By Deryn Sumner
So after months (okay, or maybe hours) of negotiation, you’ve agreed on terms and reached a settlement in principle to resolve an EEO complaint? Great! Now comes the next hurdle: reducing the terms to writing and getting everyone to sign off on the darn thing so the Administrative Judge will dismiss the case and you can get it off of your desk. Here are some tips to make this next stage as pain-free as possible.
First, if you represent an agency, you likely already have boilerplate language it uses in every settlement agreement. I like to have a draft of that boilerplate agreement already prepared with the case caption on top and as many blanks filled in besides the actual terms before going into a mediation, settlement conference, or even the hearing. Remember, the vast majority of cases settle instead of being decided on the merits so there’s a good chance such preparation will come in handy at some point in the litigation. While you work on drafting the language for the specific terms agreed upon, give a copy of an agreement with the rest of the language to the complainant and his or her representative to review. It saves everyone time and helps you focus on how best to draft the language of the terms, while someone else is explaining what “OWBPA” language is the complainant. (Speaking of the OWBPA, it’s a good practice to put it in every agreement where the complainant is 40 years old or older, regardless of whether age has been raised as a basis). [Editor’s Note: That’s the “Older Workers Benefit Protection Act” for you newbie’s out there. That law is based on the assumption that if you are 40 years old or older, you don’t think too fast. ]
Include a reference to the requirements at 29 C.F.R. 1614.504 in the agreement itself so the complainant knows what to do if there’s a problem with compliance. To make everyone’s lives a little easier,
To avoid problems with compliance, think through each of the things both parties are agreeing to do under the settlement agreement with “who, what, when, and how” as your guide. To whom does the Complainant need to submit documentation of attorneys’ fees? What exactly is each party agreeing to do? (Neutral references can mean many different things, and don’t forget to require the Complainant to actually withdraw his or her complaint as a term). When is the payment going to be made? How should the Agency distribute any payments between the Complainant and his or her attorney? If someone not involved in the negotiations were to pick up this agreement and make sure everything was completed, how would they know that was the case? Remember that everything the parties intend to happen should be contained within the four corners of the agreement and should not require looking at any other documents to determine the intent of the parties. If there are any outside documents included as part of the terms, such as a written letter of reference or an SF-50, reference it and include it as an attachment to the agreement.
And finally, I’m sure none of our esteemed FELTG newsletter recipients would make such a mistake, but make sure the agreement actually has consideration for the Complainant in exchange for withdrawing his or her claims. No, agreeing to treat employees with “respect” or giving them an accommodation they are otherwise entitled to is not valid consideration. It’s something every employee is otherwise entitled to receive in the workplace. Sumner@FELTG.com