The Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002, also known as the No FEAR Act, 5 USC 2301 note, requires agencies to send out annual reports to Congress listing, among other things, the number of cases in which the agency is alleged to have violated the any of the covered discrimination or whistleblower statutes, the disposition of each of the cases, the total of all monetary awards charged against the agency from the cases, and the number of agency employees disciplined for discrimination and retaliation.

Proposed Office of Personnel Management regulations to implement this provision require a one-time submission of five years of historical data, as well as requiring a detailed description of the agencies’ policies for taking disciplinary actions against employees who commit violations of those laws. OPM is considering expanding the range of disciplinary actions to include unwritten actions, such as oral warnings, which would be a positive step. See also the EEOC regulations at 29 CFR Part 1614, Subpart G., which covers agencies posting certain information on their public web sites.

Federal agencies which lose judgments, awards, or compromise settlements in discrimination and whistleblower cases in the courts are required to reimburse the general federal Judgment Fund. While this provision does not have any direct impact on administrative decisions or settlements, it may discourage agencies from settling court cases as they have free legal representation provided by the Justice Department.

The No FEAR Act contains an extension for the federal agencies, whose budgets may be adversely affected by reimbursing the Treasury Department, if the amount of the reimbursement is large relative to the annual appropriations, to avoid adverse effects on the workforce and the agency mission. The Act specifically mentions avoiding RIFS, furloughs, other reductions in compensation or benefits, or an adverse effect on the mission of the agency.

Agencies have to provide enhanced notification to their employees about all applicable discrimination and whistleblower protection laws, similar to that already required under the Whistleblower Protection Act. The GAO also is required to study the effects of eliminating the requirement that federal employees exhaust administrative remedies within their agencies before filing complaints with the EEOC and to study the methods that could be used for ascertaining the personnel and administrative costs incurred by the Justice Department in defending discrimination and whistleblower cases.

While this legislation is obviously well intentioned, it appears to have had little or no impact on administrative cases. One new approach would be to charge back agencies for the EEOC administrative judges’ salaries as is now done with court reporters. This would level the playing field and encourage settlements in the administrative process. There could be an exception if the agency prevails on summary judgment, indicating that the case was lacking in merit. Another suggestion is to require the reporting of all EEO and whistleblower cases regardless of whether they result in an administrative closure, settlement, or court decision. Also, all cases where money is paid to the complainant should be reported regardless of any “no fault” provisions in settlement agreements. Agencies sometimes cover up the amount of attorney fees or compensatory damages paid out by labeling the amount of the settlement a “lump sum.”

Any written comments on the proposed OPM regulations must be submitted by March 27, 2006, to Ana A. Mazzi, Deputy Associate Director for Workforce Relations and Accountability Policy, OPM, Room 7H28, 1900 E Street, NW, Washington, DC 20415; by fax at (202) 606-2613; or by e-mail at NoFEAR@opm.gov. For further information, contact Gary D. Wahlert by telephone at (202) 606-2930; by FAX at (202) 606-2613; or by e-mail at NoFEAR@opm.gov.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.