiate, for example an exit agreement
with a complainant, and we’re not going to
focus on EEO cases here, but with a complainant
if the issue isn’t I got forced to retire
or I was fired, when in fact really anytime
is right to discuss that. The employee may wish to find
a way to leave the agency. There are other cases like our alternative
discipline agreements, which some people, employers are
using to their best advantage, and I would recommend that any
time you have facts to support whatever it is that you’re going
to discuss with the employee, you can always raise that as a potential way of
resolving the case. So, settlement is always
a good thing to discuss. In our slide here, we have referenced to a
Board regulation 1201.22 which expands the 30-day time
limit for filing an appeal with a Board, which
is rather inflexible, if the parties agree in writing to extend that time
period for 30 days so that they can
discuss settlement. Now we have, I can’t see all the people
out there in the Internet, maybe there is nobody
on the Internet, I really can’t see you very well but I can see the people
in the studio audience, and we have a cast of
thousands here. Ladies and gentlemen, has anybody ever taken advantage
of that regulation to extend it, the time period for
filing an appeal so that settlement
could be discussed? That’s what I thought. It’s never been done in
the history of the world. I mean after all, you’ve just gone all this
trouble to fire somebody, why you are going to
extend things for 30 days to allow them a period of time
to appeal later if you… and try to settle the case you’ve just gone all this
trouble to fire the person. It just never happens,
but that is not to say that you shouldn’t try to settle
the case earlier possible. I just never see
this procedure used. It was written by people at the
Board who don’t litigate cases, you know, and
they’re my friends. You know, I speak of
them with admiration. They just should have asked
me and settle it first. So I don’t know if
that’s too practical, but again I emphasize, how many of you have ever
been at an oral reply? You can raise your hands, I am not going to
hold against you… yes, some of my friends
who are out there who have fired my clients, yes, there you are. [Laughter] Yeah I encourage all of you, and that includes
those in the… the Internet audience
that I can’t see, to attend oral replies, they are neat, they are fun. It’s something you do… it’s a little bit different
than your ordinary work, but most important listen
to what the appellant or the appellant’s
representative is saying. There might be a
grain of truth to it, and by all means if you
have the opportunity, after the reply is done
not during the reply but after the reply before
the decision comes down or while the decision
is being formulated, again that’s a good point
to discuss settlement. You don’t have to go through
this Board regulation to do it to extend the time for appeal, this is all pre-decisional. And if I could comment
on the regulation, my feeling why
agencies don’t use that at all or at least
occasionally are two reasons. One, in most cases we have tried
in either previous actions or on our own to try
to resolve something with that appellant before, but the second one I think is
the main one from my experience and that is why would we
pay for mediation in-house when we can get it for
free from the MSPB. Once we have judge on the case, the appellant is more likely to listen to a judge
than the agency, who he or she has no reason
to trust at that point. So I think the regulation
is just not one that’s going to be employed
much even in the future. So… Sarah do you want to
discuss the next slide here? Yes, I will although I
believe that one is yours, it’s okay. [Laughter] I think I mentioned
this already. If you are going to sit
down with an employee either before a proposal
has been issued, or after a proposal
has been issued, or at any other time, in Board law you really need to
have some sort of good cause for having that discussion
with the employee. If you sit down and
make empty threats, “Well, Joe, we are
going to fire you, you know, we haven’t
done the investigation yet, but we know you did xyz” or may be, “We don’t even know it,
but we are bluffing with you,” the Board will not like that because it’s operating
in bad faith, which we will discuss later
on in the presentation. The EEOC, again we are
not going to focus on them here, but they tend to
look at it differently. They don’t really care. You can make threats when
you are talking about settlement and when they say, they are not encouraging
that of course, but they just have
a different view of that. So make sure you have
got your facts together if you are going to sit
down with an employee to say why you may be proposing whatever it may be
a demotion or removal. Be careful what you say,
there have been Board cases that goes something
like this personalist or even an agency counsel
sits down with an employee, who is looking
at a proposed adverse or performance based action, and says something
to the employee like, “Well, if you don’t
accept a settlement, the government will
never ever hire you again, you will be fired, you will never have a
chance for future employment, you can’t get
future employment.” That’s going a little far. They may have a hard time
getting future employment particularly if
they’re going to jail, but it doesn’t mean
they are barred from getting future employment. They haven’t been
deemed unsuitable. They haven’t been barred by
the OPM from seeking employment. So be careful what you
say, measure your words. Know what you are going to say before you starts
speaking to the employee because what happens is
after the employee signs off in the settlement agreement
and has second thoughts, as a lot of them do, even with me as their counsel, why then they may want to litigate the validity
