Clean record agreements might be possible even before rule change
By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau
IN FOCUS: Clean record agreements could once again be possible now that Biden EO 14003 officially revoked EO 13839, but "there is some ambiguity" over whether the Office of Personnel Management must first issue new regulations, Federal Practice Group partner Debra D'Agostino said during the LRP webinar, Federal Workplace Policies Under President Biden: What to Expect, How to Prepare.
OPM regulations, which became effective Nov. 2020, codified EO 13839's ban on changing personnel records in exchange for settlement complaints or disputes.Even if an EO suspends enforcement of regulations, changes to the text of the regulations requires OPM to go through the notice and comment process. The Biden EO suspends enforcement of regulations implemented under 13839 and instructs OPM to go through the rulemaking process to roll back the related rules.
Until more specific guidance is released, some agencies are saying "yes to clean record agreements while others are saying hold on -- we need to wait for OPM. So, how this goes might be different from agency to agency," she said.
Agencies also may want to consider the enforceability of such agreements upon review, D'Agostino said. One Merit Systems Protection Board administrative judge told her that clean record agreements are subject to enforcement because the Biden EO revokes the Trump EOs and suspends enforcing the correlating regulations.
Equal Employment Opportunity Commission regulations and procedures "function a little differently" when enforcing settlements, D'Agostino said "EEOC AJs have been all along willing to look the other way and allow clean records if both parties were willing. This will be even more so now that the clean records are green lighted."
D'Agostino also suspects "clean records can be done at a lower level, where management can resolve the issue and move on" by engaging in informal agreements, such as changing the performance rating from a 3 to a 4 or amending proposed discipline.
OPM did not immediately respond to a request for comment.
Employment law expert Robert Erbe believes that parties can pursue clean record agreements right now because the Biden EO directs agencies to stop implementing the rescinded executive orders along with any corresponding regulations issued by the Office of Personnel Management.
As the head of the Executive Branch, Biden "can tell heads of agencies what laws to enforce or how to enforce them. Here, he is telling them to suspend enforcement of any action that was taken or would be taken as a result of the EO or final rule," and told OPM to issue a proposed rule to rescind the final rule, he noted. This means "there is no longer a prohibition on clean record settlements or modifying an SF 50 through a settlement," he explained.
This is "probably the biggest change" in the EO because not being able to offer clean records in exchange for dropping claims "was causing major havoc in settling cases." Erbe said. Allowing clean record agreements "will help both agencies, employees, and the MSPB in suspension of the provision which prevented agencies from entering into settlement agreements to alter official personnel records."
Kalijarvi, Chuzi, Newman and Fitch partner Robert DePriest said that he hopes agencies will not wait to for the regulations to change before allowing clean records agreements again, noting that agencies like them as much as employees and preventing them resulted in more litigation.
Even if hesitant because of existing regulations, "at the very least," he encouraged agencies "to do clean record that would go into effect as soon as the regulation is officially rescinded."
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