On January 24, the Office of Personnel Management issued over-due regulations under the Notification and Federal Employee Antidiscrimination and Retaliation (No FEAR) Act. The Act is intended to reduce the incidence of workplace discrimination within the federal government by making agencies and departments more accountable.
The No FEAR Act requires agency reimbursement to the government’s judgment fund for payments made because of actual or alleged violations of federal discrimination laws, federal whistleblower protection laws, and/or retaliation claims arising from the assertion of rights under these laws. Prior to the enactment of the No FEAR Act, agencies were not required to reimburse the fund. The intent of this provision is to create a financial incentive to foster a federal workplace that is free of discrimination and retaliation. The fund is available for court judgments and Justice Department compromise settlements of actual or imminent lawsuits against the government. Therefore, the reimbursement provisions of the act do not apply to administrative proceedings such as discrimination complaints before the EEOC, or whistleblower cases brought before the MSPB.
The OPM regulation implements the reimbursement provisions of the act and governs the process of reimbursements to the Treasury Department. This regulation is effective upon publication, but is still subject to public comment for 60 days. All payments made by the judgment fund covered by the No FEAR Act are expected to be fully collectible from the agency and need to be made within a reasonable time. Therefore, the regulations provide that notice will be provided by the administrator of the fund, to the agency’s chief financial officer within 15 business days after payment from the fund. Within 45 business days of such notice, agencies must reimburse the judgment fund or make arrangements in writing for reimbursement. An agency’s failure to reimburse the judgment fund or to contact FMS within the required time period will be recorded on an annual basis and posted on the FMS Web site. The regulations do not provide for any other consequences to the agency.
The Equal Employment Opportunity Commission on January 26, released implementing rules under the No Fear Act regarding the posting of EEO complaint processing data. These rules will be discussed in next week’s article.
OPM, along with the Department of Justice, the Department of Treasury, the EEOC and the Office of Special Counsel are working to draft regulations concerning the remaining features of the No Fear Act, including notification and training, annual reporting requirements, and a comprehensive study on best-practices to address workplace discrimination within federal agencies. These regulations were to be implemented on October 1, 2003, and there is no indication as to when they will be issued.
** 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