of the settlement and then months pass,
people’s recollections fade and it becomes a credibility
dispute as to what you said, as an ER or HR specialist
or even as an attorney and what the employee
says and what happens then? You get to be a witness,
isn’t that fun? Yes, it is. And I get to depose
you that’s really neat, and then somebody has to
make a credibility judgment. So be very careful
about your discussions. I’m not suggesting
you record them, but be careful with
a lot of the comments, they can come back to haunt you. Okay, well thank you. Okay on to the next slide, we are not going to
go into great detail on the basic contract law, but the main points
that we want to make sure that everyone understands
is that any agreement whether it’s a alternative
discipline agreement, it’s an EEO agreement, it’s an MSPB agreement, it’s a last chance agreement, whatever type of agreement
that you are reaching is subject to contract
law interpretations and although the
board uses it sparely, you will see that sprinkled into
their decisions here and there. Just very quickly
for those who don’t know what consideration is, consideration means that both
parties get some form of benefit of meaningful value because
of that settlement agreement? A lot of times for the
agency it’s the fact that the employee does go away
with a resignation for example, that’s enough. For the employee
the same could be true, because his or her chances
of finding other employment should be greater
with the resignation than a removal action. So, there has to be something
of value of these agreements that say we are going
to agree to respect and love each other from now on. They are meaningless really, they can get you in trouble, but we have a… we will
talk about that more shortly, but make sure there is something
in there for the employee, when you are
reaching agreements. Four corners of the agreement, what that means is that the Board and the
EEOC for that matter are really going to look at
what is in the agreement. You might all say well
we sat at the table and here is what we discussed and we really meant
to put in here that you weren’t going
to come back to work for our agency any more,
but we forgot, but you know it. If it’s not in there, it’s not going to be
part of the agreement. That causes lots of problems
if you don’t clearly define what it is that
you have agreed to. Say what you mean
and mean what you say, basically goes to the honesty
part of dealing with an employee and not trying to pull
the wool over them. I know I said in a mediation once before the Board
and the employee asked that I be the person and
answers his reference cause from prospective employers
and I told him upfront, I said “I really think
that’s a bad idea,” but he insisted that I do it, so later on in the
meeting he said, “Well, you are not
an IT specialist, when you start
talking about my work, what are you going to say?” And I said, I will
say his name is Dan, “I said Dan, I’m going to say exactly
what it says in this agreement for up to one year
as the agreement says.” His attorney then
poked him and said, “Just shut up and sign it.” But I didn’t say that and I tried to be
honest with the employee because that I think breeds
a lot of the problems that happen later is when we try to force someone into a
settlement and we rush it because oh-oh, they are going
to sign on that dotted line, let’s get it done. And I think sometimes
that could be a mistake because really if both parties
wanted to reach that agreement and it’s of mutual
benefit to both, it’s more likely
to be enforceable or be enforced later on and
hopefully not cause issues. Meeting of the minds, again that’s sort of the
same thing, we both… we all understood what it
was we were agreeing to. And although that
might seem simple, it really isn’t sometimes
when you are dealing with pro se appellants
or even attorneys who are not very well versed in federal sector
language and practice. They don’t really
know what things mean, so you know again you have to
come to an understanding of what is it that we are
really talking about here and do we agree? And keep it legal, we will get into that
more in a little bit, but that’ obviously a main point
if an agreement is legal… is not legal excuse me, then that could be a basis
for not enforcing that agreement and returning to litigation
or renegotiating the settlement. Before we move on Sarah, that case there, Greco versus
Department of the Army, that was my case. I did not draft a
settlement agreement there but I did litigate the Board’s
treatment of the settlement in the federal circuit and one of the provisions
of the agreement was ambiguous and as I recall it
the Board had refused to take parole evidence
which we will get into later to try to explain what
the provision meant. So I remember arguing this case
through the federal circuit and when you do that
you’ve got three judges, a panel of three judges who are listening to
what you have to say. And I remember the chief judge,
the chairman of the panel, looked down at me and said, “Mr. Broida, why didn’t
you just spell out what you meant
in that agreement?” And the answer was “Your Honor, I didn’t
write the agreement,” which was true. It was written by another lawyer and then the case came
to me for enforcement and if that lawyer had more
clearly expressed himself that case would not have arisen, a lot of cases like it
wouldn’t arise either. Now I asked the lawyer
why it was left ambiguous, and what the lawyer told me was that the
agreement was drafted during the afternoon
of a Board hearing and the MSPB judge wanted
to done then and there and put into the
record then and there, so that the case could be taken
off the judge’s docket there and then within initial decision
