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Legal Insider: Early Retirement for Federal Employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kimberly H. Berry, Esq.

The Federal workforce is presently undergoing significant changes in size and scope.

In some instances, this has led to the Federal government providing incentives for Federal employees to retire early. Federal agencies that are undergoing substantial organizational changes such as reorganization, reduction in force, reshaping or downsizing can be given the option to offer federal employees voluntary early retirement based on the Voluntary Early Retirement Authority (VERA). OPM provides guidance on VERA here.

The purpose of VERA is to help agencies complete the necessary organizational change with minimal disruption to the workforce and make it possible for federal employees to receive an immediate annuity payment years before they would be eligible.

The voluntary early retirement provisions are the same under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS).

Requirements for Early Retirement

In order to be eligible to retire under VERA, a federal employee must usually meet the following requirements:

  •  Meet the VERA minimum age and service requirements set by statutes in the U.S. Code for CSRS and FERS employees (i.e., the employee has completed at least 20 years of creditable service and is at least 50 years of age or has completed at least 25 years of creditable service regardless of age).
  • Have been continuously employed by the agency for at least 31 days before the date that the agency initially requested the Office of Personnel Management (OPM) approval of VERA.
  • Hold a position that is not a time-limited appointment.
  • Have not received a final removal decision based upon misconduct or unacceptable performance.
  • Hold a position covered by the agency’s VERA authority or program.
  • Retire under the VERA option during the agency’s VERA acceptance period.

It is very important for federal employees considering a VERA offer or whether one is available to seek the advice of an attorney regarding their retirement issues prior to initiating the VERA process.

Our law firm represents federal employees that are considering early retirement and in other federal retirement matters.

Conclusion

If you are in need of federal employee retirement law representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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Legal Insider: Top Reasons for Clearance Denial in 2018

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent security clearance holders and applicants so every few years, we look back on the trends of what security concerns most often lead to the loss (or potential loss) of a security clearance. This year we thought we would do the same. Overall, not much has changed.

2018 Grounds for Loss of Security Clearance

There are 13 security concerns that can lead to the loss of a security clearance, which is listed in Security Executive Agent Directive 4 (SEAD 4). These concerns range from foreign influence to financial issues and numerous other issues in between. A review of publicly available security clearance cases was conducted by Marko Hakamaa of ClearanceJobs.com, which provided the breakdown of issues that resulted in initial security clearance denials.

Financial Issues Remain the Number 1 Concern

From the report, it is fairly clear that the number 1 issue of concern for security clearance holders remains Financial Considerations under Guideline F. While this Guideline can cover many areas related to financial responsibility, we see that it most often comes up in the context of a credit report which shows major unresolved debts or when an individual’s tax payments or filings are not timely.

Often for major debts the government is concerned that this could leave an individual subject to potential coercion. For issues related to taxes, the issue is the non-compliance of the individual with tax laws.

General Misconduct Comes in Second

The second most significant security concern from this report shows that Guideline E, Personal Conduct is the next most common clearance issue. Guideline E is a general security concern which can practically cover any type of bad conduct. Most typically, however, it often comes up in the context of illegal drug use, an arrest, a record of bad employment or lying on security clearance forms.

Foreign Influence is Ranked Third

The third most common basis for losing a security clearance was foreign influence, under Guideline B. This issue most commonly comes up when an individual with a security clearance (or who is seeking one) has relatives or property in another country.

The major concern of the government is that an individual may have relatives in another country that work for that government or who could be used as pawns to gather information from the clearance holder or applicant. The United States also treats clearance holders and seekers whose relatives are from allied countries (e.g., the United Kingdom, France, etc.) much better than those from less cooperative countries, like China or Russia.

The rest of the 2018 breakdown of security concerns is included in this report. We represent individuals with these types of security clearance appeals and there are often mitigating factors which can result in a favorable adjudication of these types of security clearance issues. The key is to involve counsel experienced in this area of law as soon as possible.

Conclusion

If you are in need of security clearance advice or representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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Legal Insider: Whistleblower Claims in Virginia

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent employees in Virginia who have been terminated in retaliation for whistleblowing. Whistleblower cases are unique and present their own unique challenges.

Employees are advised to seek counsel as early in the process as possible if they believe that they have been terminated (or will be terminated) in retaliation for whistleblower activities.

