This article discusses the Equal Employment Opportunity (EEO) mediation process for federal employees. Our law firm represents federal employees in discrimination, harassment, retaliation and sexual harassment cases before the Equal Employment Opportunity Commission (EEOC) and/or individual federal agency EEO offices. Many retaliation, discrimination or sexual harassment cases filed through the EEO process proceed to mediation, which is often a good idea.
This article discusses the EEO mediation process and the potential benefits associated with engaging in that process for both parties involved.
What is the EEO Mediation Process?
Mediation is a voluntary procedure where the parties attempt to avoid litigation and resolve a complaint early in the process. Once the EEO complaint process has started federal employees and agencies can attempt mediation first. If mediation is agreeable, then a mediator is assigned. The EEOC provides an excellent general summary of the general mediation process.
The mediator assigned to a case does not make a finding as to who is right or wrong and has no authority to impose a settlement on the employer and complainant. Instead, the EEO mediator attempts to assist the parties in exploring and resolving their differences and hopefully come to a settlement of the case. There is also no fee by from the federal agency for the mediator as it is a benefit provided by the federal government to resolve cases.
Who Attends the EEO Mediation Session?
Usually, once mediation is scheduled, both parties and their lawyers will attend, along with the mediator. The mediator can be someone employed by the agency or a third-party contractor. The background of a mediator varies significantly. It is very useful, however, to have an attorney for both parties to attempt to resolve the case at the earliest stage possible. Furthermore, once an agreement is reached you will need counsel to prepare a written agreement over the terms agreed to.
How Does EEO Mediation Work?
Usually, mediation will be held at a location located in a conference room at the federal agency. Sometimes mediation is conducted by Zoom or Microsoft Teams. The session will usually last from a few hours to a day. Once the mediation session begins, the process usually will proceed as follows:
1. The mediator provides a copy of the mediation agreement. The mediation agreement will ensure that any discussions at mediation are held confidential; they can’t be used later in litigation if settlement does not work out.
2. The mediator will begin by explaining the mediation process to the parties. Mediators, depending on their experience, how many different ways of conducting a mediation.
3. The parties will each provide an opening statement about their position in the case. It is often helpful for the employee to explain how they suffered discrimination, sexual harassment, or retaliation. The Government will then provide their own statement in response.
4. The parties will then usually discuss the EEO complaint. The mediator may attempt to steer the discussion into a dialogue to attempt to get the parties to begin a discussion.
5. The parties may then discuss resolving the complaint or the parties may be separated in separate rooms. A mediator may go back and forth between the parties discussing proposals and responses from each side.
6. The most important part of the mediation process are the caucus sessions; that is where most agreements are found.
7. The mediator will attempt to bring the parties to terms agreeable to both sides, typically a compromise between what both sides want. Sometimes this occurs, and sometimes this does not.
8. If settlement terms are agreed to, the next step will be to reduce the agreement to writing and have all parties execute the agreement.
Formal Written Settlement Agreement
Following a verbal agreement between the parties agreed to at mediation, a written settlement agreement is completed. Usually, where parties are represented by counsel, this will be drafted and reviewed by the attorneys. The agreement will bind both parties to a resolution and the agreed-to terms of the settlement (e.g. reinstatement, benefits, severance, backpay, promotion, attorney fees). When a settlement agreement is signed, the EEO complaint will be then withdrawn as part of the agreement.
According to EEOC statistics, the settlement rate at mediation is approximately 72-75%. We consider it a victory if both parties can resolve a case and save the time and costs of further litigation through dispute resolution efforts.
When Mediation Doesn’t Work Out
If mediation doesn’t work out, then the parties can return to the normal complaint process without any loss of rights. An investigator will be assigned and conduct the investigation. It is generally a good idea to try to mediate an EEO complaint first before going through the investigative process, as many cases do settle.
If you are a federal employee in need of assistance with filing an EEO complaint or mediation, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
The 2019 primaries and 2020 national elections are approaching soon. Our law firm often represents and defends federal employees in Hatch Act violation cases. The Hatch Act was meant to curtail partisan political involvement for federal employees. There are certain restrictions that prohibit certain political conduct, both on-duty and off-duty. As these elections approach, this article is meant to help federal employees avoid the problems of committing potential Hatch Act violations.
What is the Hatch Act?
The Hatch Act was first proposed by Senator Carl Hatch of New Mexico and enacted in 1939 prohibiting certain types of political participation by federal employees. This can vary between types of federal employees. For most federal employees, however, the rules are similar. Federal employees may not seek public office in partisan elections, use their official titles or authority when engaging in political activities, solicit or receive contributions for partisan political candidates or groups, and/or engage in political activity while on duty. Even some non-partisan elections can give rise to Hatch Act violations by federal employees if a candidate is sufficiently backed by a particular party.
Office of Special Counsel Enforcement for Hatch Act Violations
For most federal employees, the Hatch Act is enforced by the Office of Special Counsel (OSC). The OSC has the ability to seek disciplinary action against federal employees if violations are uncovered. Typically, violations are investigated following a complaint being filed with the OSC. Federal employees can potentially be disciplined or terminated for violations of the Hatch Act. Generally, the OSC will first conduct a detailed investigation into the allegations and then if violations are found they may then seek to negotiate a resolution with the alleged offender.
Photo by Aaron Kittredge on Pexels.com
In other cases, the OSC may file inform the individual that they are simply moving ahead with a disciplinary action filing with the Merit Systems Protection Board (MSPB) against the employee (usually seeking removal) and ask an MSPB administrative judge to take action against the federal employee for at the violations.
General Hatch Act Tips for Federal Employees
Federal employees are encouraged to seek advice before engaging in political activities. There are many types of federal employees and some are more restricted than others. Here are 8 simple tips for federal employees seeking to avoid potential Hatch Act violations:
1. Don’t run for office in a partisan political election;
2. Avoid partisan political discussions while in the federal workplace or while performing work;
3. Don’t try to raise funds for partisan political candidates in the workplace (even passing along website links for candidates to co-workers);
4. Don’t post political opinion or discussion during work hours on social media;
5. Don’t donate to a political campaign during work hours;
6. Don’t bring political campaign signs or buttons into the federal workplace;
7. Don’t use government resources (email, internet) to engage in partisan politics; and
8. Don’t use your government title or affiliation to endorse a political candidate.
Federal employees can usually still participate in many political activities, but doing so at work can be a violation of the Hatch Act. Federal employees can sometimes be candidates for non-partisan elections, assist in voter registration drives, express political opinions, attend fundraisers, sign nominating petitions or hold office in political parties.
For further information on potential Hatch Act violations, please see the information offered by the OSC. While it is doubtful that brief discussions about politics in the federal workplace would trigger an OSC investigation, the potential risk is there. The safest course for federal employees is to simply avoid partisan politics in the workplace and save them for off-duty.
Conclusion
If you need assistance with Hatch Act defense or other federal employment law issues, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