accepting the agreement. And that’s all well and fine, but it’s rushed and I urge you
with these settlement agreements not to let judges whether
they are at the EEOC or mediators or judges
at the MSPB or arbitrators rush you into an agreement or hold you till
10 o’clock at night, it’s really quite exhausting. You want to think
through an agreement, we’ll get through the process of
going through some drafts a couple of slides from now. I have also had cases
going either to the Board or to the federal circuit where
the agreements are ambiguous and I say to the lawyer, “What were you
thinking at the time? What was going on here?” And the answer is, “We couldn’t get the agency
to agree to something or another so we left it ambiguous, so that there could be
future elucidating litigation,” that is to say me, you know arguing the case some
place, bad, very, very bad. Don’t let it happen to you. Make sure ambiguity is
not in your agreements because the
elucidating litigation may involve that
agreement, your case, and a lot of money
and time later on. And that’s a nice
thing for Peter to say since he is an attorney
and would get a fees if he prevailed on his argument. I don’t get fees. I do this all for free,
just like this today. I wanted to talk
to OPM about that. [Laughter] Okay, going to the next slide. I already have
mentioned this really, but good faith is required when
we’re reaching agreements and it can’t be overstated that
we are honest with the employee, you know, for example
disability retirement. Now, we are going to talk
about some of OPM’s rules, you’ll be very happy OPM, but, you know, if you’re trying to pull
the wool over an employee, say he or she has a minor
impairment of some sort and you want to get him
or her out of there. So, you say well
don’t worry Joe, we’re going to support you on your disability
retirement package when, you know, that OPM is unlikely
to approve such a package, then that’s not
acting in good faith. So, again, just keep
it in mind that, first of all, you have
reached the agreement, and if you do then you are
going to either go back to compliance with that agreement
through the Board procedures if the appellant or employee
know enough to do that or potentially to litigation, or if you got rid of
the employee unfairly, he or she may just come
back straight to the roles, maybe there was no proposal
or decision pending. In such case you may not
go back to litigation, you might actually have
the employee back. So, you have to be
careful at those things, depending on the
wording of agreements and I will actually
go through one case in some detail later on. The next slide… who’s responsible for the
terms of the agreement? The answer should be obvious
that it’s the parties. I think a lot of
agency representatives, particularly, if they
are not very experienced will look to the judge
to try to guide them in terms of the terms
that should be included that would protect the
agencies’ interests and that’s just not
the way it works. Now, there are many judges
who will provide you either ideas or maybe even
samples from another settlement that they reached that is related to the one that
you’re trying to reach, but really they can’t write
in to the agreement terms that you didn’t put there and that comes later on, that part comes later on
when you’re trying to work out an ambiguous disagreement… a disagreement about
an ambiguous term or some other dispute and that’s the last case
that I cite here. As you’re noticing,
we cited cases so that if you want to go back
and look up some of these points and what all of these
cases say, you can do so. Some of the cases we’ll go
in through detail… but… go through in detail,
but the parties are up… it’s up to you. They won’t help
appellants either when it comes to
wording that agreement. So, that’s just something
to keep in mind as you’re drafting
the agreements. Some of the drafting tips that I
have in one of your handouts might help you with
regards to that, for example talking to your
personnel specialists if you have an issue that may
involve a personnel term. Another thing is, of course, let
other people see your agreement. Don’t reach oral agreements, but we’ll get into
that in some detail later on in the presentation, but just be very, very careful that you’ve really covered
everything in that agreement. Before we move on there, some agencies in order to
deal with the situation of how do we structure
these agreements, they, kind of, go overboard and what they do is
they create a template, a form of agreement. I am thinking of one
very large agency that I handle a lot
of cases with and no matter where
the case happens to be the settlement
template is the same. It usually has absolutely
nothing to do with the facts or the circumstances
of the case, but the HR office is
extremely reluctant to vary the terms
of that template, because it’s on
their word processor and somebody some place
in the central office, a thousand miles or ten
miles away created that and they feel powerless
to deal with it. So, I spend lots of
time with attorneys from that particular agency trying to override
the HR specialist who feel bound and determined to use that particular
template all the time. It’s, kind of, like
for those of you do cases before the MSPB, the acknowledgement orders
that come out of the MSPB or for those of you who
do work with the EOC, they call them
Acknowledgement and Orders, although I’ve recently seen
that acknowledgement order without the end from the
Washington field office, but they’re all the same and oftentimes they
have very little to do with the circumstances
of the case, because somebody has put them
together on a word processor. So, although I think
you need to be careful in trying to come
up with settlements that are comprehensive, I think you still have to
use your own initiative, intelligence, training.
