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Federal Employees News Digest : Dec 2, 2013
December 2, 2013 Vol. 63, No. 20 8 Visit us on the Internet at www.FederalDaily.com Office of Special Counsel warms to mediation Heavier workloads and tighter budgets are usually a recipe for disaster for federal employees, but the com- bination of these factors is actually yielding a welcome trend at the Office of Special Council (OSC). And that trend is this: the OSC has quadrupled the number of cases concerning complaints over prohibited personnel practice (PPP) and Uniformed Services Employment and Reemployment Rights Act (USERRA) violations that it has referred to alternative dispute resolution (ADR), according to the agency's latest annual report. Citing a "swelling caseload" and "the current difficult fiscal environment," the OSC said in this report that it "has adapted by strategically deploying our resources and resolving cases more efficiently." These efforts, the agency said, were "com- plemented" by its use of ADR. The number of cases that OSC referred for mediation jumped to 129 in fiscal year 2012 from 31 the previous fiscal year. The OSC's stronger preference for ADR can equate to major savings for federal employees in terms of time and money. Normally, after an employee files a PPP or whistle- blower retaliation complaint with the OSC, the watchdog agency may interview the complainant and then investigate the complaint. The complainant and defendant agency will not interact during this months-long investigation process. With ADR, however, the OSC actively attempts to help the parties settle the complaint. That should lead to more settlements, which are good for complainants because Merit Systems Protection Board (MSPB) appeals can be costly. If the OSC declines to pursue the case or does not act on the complaint within 120 days, the complainant can file an indi- vidual right of action (IRA) appeal with the MSPB. Not surprisingly, many employees have warmly embraced ADR. Out of the 129 cases for which mediation was offered in fiscal year 2012, 82 complainants accepted mediation. However, mediation was only accepted by both defendant agencies and complainants in 59 cases. OSC only mediated 40 of those cases, and either the OSC or defendant agency withdrew from media- tion after it was accepted in 10 of them. In the end, mediations yielded settlements in 18 cases, up from three the previous fiscal year, according to OSC's 2014 fiscal year Congressional Budget Justification and Performance Budget Goals report. While I am happy to see OSC expanded its ADR program in fiscal 2012, I find it disheartening that the agency does not plan to grow it much more. According to the budget justifi- cation report, the OSC's target number of cases referred to mediation in fiscal 2014 is 125---four less than the number it referred in fiscal 2012. The OSC, which had an estimated 109 full-time employees (FTEs) in fiscal year 2013, requested funding for an addi- tional 11 FTEs for fiscal year 2014. However, most of them were planned for its PPP investigation and prosecution pro- gram and none were planned for its two-FTE ADR program, according to the budget justification. It is important for federal employees to remember that an offer of mediation does not diminish the need for represen- tation by an experienced federal employment law attorney. In fact, mediation makes retaining experienced counsel more crucial because the employee needs to present enough evidence to compel the agency to agree to a reasonable settlement. By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at firstname.lastname@example.org. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
Nov 25, 2013
Dec 9, 2013