WASHINGTON, D.C. (FEDweek) — The chairman of the House Oversight and Government Reform Committee has challenged agencies’ use of settlements to resolve federal workplace disputes, suggesting that in many cases they settle “despite a high likelihood of government success on the merits” if litigated to a conclusion.
In a letter to OPM, Rep. James Comer, R-Ky., said settlements raise concerns including “structural incentives for adjudicators that may favor informal resolution over taxpayer interests; and the incentivization of frivolous claims that produces a chilling effect on managers discipling employees when warranted.”
“Where cases do proceed to adjudication, agencies frequently prevail. For example, in adverse action cases that are not dismissed at the MSPB, agencies opt to settle 68% of the time. Among cases that proceed to decision, more than 80% of agency adverse action decisions are upheld, suggesting that agencies are frequently and inexplicably settling cases with taxpayer dollars that they would otherwise win,” he wrote.
Reliance on settlements further “forecloses the development of beneficial legal precedent, masks patterns of prohibited personnel practices, and allows agencies to manage recurring legal liability without addressing the underlying misconduct,” he wrote.
He asked for information on settlements since 2019 including the issues involved, the value of monetary awards, obligations placed on agencies, and more.
Michael Fallings, managing partner at the Tully Rinckey PLLC law firm, said the letter “is based on an incorrect premise that agencies are biased towards settlements. Rather, settlement decisions are evaluated for each case based on the risk assessment of the agency. In addition, agencies consider whether settlements will prevent additional government expenses through continued litigation.”
“Most government employees are not filing claims with the intent to obtain some monetary benefit. Instead, most government employees file claims when they feel aggrieved and often desire a non-monetary remedy to resolve their claim,” he added.
The agencies involved with federal workplace disputes have had in place for decades mediation and other types of alternative dispute resolution programs that may lead to settlements. The MSPB for example, cites its mediation program as a way to help parties “identify issues and barriers to agreement that will aid in resolving their disputes and settling the appeal quickly, economically, and to the benefit of all concerned.”
Similarly, the EEOC touts alternative dispute resolution as “approaches to resolve conflict which avoid the cost, delay, and unpredictability of the traditional adjudicatory processes while at the same time improving workplace communication and morale.” And the Office of Special Counsel says its mediation program gives parties have “a guided forum within which to understand each other’s needs and concerns and explore creative options for settlement beyond the formal remedies OSC can obtain through litigation.”
The FLRA general counsel’s office last year dropped an informal channel to resolve certain disputes over negotiability and arbitrators’ awards, although saying other components “will continue to use ADR when appropriate.”