and some research to develop those agreements and not rely upon the
efforts of others. Okay. Whose is this? You sir. Really, alright,
okay fine. We worked on this for
many hours in advance, putting initials
beside the slides; it’s just that I
can’t see that far. Alright, entry of the
settlement in to the record and here we’re talking about the Merit Systems
Protection Board. Do you have to enter a
settlement agreement into the record of the Board? No, you don’t have to. From the perspective
of the appellant who’s usually receiving the principal benefit
of the agreement; after all, most of my
clients have been fired and they’re trying
to get something back, maybe it’s a job,
maybe it’ some money, maybe say decent reference,
whatever it happens to be, they want it to be or they
should want it to be enforceable and the law is such that if you
have a settlement agreement that is not entered into
the record of the MSPB or if you happen to
have a EEO case is going on at the same time, so it could be entered into
the record of an EEO case, if it’s not entered
into somebody’s record it’s basically unenforceable. You just can’t walk into a
United States District Court or into the United States Court
of Federal Claims and say, “Here is a contract
with the government. I want it enforced here.” The answer will be, “Sorry, we’re not
the proper forum, you should have done
that with the MSPB.” In order to get a
settlement agreement entered in to the
record of the MSPB for purposes of enforcement, and I want to emphasize, the Board does not approve
settlement agreements. They don’t bless them as
being good or bad in most cases with one exception we’ll get to. The Board simply accepts
them into the record. It will determine, that is to say the judge
assigned to the case will read the settlement to
see if there’s anything that’s blatantly
unlawful about it that much they’re
supposed to do. Both parties have to
agree that the settlement will be entered into the
record of the Board. It cannot be done unilaterally and that should be stated right
in the face of the settlement. Now, I’ve had cases where the parties have
agreed to a settlement. They’ve agreed to put it
into the record of the Board, and then the judge
of the Board decides not to accept the
settlement agreement for purpose of enforcement because of some
jurisdictional issue and dismisses the
case as settled. It’s infuriating, because then I can’t
enforce that agreement and the judge has essentially
torpedoed the efforts of the parties without giving them
advance notice and asking that they can cure the
jurisdictional defect. That could be the case in a
constructive adverse action, a PO or perhaps a
whistleblower appeal. And we’re not getting in to
the jurisdictional niceties right now, that would take
another three or four hours, but what I will do in
settlement agreements to make sure the judge
does not do that is to say that the parties agree that the settlement agreement will be entered into the
record of the Board and upon the entry
of the settlement into the record of the Board and only then may the
case be dismissed. And then I write the
judge a letter saying, “Hi judge! We just settled the case, but
the settlement is conditional upon your acceptance
of this agreement into the record for
purposes of enforcement.” So, the judge looks
at that and says, “Hmm… this is not so good. If I don’t accept that agreement
for purposes of enforcement, the case is not settled, and I’ve got to deal with these
characters at a hearing.” That gives the judge
some motivation to enter that agreement
into the record even if there’s some
possible question or, at least to
bring the question to the attention of the parties and not simply to
reject the agreement for purpose of enforcement and then just to dismiss
the case as settled. Everybody understand the conditional nature
of the settlement? Okay. Preparation for settlement what to include, what to avoid? Well, let me make a
suggestion to you on the process of settlement
having gone through this hundreds or perhaps
a thousand times. I don’t know I was
doing it yesterday, I’ll do it tomorrow. It seems that most of life is
spent on settlement agreements. Here is the way I do it. What I try to do is
to keep a record of what is going on during
the settlement process. Who is doing what to whom? Why are drafts
being exchanged? What are the conversations
with my client? What leads from one
settlement draft to another? And so what I put together
is a settlement file. I should have brought
one here today, but all it is, is basically
is a Acco Binder, with separator tabs,
1, 2, 3, 4, A, B, C, D whatever it happens to
be with an index indicating the first draft
that goes into the file and it will contain that
first draft as a Tab A and my comments about
the first draft or my conversations
with the client, conversations with the
judge, the mediator, perhaps the opposing counsel and then in comes the
agencies draft, that’s Tab B, then Tab C will be
our counter proposal, again, with the memo to file
containing my conversations with whoever I had
conversations with. In other words, why was it that this agreement evolved
in a particular way? What we were trying
to accomplish, what where we talking about and in the end, if the
process is successful the last item in the little
file will be the settlement and then that settlement will,
of course, go to the judge and get accepted into the record
for purposes of enforcement. Why do I go to
all this trouble? Who cares anyway
about the drafts? You should care, because all this
litigation here, all these cases evolve, because settlements went awry,
it’s true. All these cases represent
problems with settlements, and some of the cases
involve ambiguities where people have to testify
as to what the parties intended. Now, what was that
clause supposed to mean? What did the parties really mean
by the use of the word restoration, back pay, priority consideration, confidentiality? Well, with luck, if you followed
Sarah’s advice you spell it out, but sometimes even with the
best of draftsmanship through 5 or 6 drafts there’s still going
to be ambiguities, it’s just the
nature of language. And then a year or two years
later you’re in litigation and who is going to be a witness as to what that
language really meant, what were the discussions? You are, congratulations witnesses
and it’s happened to me. And how do you
remember this stuff? Well, if you’re me I can’t remember stuff that
happened last week, that’s a function of age, so… or maybe basic
intelligence or lack of it, but what I make up for is the fact that I
dictate all these memos, and I keep them in my files for