Whistleblower Law in Virginia

In Virginia, if a whistleblower reports alleged wrongdoing or states that they intend to report it, this can subject the employer to a civil lawsuit for retaliation if it falls under certain criteria. While Virginia is an at-will state, and employees may be fired for any reason or no reason at all, exceptions can apply.

In the past 30 years, exceptions to this general rule have started to emerge in Virginia. One such exception involves employee termination in retaliation for whistleblowing.

The Virginia courts carved out this exception to the at-will doctrine in the 1985 case of Bowman v. State Bank of Keysville. Other rules on whistleblowing can apply to federal employees and state or local employees. This article focuses on private company employees in Virginia.

What Kind of Retaliation is Covered?

An employer may not terminate an employee for reporting an issue that relates to the public policy of Virginia. An employee has a potential claim for wrongful discharge when the basis for the discharge violates public policy.

In order to determine what constitutes public policy, Virginia courts have pointed to statutes to determine if an issue has been endorsed by the state (e.g., the right to collect unemployment compensation benefits if eligible) or prohibited (e.g., criminal laws prohibiting perjury).

Example: Employer is sued for a personal injury by a shopper in their department store. Employee Jim Smith is a witness to the injury. The employer asks the employee to lie in court so that they won’t be liable. Mr. Smith refuses to lie in court. Employee A testifies truthfully and is then fired.

Statutory Whistleblower Retaliation in Virginia

In addition to the exceptions carved out by the Virginia courts, the Virginia General Assembly has passed specific statutory protections for certain activities. Employees who engage in protected activities under laws in certain areas are also protected from retaliation. These include asbestos, lead, and home inspection contractors; occupational safety and health issues; and workers’ compensation.

However, because the Virginia assembly has not passed a general whistleblower protection statute, most workers have to rely on the exceptions carved out by the courts to pursue a whistleblower claim. The courts in Virginia have seen an increase in the number of these types of cases in recent years.

I believe that more cases will expand this doctrine as Northern Virginia grows and exerts influence in Richmond for these types of employment protections.

The most usual remedies for Bowman Whistleblower claims can include:

  • Reinstatement
  • Damages
  • Lost Benefits
  • Attorneys fees

Conclusion

If you are in need of employment law advice representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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Legal Insider: Ghosting Hits The Employment World

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We practice employment law. A new trend that the Federal Reserve and others have picked up on recently is the concept of “ghosting.” Ghosting occurs when a job applicant does not show up for their scheduled interview or where an employee does not show up for scheduled work and never returns.

What is Ghosting?

In areas which range from food services to banking, employers have indicated that a tighter job market and labor shortages have led to applicants deciding not to show up for scheduled interviews without notice or in accepting positions and then not showing up for their first day of work.

In other cases, ghosting has meant that an employee just decides to leave their employment without giving notice (or telling anyone) and just never shows up again. Other reasons for ghosting include the fact that because the employment rate is very low, it is easier than ever to find new employment. One report indicated that 20-50% of employers were facing ghosting in one form or another.

Why is Ghosting Bad for Employees and Applicants?

Ghosting is very bad for applicants and employees on a number of levels.

For starters, it isn’t a good long-term career strategy. If an employee doesn’t provide notice to an employer that they are leaving, supervisors may call the police for a wellness check, leading to a host of issues.

Additionally, by leaving in this manner, employees will most likely be deemed by the employer to have abandoned their employment and then classified as having been terminated. As a result, the employee that “ghosts” away from their employment will be left with a negative mark on their employment records, which they may have to disclose in future employment applications elsewhere and/or if they choose to ever seek a security clearance. This also applies to new employees that are hired but do not show up for their first day of work.

For applicants that don’t show up for interviews, doing so can hurt them in other ways. If a recruiter is involved, that recruiter could list the non-appearance in a shared database with other recruiters, essentially blacklisting the person.

With the digital future upon us, it is only a matter of time before such things also end up in background investigations or reports. The point is that “ghosting” is a recipe for hurting one’s own career.

It is important to take the time to give notice to an employer and make a phone call or at least send an email to an employer if an individual they plan to quit or cannot make a scheduled interview. Furthermore, if an applicant “ghosts” a scheduled interview with an employer, that individual’s name may get around to others in the same field, causing them to lose or not get an interview with other employers.

