Settlements, mediations, and remedies

➤ What can I ask for remedies or for settlement at the mediation conference or at any other time?

Remedies vary depending on your circumstances.  If you are terminated, your standard remedies might be immediate reinstatement with lost wages and benefits (including out of pocket medical expenses and retirement benefits that were negatively impacted).  If you are suspended, you might want to ask for purging any and all disciplinary records and lost wages (if applicable).  If you were denied promotion/hire, the remedies might be promotion/hire to the position you sought with the salary differential between your current salary (if applicable) and what you would have received had you been promoted/hired for the period between the presumed promotion/hire date and the present.  If you are sexually harassed, the remedies might be to require a mandatory sensitivity training for certain time period (a week or two) offered by professional, third-party company specializing anti-sexual harassment, paid by the individual who harassed you and who is to attend, etc.  

It is generally not reasonable (if not impossible) to demand (to be granted) removal or transfer of your supervisor out of your work location.  

The more specific you demands are, the better chances of settlement/mediation.  For example, specify the time period for which you are seeking the lost wages and benefits.  Calculate to the dollars and cents based on the salary as of the relevant time period such as for the time period between your termination date and the present or between then and the time of full execution of the settlement agreement.

Every dollar should be justified.  Avoid asking a million dollars without itemization for each dollar.  How much is for lost wages, how much for medical expenses, how much for pain and suffering?

Usually, dollar amount for pain and suffering is difficult to calculate and prove (empirically or by way of documents).  Therefore, unjustified and unproven amount for pain and suffering usually kills the settlement negotiation or mediation.  If you want to settle, be realistic.  Offer the amount the Agency will pay (to get rid of your case).

Do not walk out of a mediation meeting without a written agreement, signed and dated by all parties involved.  But also, don't be afraid to call off the settlement negotiation if the gulf is too great between your demand and the Agency offer.  Sometimes the threat to call off settlement may be your best weapon against the Agency which wants to or needs to settle.  

Do not sign any documents you don't understand or fully agree with.  Do not be pressured to sign on the date of the mediation.  You can always settle or mediate later.  You can always consult your attorney (if you have one) before signing an agreement.  A written agreement without your signature may be reviewed by an attorney at a later date at a cheaper rate than for the rate he may charge you for negotiating every word in the agreement.  

Do not walk away from a mediation meeting without knowing specifically and exactly what Agency is willing to offer.  If Agency is not interested in offering anything but only interested in cutting down on your offer or the merits of your case, stop!  Terminate the meeting.  Mediation meetings are for mediation only, and not to establish or negate facts involved in your case.  Stop talking about the case; try to talk about money (if money is what you want) or whatever it is that you want for settlement.  

Whatever is discussed at the mediation meeting will not be left on record.  Therefore, don't argue your case; and don't let the Agency argue their position. Doing so usually is a complete waste of time.  

Do not trust the mediator or Agency attorney unless what they say are in writing backed by their signature.

Never take seriously the 'last and final' offer from the Agency as such.  Never stop responding with a counter offer.

➤ How to negotiate a settlement agreement or how to mediate:

Everything must be negotiated and written down in the settlement agreement.  Don't expect the demand in black and white and in precise terms.  Otherwise, nothing extra or nothing assumed will be provided to you.  Do not rely on Agency attorney's words (unless written down with his verifying signature).  For example, Agency attorney may say to you that he is not authorized to offer you more than $1,000; or that he cannot oversee processing of the settlement check and therefore that the agreement can only provide for the Agency requesting the check from the Treasury Dept., etc.  If there is no certainty that you will receive the check by certain date, don't sign the agreement.  Require deadline in the terms of agreement such as:

"Within 45 days of Complainant's signature on this Settlement Agreement, the Agency shall forward a check in the amount of $15,000.00, payable to Jane Doe [Complainant], to the following address: 1111 E. Street Street. Streetville, PA 19000."

You might want to include the following condition at the end as a guarantee: "This Settlement Agreement shall become null and void immediately if any of the above specified terms are not complied with by the Agency in the manners so specified above and/or by the dates so specified above.

Don't insist on the exact wordings, as Agency attorney might want to change for legal or stylistic reasons; but insist on the exact conditions and terms.  Do not propose the agreement; only propose the terms of the agreements.  Agency attorney will eventually put the terms in a (hopefully) standard settlement agreement template.