the statutory limitation period for a malpractice suit, but that’s not why I do it. I’m not afraid of my clients. They don’t like me much, but
they don’t sue me either. So, I do it because of the
possibility of later litigation concerning the
meaning of settlement knowing that I maybe a witness in having to describe what
happened in my interchange with opposing counsel. And I encourage you
also to keep a record of what’s going on in
these settlements, so you or someone like you,
a supervisor, a coworker, when you might go on
to another agency and somebody has to
unravel this mess you need a record,
so that they can do that. Just to add a couple
of things onto what Peter said in terms of…
in terms of our… he named a few of them, but you really do
need to watch those. There are plenty of them out
there such as priority referral, return to duty,
basic pay, back pay; back pay is actually a big one, because people misunderstand
how broad back pay can be and that its individualized to
the person’s work environment. Do they earn over time, do they normally get cash awards
if they get such a rating? These kinds of things, so that can really be a big one;
pay retention is another one and moving on to
ambiguous terms, I thought I would
describe for you folks, the Flores versus USPS case
that’s mentioned here. You probably have
noticed already we’re trying to cite
recent Board cases. For those of you who
have been watching we have the new Board in place, and they are, at least,
somewhat more employee-friendly and are looking deeply
at these cases. So, I’m trying to… trying to educate you
a little bit about how the new Board is
approaching things, but I think even the old Board
would have looked… and when I say old Board I
mean the McPhee Board would have looked at
the Flores case. In that case, the agency reached an
agreement with the appellant and it’s very, very specific. They had removed her
from an EAS-19 manager customer services position. They then decided that they
would bring her back to work under a demotion. And they were very specific
as to the job ID number, the type of job it was,
the duty station, where she was to report, what day she would have off, and that her hours were
8 AM to 5 PM, and the effective date of that. However, when the employee
came back to work they actually had put her in a
part-time flexible position, whereas, before she had worked
in a full-time position. So, of course, that
became the ambiguous term. Nobody had defined whether or not it would be
a full-time position, but, of course, the appellant
having left a full-time position and being given days off and a
tour of duty figured that that was inherent
in the agreement that she was going to come
back to work full-time. So, that, of course, is
subject to interpretation and as we discussed earlier
maybe some parol evidence and we’re going to
discuss later on too. Conflicting terms – just
one note about that; if you have ultra specific
terms in an agreement and then you have some
general language, which might conflict with that, you have to be careful
because the specific language may take over these
more vague terms that you have in a
Settlement Agreement. And I think in the
Saunders case it was about whether or not he had
completed an alcohol program and whether or not
some other violation would then cause him
to be removed. So, you may want to read
some of these cases. Here’s just some hints about… and let’s see is this
you Peter, sorry. -You go ahead Sarah.
-No, that’s you. Alright. Avoiding Ambiguity –
keep your language plain, define your terms
like Sarah said. If you’re going to use
terms of art, define them so that somebody
else such as a judge who looks at the
Settlement Agreement having to figure out
what it means can do so without having to resort to
testimony as to what it means. Ladies and gentlemen
there’s… for the agencies, there is only truly
one important cause in most agreements. What’s the agency buying
in a Settlement Agreement, what are they paying for? They’re paying eternal
peace and comfort as to that particular appellant. They are buying
their peace. They don’t want to be bothered
anymore with that case or perhaps that appellant. So, the most important cause
in most settlement agreements, particularly where people
will not be returning to your agency’s workforce
is the global release. And what I find in
dealing with agencies, when I’m dealing with
a contract lawyer, some of the bank regulatory
agencies for example, they’re very precise
and very careful and these global releases go on
for three or four paragraphs. There are wonders
to behold. My client can’t possibly
do anything ever nor can his heirs or assigns or anybody else in
the United States against that
particular agency. They are things of beauty,
and yet I see other releases, which are not inclusive,
they are not comprehensive, and if my clients
choose to do so and I wouldn’t encourage
them to do so, because I think it
would be in bad faith, can immediately go out
and file some other case, because the global release was
not carefully enough structured. Now, to put together a
real good global release takes a lot of
time and effort. You have to think of
everything that could go wrong and then you think again,
and you think again. Now, there are only so many
things that can go wrong, and so many people can be sued
and so many causes of action. So, what I encourage you
to do within your offices to get the best and
brightest of the talent, all of them are here right
now, I can see you, I know it… I know
because you’re here, I want you to back to
your offices later on and practice drafting
global releases, and do it until they shine. And then show it
to somebody else and let them point out
the defects to you and then send them some of the
higher level counsel here at OPM and really do a job on
these global releases, because I see all different
types in settlement agreements. I’m not going to draft
your global release for you, unless you hire me
and my address is here, but I do encourage
you to work on that, because that’s how you
avoid the future litigation if your agreement is
otherwise well crafted, you spend a lot of time
on that global release. And we do have a couple of
samples in your package, I don’t if anyone has had
a chance to look at it. I am not saying other
agencies may not have ones that are better,
but there are… you can see a sample of one, at least, in our agency
that served very well. Okay, alright, continuing on
about what to avoid and include Broad, Poorly
Defined Terms and now Peter just discussed
broad waivers and releases, those are different than
what I’m talking about here. Broad, Poorly Defined
