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Should you accept a clean record agreement?

Litigation is always a calculated risk. When a federal employee is subjected to an adverse action in relation to their job, there is a variety of possible outcomes. Sometimes it may be for unjust reasons, but the evidence may not be so clear-cut. And there may be situations where the evidence is a muddle, with questionable behavior on both sides, and none of it very clear.

The Merit Systems Protection Board (MSPB) has issued a report describing the board's advice to agencies who agree to allow an employee subjected to an adverse action to resign in exchange for a clean record. A clean record agreement (CRA) may be to an employee's advantage if allegations could damage their job prospects and their ability to prove a wrongful termination is less than overwhelming.

A CRA is a settlement agreement, and the obligations are contractual. This means the coverage offered by a CRA can vary. For instance, if a federal employee is involved in a removal action for wrongdoing, and the agency has investigated the grounds for removal, in most cases the CRA would prohibit the former agency from disclosing any information related to the investigation of employee's alleged actions. This would include merely confirming that the employee had been involved in a removal action.

One reason to consider a CRA in the proper circumstances is the MSPB has a very high success record with appeals in the MSPB, and a CRA, being a negotiated settlement, is a sure thing. You know what you are agreeing to, before you sign the agreement.

Whether you should accept a CRA is a complex question and will turn on the specific facts of your case. You need discuss this issue with your attorney and fully understand all of your options prior to making your decision.

Source: FedSmith.com, "A Must Read: MSPB’s Clean Record Settlement Report," Bob Gilson, December 10, 2013

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