Biden Restores Clean Record Settlements Agreements

Federal Employee Clean Record Settlements are Back

As you may know, former President Trump and his appointees took several very strong anti-employee and anti-labor actions in the federal sector during his 4 years in office. One action restricted federal employees’ abilities to get a clean record, which means their employment files would show a flawed reprimand, unfair termination, or biased performance evaluation, for instance, which affected those employees’ careers as a result.

We believe this action changed how federal litigation operated for these employees.

Prior to this action under former President Trump, agencies could adjust a federal employee’s file to correct unfair disciplinary actions rather than have the employee undergo time-consuming and costly protracted litigation, which became common under Trump. As such, a clean record allowed federal employees to move forward without worrying about the fate of their future job applications.

Without a clean record, these employees would have to “check the box” confirming that they have been terminated, which would lower their chances of getting hired.

If these employees were to apply for jobs in the federal sector again, they would specifically experience issues with OF-306, which asks, “during the last 5 (five) years, have you been fired from any job for any reason, did you quit after being told that you would be fired, did you leave any job by mutual agreement because of specific problems, or were you debarred from Federal employment by the Office of Personnel Management or any other Federal agency? If "yes," use item 16 to provide the date, an explanation of the problem, the reason for leaving, and the employer's name and address.”

Obtaining a Clean Record Settlement

Needless to say, if a person wants to avoid protracted litigation costs or feels that it would be difficult to obtain a clean record settlement, they could hire an attorney to help them achieve a settlement agreement by giving up their right to appeal in return for NOT having to check “yes” in that box (or answer similarly in any other similar job application).

Through Executive Order (EO) 13839, the Trump administration made it illegal to enter into this type of settlement. By contrast, however, the Biden Administration has sought to turn back the clock and revive clean record agreements. President Biden attempted to do this by enacting EO 14003, which officially revoked Trump’s EO 13839, but "there is some ambiguity" on whether the Office of Personnel Management (OPM) must issue new regulations first before EO 14003 can be effective.

OPM regulations became effective November 2020 and codified EO 13839's changes to federal employee records in exchange for settlement complaints or disputes. However, even if Biden’s EO suspends enforcement of these regulations, OPM must still undergo the notice and comment process in order to modify Trump’s EO 13839.

In the meantime, the Biden EO suspends the enforcement of regulations implemented under 13839 and instructs OPM to go through the rulemaking process to roll back the related rules. The issue is that until more specific guidance is released, some federal agencies are saying "yes” to clean record agreements while others are refusing to enter into these agreements until OPM goes through the process.

So, this process differs from agency to agency, according to our attorneys’ experience with FEMA and DOD, as some agencies oppose entering into clean record settlement agreements while others have no issues whatsoever.

Questions? Come to Us for Answers.

If you are in a position where you’re deciding whether or not to resign for a clean record, reach out to our lawyers at Pines Federal online or by calling (888) 898-9902 for guidance through the latest updates on this rule as it relates to your Agency. Consult with our team for assistance with your clean record settlement or litigation needs today!

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