Terms are those that say, for example, we have a
supervisory employee who was suspended for some,
sort of, misconduct or performance problem related
to his supervisory duties. So, the agency kindly comes up
with the idea that we will… we will train him. So, the agreement says
for the next three years the appellant will
get training on how to become a
stellar supervisor, end of the paragraph. That is going to
go on forever. What would be recommended
by me, at least, is to come up with
the specific courses, the times when those
courses will be offered, whether or not the employee
goes on official time, which normally
would be the case, but define in the agreement
all of those things as well as an ending date. Three years,
I think, is too long; usually a year or two is
sufficient for anything, but try to define those
terms as clearly as you can. And if by chance the
appellant fails any of them, do you want to
let him go back, those kinds of things should
all go in the agreement. I avoid you… I recommend rather that
you avoid terms such as, we’re going to treat
each other with respect, or we’re going to
do our best efforts to help you get something. Those terms only
ask for trouble. In front of the EEOC they just ignore the
respect kinds of terms, but the Board
may or may not. The Board might say, well,
you figure out what you meant and you make sure
that you do it, but the other term
that I mentioned we’re going to take
our best efforts. That’s come up
in various cases such as when the agency says
it’s going to help the employee get disability
retirement again, speaking of an
OPM type of issue, and then they turn around
and send all the documents about the employee’s removal that had nothing to do
with inability to perform or medical issue or whatever might actually help the employee
get disability retirement, they’ve sent things that
will hurt the employee. And those have been
breached in that respect because again if you put that effort in
there that… those words, best effort, it might
apply to the whole agreement or even if it’s only one
term it can be troublesome. Waiving future EEO rights, I think most people are
getting this right anymore, but basically it’s one of those
things that’s a clear can’t do. No matter what kind of
an agreement you have, you cannot waive
future EEO rights. You can waive them up until the effective date of that
agreement, but not future ones. And one sample of this, I did
have to give you an EEO case, it concerned a last
chance agreement where the employee was
suspended for a period of time for the current offense and if he or she then
breached the agreement, then the removal would be
enforced and would be active. So, the agency put in that
they’re waiving not only any rights about the suspension,
but also any future things. Now you can do that
with Board rights. You can waive Board rights
with some limitations, which we will talk
late… about later on, but you cannot waive
the future EEO rights. So the EEOC, once it had a look at that
agreement said, no, sorry, agency, we’re remanding
this case back to you to determine
whether or not there was discrimination in
the removal of this employee. The agencies… once in a while, you’ll
have a settlement agreement that will call for the appellant
to do something in the future, that something in the future
might be to resign or retire. For example the settlement
agreement is today, the person will be kept
on administrative leave where they’ve already
been for three years, they’ll stay on administrative
leave for another few months until, for example,
they become 62 and qualify for
optional retirement. The settlement
agreement signed today, you cannot waive
future EEO rights. So what you do to
protect yourself between the time the
settlement agreement is signed and the date the person
goes off the rolls? What you have them do is
sign a supplemental agreement on the date they
check out of the agency and you include this
agreement to do so within your
settlement agreement that on the day
they check out they will sign
another agreement, which essentially renews
the global release including any EEO problem, so you don’t have a
situation where the person settles with you today, they are going to
do absolutely nothing except for example, stay
on administrative leave but because you cannot
waive future EEO rights, they start filing EEO charges
with a counselor or a complaint during the period that the
settlement is about divest. So you see what
the problem is here and what you do is you catch
up to the waiver the later on when the person is actually
leaving the agency, and good agency
counsel will do this. And it sounds a little strange
to the appellant’s counsel if they’ve never gone
through this before, but once you understand
this business about the waiver of future EEO
rights, it makes perfect sense. Okay, oops, sorry. Okay, the next one, obviously we’re introducing the
new subject of oral agreements. To be plain my advice
is don’t do them. I’m sure some agency counsel
or ER people can name times when they’ve done so and
they worked perfectly fine, but for the most part
they are trouble, and everyone should
try to avoid these. The first case
that I cite here, we’re going to talk about
that one in a moment, so I am going to
hold on to that one. The second one
is interesting, and again this is with the new MSPB Chairman
and her two members, it was taken under them. This was an appellant
pro se at a hearing and the agency and the appellant
outlined an oral agreement in front of the judge,
which is allowable. The MSPB will accept
oral agreements and they are enforceable in most cases again with
some of the problems that we’ve
mentioned earlier aside. The appellant was never
asked at the hearing whether or not she was
going to withdraw her case, so, that was one trouble
with the case is that in fact it had not erased
the jurisdiction of the Board because it was not
entered into the record, but moreover, sorry,
you are not hearing us? Wow, when did that happen? Should we just go through
the whole thing again or what? Yeah, okay we are going
to start over now. The second problem was the
agency as it often does, wants to follow up with
a written agreement, but in the record
they did not say that this oral agreement
is not effective until it is also
signed by all parties. The agency counsel then
sent the appellant, the written agreement,
and of course then they added in a
bunch of more stuff including all of the
lovely waivers and that… that we all like
to have in our agreements, and none of that was
on the oral record. So that caused a problem in terms of that
settlement agreement because the agency
