CRAs May Not Be As Clean As You Think
In this week’s Manager Matters we will look at something that managers often encounter during the course of a long federal career in resolving employee complaints and appeals. A clean record agreement (CRA) is a negotiated settlement agreement (NSA) common in the federal government as a tool that allows an agency to obligate itself to change, remove, or protect potentially negative information about an employee in exchange for a resolution to said individual’s employment-related claims against the agency. A new U.S. Merit Systems Protection Board (MSPB) report, Clean Record Settlement Agreements and the Law, focuses on how the precise wording of CRAs and the facts and circumstances specific to each CRA can be the difference between a resolved claim and the resumption of litigation. CRAs are valuable tools in federal employment conflict resolution, as they allow for the settlement of employment issues with neither side, essentially, admitting fault. As MSPB Chairman Susan Tsui Grundmann explains, “Clean record agreements are an invaluable tool for resolving conflicts, especially when the parties cannot agree on what occurred but can agree on how to move forward.” Agencies like CRAs because they allow for the quick end to what can be very expensive litigation, while federal employees are disposed towards CRAs because of the confidentiality obligations that the agency accepts regarding the end of the employment.
However, the protections that employees trust they are getting in a CRA are often not as iron-clad as they believe. Unless employees insist on language that narrows the agency’s obligations under a CRA, the MSPB, if needed to interpret the agreement, can oftentimes read agency requirements very broadly regarding both cleaning and discussing the employee’s record. While a CRA contains obligations for an agency to protect or remove employment information, the agreements do not bind actors who are not party to the agreement. This means that the Office of Personnel Management (OPM), local law enforcement (if involved), and other third-party actors can reveal the information that the CRA bars the agency from disclosing. In addition, a CRA cannot authorize the individual who signed the agreement to withhold that information or intentionally deceive another federal agency about the existence of the CRA. In the MSPB report there is discussion of several cases in which this withholding or deception can lead to removal and/or debarment from federal employment.
The dissonance between what many federal employees believe to be true about CRAs and the reality of the situations can have serious consequences. If the employee believes there to be a material breach of the agreement by the agency (when an agency fails to meet its obligation to clean the record), whether true or not, both sides may find themselves with mounting expenses, re-litigating a matter that both had believed settled. The importance of understanding the intricacies of CRAs is clear: both parties involved need to make sure that the agreement language is precise and fully understood before it goes into effect. While hopefully you will never have to go through the process of negotiating a CRA, it is likely that throughout the course of your federal career in management you will encounter those who have. The more you know about this topic may save you and your agency stress, time, and money in the future.
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