Always demand verification terms if and when applicable.  Purging of any and all disciplinary records in Complainant's personnel file for the last 5 years prior to January 1, 2025 [the date of termination], including any and all written warnings, removal notice, etc., for example, may look good in an agreement; but without a verification you may never know if Agency would indeed do 45 days of Complainant's signature on this Settlement Agreement, the Agency shall provide the Complainant with a letter--written on an official Agency letterhead and by the head of the Agency, so and so [name him or her], or the equivalent thereof--stating that the above referenced disciplinary records were purged as so specified therein."

If a neutral letter of reference verifying your past employment is valuable to you (as one of the conditions of settlement), you might want to specify the exact language as follows: "Within 45 days of Complainant's signature on this Settlement Agreement, the Agency shall provide the Complainant with a letter--written on an official Agency letterhead and by the Director of Human Resources, so and so [name him or her], or the equivalent thereof--stating: "John Doe was employed by U.S. Department of Agriculture from [this date] to [this date] in the capacity of [the job title] with the starting salary of $.... [if applicable or desired] and with the ending salary of $... [if applicable or desired].

Again, you don't need to insist on the exact wordings but insist on the exact terms and conditions in the settlement agreement.

Remember: Everything must be negotiated; everything must be written down.  Don't believe what you hear regarding what the Agency can or cannot do or will or will not do.  (Do not be intimidated, threatened, or mislead.)  Only believe what is written down and when it is written down with proper signature.

➤ Some real examples of settlement/mediation terms and conditions (I came across and paraphrased here that) you should avoid:

• A promise of a meeting to discuss the reasonable accommodation you requested.
• A meeting with the head of the Agency to discuss the problems you experienced on the job.
• Change of termination to resignation without lost wages and benefits and without verification (on the promised changes).
• A promise of a vaguely termed training to prepare you (supposedly) for the possible job openings in the next 6 months (that may not actually be open).
• A promise of non contest on your Worker's Compensation claim.  (You can always settle after your OWCP claim is approved or, better, after you receive the claim check.)
• A promise of a job offer without specific work site location, supervisor, start date, salary, etc.
• Withdrawal of your discrimination complaint for a verbal reconciliation and hand shake.
• Withdrawal of your discrimination complaint for a promise by the EEO counselor that she will do her best never to allow discrimination in your office.
• Withdrawal of your discrimination complaint for establishment of anti-harassment and anti-discrimination policy. (Such policy is required by law anyway even without your case being filed or settled.  Don't ask for anything Agency is required to do anyway under law. Besides, having a policy is one thing; practice is quite another.)

➤ Some actual samples of settlement proposals and agreement:

1. Sample 1 (reinstatement to limited duty position, lost wages, etc., in letter form)
2. Sample 2 (lost wages, AWOL, etc. - a full remedy demand)
3. Sample 3 (back pay, Thrift Savings Plan, etc.)
4. Sample 4 (blank form in EEOC hearing motion format w/ certificate of service)
5. Sample 5 (cash proposal in exchange for release, in letter form)
6. An actual settlement agreement (a fully executed agreement EEO 21, LLC helped to negotiate)
7. Another settlement agreement negotiated by EEO 21, LLC.

➤ How to minimize payroll tax deductions in the settlement amount:

If the claim involves wage losses, the Agency can deduct FICA and other wages taxes from the settlement amount. However, if a claim or settlement term involves employment discrimination or injury, loss of reputation, or emotional distress compensation claim stemming from discrimination as alleged, then the Agency may issue 1099-Misc;.record the settlement amount as 'other income' in Box 3 in the form; and put in the Remark section: "EEOC claim settlement for discrimination (as alleged);" so as to avoid hefty deductions.   If the Box 7 is check in the 1099 as "Non Employee Compensation," a hefty 40% in federal and Social Security Taxes will be deducted by IRS as a payment to an independent contractor.  

A lump sum cash payment you receive from a settlement agreement will be taxed as income, unless it is for compensation of your physical injury somehow sustained as result of discrimination as you alleged.  Compensations for "emotional" injuries are taxable.  See more on this in my LinkedIn article.

Even if the settlement amount involves lost wages, you may suggest/demand that you will take responsibility of paying all applicable municipal, state, and federal income taxes when you file a income tax report (the next year), and (in this way) not have the Agency deduct payroll taxes when you receive the settlement money.    

Disclaimer: EEO 21, LLC is not a tax consultant.  These matters should be properly referred to your tax advisor.  We are grateful to our former client who provided this valuable information she obtained out of her own successful settlement agreement experience in which EEO 21 was involved.

Disclaimer

• Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
• Mr. Lee does not practice law and cannot provide attorney-client protection privileges.  However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
• Mr. Lee cannot and does not represent clients at court proceedings.