should always want a written settlement agreement with the waivers and the
specifics of the terms. You may know at a hearing what
your general ideas are about what you want to do with
the appellant, you know, what’s the resignation, what are you going to
do with the records that you may want to clean
up for the appellant. What about references? What about waivers? You better have either a
full sample there with you so the entire thing is
read into the record, but the better advice is to
always say it on the record that there is no agreement
until it is signed, and that’s exactly what the fed
circuit case of Tiburzi covered. And my advice is
never, ever, ever, enter into an
oral agreement. You can’t draft it well. It’s going to be ambiguous and here is what happens
in practice half the time. The party starts
talking about the terms and then they start talking
about what the terms mean while they are talking
about the terms. And so instead of entering an oral agreement
into the record, for example, what they are doing is negotiating an oral
agreement as they speak and it makes absolutely no sense
when you read the transcript. So, I teach this stuff with
other people from time to time and one of the people I teach
with is excellent lawyer who does a lot of litigation
and we all teach the same thing, we could almost chant it, no oral agreements
ever never. So, I see a Board case,
that’s this fellow’s case, and he is talking about the
promise within oral agreement, and his name is on the case
because the Board lists counsel, they don’t list the judges but they do show
who the counsel are. So I asked him, “You know,
we teach this stuff, how could you
possibly do this?” And of course there
was an explanation, but there really
is no explanation. You just shouldn’t allow it
to happen and there is no way that you should
allow an MSPB Judge or a waiver arbitrator
or an EEOC judge to boo you into
an oral agreement. Now with EEOC as you know, agreements have
to be in writing, but the Board
doesn’t require that. You could have an oral agreement that’s
entered on to the record. But I think you would have
to have your head examined to do it, and if the judge wants it done
and you don’t want it done, it’s not going to happen people,
they can’t put you in jail. Now if you are before United
States District Court Judge and they start
summoning the marshal, you think again, but the Board doesn’t have a
holding pen for lawyers like me, so they can’t do that
and they can’t disbar me, because I am not licensed
before the Board, I am licensed by a state, so I have no fear and
you should neither. Don’t let them cow you into
an oral settlement agreement, it’s just bad business. Just one added remark
there on the EEOC, if by chance you
are at the hearing and there is a
court reporter there that’s the only
exception to that, the EEOC will take
an oral agreement under such circumstances, but nonetheless no
matter where you are as Peter just said you
don’t want to do that. We are approaching 2:20, which is when we are going
to allow some questions, Jason from either of
the live audience or those of you
watching from afar. I hope they are live. They don’t look live
so far, alright. Okay. We do have quite a few questions
coming from the webcast. So, I will ask the
first one here. In reference to
slide number nine, could you provide a
couple of examples of terms of art that
are to be avoided? Well, yes, I think we
mentioned a couple, but the terms of art are things
like priority consideration, back-pay, pay-retention, priority referrals, front pay, although
that’s not a usual term in front of a Board case, anything that typically has
a specific meaning in law, rule or regulation or maybe even your
agency has it defined in some sort of
directive that you have. Well, I hope that helps. If you read the
Pope decision, which I think is cited
on that particular slide that will help you understand what a term of art is
and how it can impact the interpretation of
your settlement agreement. Let me give
you an example. Let’s say the agency
is the patent office, Patent and Trademark
Office down in Alexandria where they have lots and lots
and lots of patent examiners. These patent examiners go through a long
course of training, advancement in grade where they eventually
achieve the ability to sign off on a patent. That becomes a legally
binding document and that process is known
as signatory authority and anybody who deals
with patent examiners and the patent
office knows that. So let’s say the
agreement is to place the person
into a position where they have
signatory authority or signature authority, it makes perfect sense to the patent examiner
whose case it is, makes perfect sense to the people who run
to the patent office. It makes absolutely
no sense. It has no meaning for
anybody else in the world. So in order to avoid
having people puzzle over what that means
some time later you explain it
in the agreement. Think of your own agencies
and specialized work that goes on in
your agencies the use of
acronyms and such, things that you
understand well but others reading the
agreement would not, that’s a good time to define
what those terms mean. Unless there’s a live
audience question, I can keep rolling these
webcast questions out. I guess a point
of clarification, we have a question from
one of the webcast viewers, can an agency offer a
settlement agreement prior to the issuance
of a proposal notice i.e. after the
investigation is complete, but before the
proposal issue… before the proposal
notice has been written? Sure, and the
answer is yes. The agency can
offer an agreement. The most frequent agreement
that’s offered by an agency either before of or
after the proposal, if the agency is telling
an employee that they are having problems on the job and they can
avoid a lot of disciplinary problems
along the way, the most frequent type of
settlement agreement is what? Well, I can wait
here for a while. Anybody? I mean time is
nothing you know since I am not being paid,
time is not even money. It’s a last
chance agreement. They’re used all the time. Can you use a last chance
agreement before a proposal? Sure you can. You know, if you
are serious about taking action
against an employee, one of the things
you may want to avoid is stigmatizing the employee
with a proposed action. You know, that really
does shock employees, they have to go get lawyers
like me and so forth. So you can offer them
that type of thing. There is nothing
that requires you to wait till an
action is proposed before offering some
type of resolution, it happens all the time. Agreed, and that’s where the
good cause comes into play. If you have an
investigation and you have the
