Who defends you when you get sued?

The public and government workers can sue federal employees, and evidence shows that such lawsuits are on the rise.

The government will defend employees if they are sued for events that occur in the course of their jobs, but some opt anyway to purchase private insurance, which agencies now must help pay for.Federal workers are at risk for being sued whenever they act within the scope of their jobs, whether it be delegating assignments, conducting evaluations or meeting with the public.

In fact, if you are away from your desk, your exposure to lawsuits from private citizens is greater. A case in point: A federal law enforcement officer who was pursuing a suspect on foot accidentally ran into an innocent bystander. The person incurred several injuries and sued the officer for medical bills and lost wages from missed work.

In another case, three IRS employees were sued by a person who was convicted of tax crimes. They were found guilty of leaking information regarding the investigation, and their penalties ranged from $150,000 to $1 million.

The federal government does not guarantee you coverage or even an attorney if you are sued. The Federal Tort Claims Act says the government can choose whether to defend you and cannot cover monetary damages levied against you. That may sound harsh but it really isn't.

The government will defend an employee who is sued for actions while performing ordinary job duties. But what if it isn't clear that an employee is carrying out his or her job duties? What if another employee claims you hit him or her? That is why the government is allowed to decide whether to defend you.

If an investigation is conducted and it is determined that you hit a co-worker during an argument, your agency may very well decide not to defend you. Hitting a co-worker is not part of any job description. On the other hand, the government should defend you in a lawsuit if you wind up in a scuffle with a subordinate while trying to defend yourself.

We all know that the system doesn't always work the way it should, and there will be cases in which an employee should have been defended by his or her agency and wasn't. However, these instances are rare. That's because an agency has a personal stake in backing up its supervisors and managers. If it does not, and they are found guilty while performing the normal duties of their jobs, who would want to take a supervisory job with Uncle Sam?On the other hand, government agencies do not, and should not, defend employees who misbehave. If a supervisor sexually harasses a subordinate, should an agency step up to the supervisor's defense? If a manager brings in an unqualified crony and places that person in charge of a division, passing over well-qualified employees, should the agency defend that manager in a lawsuit?

Some employees take the extra step of buying professional liability insurance to financially protect them from liability stemming from job-related activities. A new policy that became effective Oct. 1 orders agencies to reimburse their supervisors, managers, executives and law enforcement officials for half the cost of obtaining private insurance. Agencies had been allowed to do so in the past, but this is the first time it has been mandatory.

There is a positive aspect to this. If an employee has professional liability insurance—half of which is paid for by Uncle Sam—the insurance company will have to defend that employee if he or she is sued. That will save the government and therefore taxpayers money. On the down side, because the government pays a portion of insurance, taxpayer money will be spent to defend any fed who has purchased insurance, even a supervisor who sexually harasses a subordinate.

You might say, "Well, if the guy is guilty, that fact will come out in the course of the litigation." Again, theory and practice do not always coincide.

If the plaintiff in a sexual harassment case doesn't have the money to hire a good lawyer, the supervisor might prevail whether or not he is guilty. I fear that some supervisors with professional liability insurance will feel less constrained by the rules and regulations of professional conduct. After all, if a supervisor or manager wants to hurl a racial slur at a subordinate, what is the risk? If the employee sues, the manager would not be concerned because the insurance company will come to his or her defense. And who is paying for half of that insurance premium? The taxpayer. Is that right? I don't think so, and I sure hope you don't.

--Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.


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