In November 2022, the U.S. Office of Personnel Management (OPM) released a new final rule that rescinded several labor regulations implemented by former President Donald Trump’s administration.
The new rules represent a big victory for federal employees across the country. Thanks to this new rule, federal employees can once again negotiate clean record agreements with federal agencies.
What are Clean Record Agreements?
A clean record agreement (CRA) is a legal settlement between a federal agency and one or more of its employees.
In a CRA, the agency agrees to remove negative disciplinary or performance-related information from an employee’s record. In return, the employee agrees to withdraw their claims against the agency, resolving the lawsuit between the parties.
CRAs benefit agencies and employees alike. Agencies can save countless hours and thousands of dollars by settling a case instead of litigating it. And CRAs give employees the opportunity to preserve their clean record and apply for future positions without any black marks on their reputation.
Why Is OPM’s New Rule Important?
To understand the impact of OPM’s new rule, it’s worth reviewing the recent history surrounding CRAs.
President Trump’s Ban on CRAs in 2018
Up until 2017, CRAs served as a key part of the agency attorney’s settlement toolbox. The majority of attorneys for federal agencies and employees believed CRAs were a valuable way to settle employment-related lawsuits.
However, some observers argued that CRAs allowed ne’er do well employees to jump from agency to agency without ever being held accountable for their actions. The Trump Administration happened to agree with the latter view, so it decided to forbid CRAs entirely.
In May 2018, then-President Trump signed the now-revoked Executive Order (EO) 13839. The purported goal of this EO was to simplify the process of employee discipline.
In an attempt to achieve these goals, the EO included provisions that cut down the amount of time employees had to respond to allegations of misconduct. It also removed the requirement for agencies to conduct progressive discipline against employees and banned CRAs in virtually all situations.
Implementation and Effects of the Ban on CRAs
One unique aspect of the administrative rule process is that EOs do not instantly create new rules for the federal workforce. Instead, OPM has to issue regulations that ratify the provisions of an EO. This process can take months or even years.
In the case of EO 13839, it took OPM more than two years to issue regulations that ratified the order’s provisions. This means the actual prohibition on CRAs did not come into effect until November 2020.
Even though the ban on CRAs was relatively short, it had powerful negative effects. OPM itself found that the ban “hamper[ed] agencies’ ability to resolve complaints . . . with minimal costs to the agency.” Without CRAs, agencies were not able to settle as many cases.
This, in turn, contributed to the workload of administrative judges and the backlog of cases before groups like the Merit Systems Protection Board (MSPB). Similarly, employees were left without any way to protect their record.
President Biden’s Revocation of the CRA Ban
Right after he took office in January 2021, President Biden signed another EO revoking EO 13839. However, the new EO cannot instantly revoke a prior EO. Instead, OPM must propose and finalize new rules that reverse the rules from the prior EO. This process is set to finish on December 10, 2022.
What the New Rule Means for Federal Employees
Now that the CRA ban has been lifted, employees with outstanding lawsuits have more power to resolve their complaints.
Yet employees still need quality legal counsel to represent their interests in lawsuits against federal agencies. It has never been a better time to seek out an experienced federal employment attorney.
Protect Your Rights with Pines Federal
Every one of the attorneys at Pines Federal cares deeply for the rights and careers of public servants. In addition, we have over 50 years of collective experience taking on agencies and holding them accountable for breaking the law.
Thanks to our efforts, countless clients have obtained incredible case results. If you or a loved one need quality federal employment representation, then look no further.