evidence at that point if you going to propose the
employee’s removal anywhere, anyway you may be… want to
share some of that evidence with him or her so that
they understand the severity of the conduct or
even if they don’t agree they understand they
are in deep trouble and then they call Peter,
who might get paid by them. Another question, at what point would it
be appropriate to submit a settlement
agreement to the Board for purposes of enforcement, can you give an example of
when you should do that? Yeah, submit it when you
want the case to come to end because the
settlement agreement when it’s been negotiated means nothing to the
administrative judge unless administrative
judge is told about it. And if the administrative
judge is not asked to incorporate the
settlement agreement into the record for
purposes of enforcement, once the administrative judge realizes the case
has been settled, then confirms
that with parties, the judge will issue an
initial decision saying that the
case is dismissed, sometimes with prejudice, without it… it
really doesn’t matter, as settled that’s
the end of the case. So the point at which you want
it entered into the record is the point at which you
want the case to be shutdown that’s the whole
point of the settlement. So once you conclude
the settlement that is to go into the record,
for purpose of enforcement you immediately
send it to the judge and the only question is, who
sends it to the judge anyway should I do it,
should agency counsel? Who cares? It gets to the judge and once the judge sees the
signatures on that agreement, the initial decision is
issued saying that the agreement is
lawful on its face, it has been reached voluntarily
by the parties, and by the way in that agreement you should
state that the parties stipulate that it’s been
reached voluntarily and then the
judge will state that the agreement
is accepted into the record for
purposes of enforcement and the case is
dismissed to settle, that’s the initial decision. And there have been some
causal decisions where the parties call the judge
and tell him or her, we settled the case and the judge has hastenly
send out the dismissal order before he or she actually has
a signed settlement in hand. Those cases go back because there was no agreement to
be entered into the record and so there was
no settlement. Because often, again once you start
talking about all the waivers and the other things that
the agency typically wants or maybe things that
the appellant wants that weren’t
discussed verbally, a settlement you
think you have isn’t a settlement until it is
signed at least per our advice. I think you can do one more
question before the break, all right. We have a webcaster
here that wonders, if you can discuss
settlement agreements or how can you have
the ADR process correlate with
settlement agreements? I guess some agencies arguably
are using ADR a lot more, how does that interact with
proposing a settlement agreement and can that interfere
with that process? Well, no I wouldn’t think it would interfere
with the process, I think it would
facilitate the process. Some agencies, for example, the Veterans
Administration, their Office of Resolution Management, anybody here from VA, really, I guess they are
tired of me and should be, the VA has the Office
of Resolution Management, which is very active in encouraging mediation
and settlement opportunities, right along the line from the point of
counseling up to the point of issuing the
final agency decision which might go to OFO
or might go in to court or given the opportunity
go to an EEOC judge. Veterans Administration
is very active in trying to settle cases before the Merit
Systems Protection Board and the point in the ADR whether it’s VA or any other
organization that uses it, is to produce a settlement. I was at ADR yesterday with the Merit Systems
Protection Board few blocks from
here up on M Street with one of their senior
attorney serving as a mediator and I think the case
is going to be settled. And I’ve got a
case tomorrow that’s going to
go into mediation, I don’t know if it’s going
to be settled or not, I’ll know tomorrow,
talk to me then, but the whole point is, is to
bring cases to a conclusion. So the relationship is
direct, it’s immediate. That’s why you go to ADR to
get a settlement, not just… it’s not just a
therapeutic session, although some of them
might seem to be that way. Probably your
choice of clients, but anyway I have seen
some ADR shops feel that because of the conversations
are ‘confidential’ that they should not
put anything in writing that that it should be
just an oral agreement. I agree with Peter,
however, if you are going to
go to the ADR session and you want to
reach a resolution then it should be in writing. Everybody knows
what you agreed to and you have some mechanism to
look back and remind each other as well as potentially
enforce that agreement later on. And Jason, do you
want to have one more or do want allow
the break now? We can break ten minutes. Okay, ten minute
break everyone, and we’ll start on time
whether or not you are back. Okay, thank you. Alright what to include,
what to avoid in these settlement
agreements? We have already talked about the
most important thing for you, which is the waiver of
any types of claims in the future
against the agency, clarity of language, and then we have the Older
Workers Benefit Protection Act language which I think most of
you are probably familiar with, do we have that in
our materials Sarah? We do have it in both of the sample
agreements that I gave you and actually I did
want to just mention that this case is one where
there was an oral agreement and the Board said that it
was not enforceable agreement because under the Older Workers
Benefit Protection Act and the ADEA, the agreements must
be in writing. Now the… some agencies
tend to put this Older Workers Benefit
Protection Act language, that’s where the person has been
instructed to talk to counsel where they’ve had 21 days
to consider the settlement and where they have in
the future seven days to withdraw from
the settlement in every single
settlement agreement, I have never quite
figured that out why would they want to
do that because the purpose of the waiver
is to deal with people actually separating
from the agency by resignation or retirement. That’s what I view the purpose
of the waiver language to be. Now what happens if you don’t
put the waiver language in? Does that mean that
the agreement is void? No, all that it means is
the person can bring an age discrimination complaint
against the agency, that’s all it means. The agreement is
otherwise valid. Courts have…

Robin Kshlerin