It may be easier to ignore interviews or leave for better employment, but it is far better to do so with professionalism. Ghosting is simply to big a risk for an employee or applicant to their long term career.

Conclusion

If you are in need of employment law advice or assistance, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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Legal Insider: Marijuana & Security Clearances Don’t Mix

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

There have been at least 10 states that have legalized marijuana over the past 5-10 years. The change in state laws has led to significant confusion by security clearance holders about their ability to use marijuana while holding or seeking a security clearance.

States like Massachusetts or California have legalized marijuana, but marijuana use remains illegal under federal criminal law as a Schedule I drug. The state and federal conflict in laws has caused both confusion and problems for security clearance applicants or holders.

Security Clearance Rules Governing Marijuana Usage

Security clearance holders and applicants frequently run into security clearance problems under Guideline H of the Security Clearance Guidelines (Security Executive Agent Directive 4) because they don’t realize that the use of marijuana, even in a state that has legalized it, remains illegal under federal law.

I believe that these guidelines will be amended in the next 5-7 years to change the use of marijuana from a complete ban to an abuse standard, like with alcohol, but the issue remains a problem today for those in the security clearance world.

Additionally, the type of marijuana which is used makes no difference (e.g. candy form, chocolate, brownie, smoking) under the guidelines. We have seen individuals that have had security clearance problems stemming from eating a single gummy candy which contained the active ingredients of marijuana.

We have defended many security clearance clients who have engaged in the light (or even one-time) usage of marijuana, who have had difficulties in overcoming the presumption that even minor use makes one ineligible to hold or maintain a security clearance. If the usage was a long time ago, this can significantly help mitigate a security concern, but the trickiest situations arise when marijuana usage has occurred within the past year.

The key in such cases is to attempt to mitigate security concerns by showing abstinence, changes in attitude, changes in associations with friends that engage in drug use and counseling, where needed.

Guideline H of the SEAD 4 states that:

The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.

Mitigation of Marijuana Use

Certain factors can mitigate security concerns for marijuana usage. These include:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to:

     (1) disassociation from drug-using associates and contacts;
     (2) changing or avoiding the environment where drugs were used; and
     (3) providing a signed statement of intent to abstain from all drug involvement and
substance misuse, acknowledging that any future involvement or misuse is grounds for
revocation of national security eligibility;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

(d) satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

How to Approach a Marijuana Use Issue When a Security Clearance is Involved

It is very important not to underestimate the seriousness involved when a security clearance application, investigation or appeal reveals even minor usage of marijuana. Even minor usage of marijuana can cause the loss of a security clearance.

Marijuana usage issues may change in the future as the government likely moves from complete marijuana abstinence to an abuse threshold. In such cases, mitigation and the Whole-person concept are critical to attempting to obtain or retain one’s security clearance.

Conclusion

If you are in need of assistance in the security clearance process, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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Legal Insider: Rights for Federal Employees in Disciplinary Cases

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

More common types of federal agency “adverse actions” (more serious discipline) include removal, demotion, reduction in grade or suspensions of greater than 14 days. Some types of “disciplinary actions” (lessor discipline) include letters of warning, letters of reprimand, oral or written counseling or suspensions of less than 15 days.

Federal Employee Rights in Disciplinary Cases

If a federal employee is issued a proposed disciplinary action, the proposal will normally include a description of the alleged misconduct and the type of charge against the employee (e.g., insubordination, theft, conduct unbecoming, lack of performance, etc.).

Federal employees in adverse action matters (suspensions of 15 days and above, and demotion matters) and in some disciplinary actions (suspensions of any length (usually 14 days and below)) have the following rights: (1) right to an attorney; (2) right to respond to the proposal in writing or orally, and (3) the right to review all of the materials relied upon in the issuance of the Proposal.

We recommend that employees involved in proposed disciplinary or adverse action always request from the agency all of the materials that it is relying upon to propose discipline. Sometimes disciplinary actions will not be drafted properly and reviewing the materials relied upon can help in responding to the discipline.

Present Both a Written and Oral Response

We also usually recommend, in most cases, that a federal employee present both a written response and an oral response to the deciding official (the decision maker on the disciplinary action) in a proposed disciplinary or adverse action.

The oral response portion of a federal employee’s response can be extremely important and usually follows the submission of the written response.

Typically, when we assist federal employees in this regard, we obtain a full statement of facts from the federal employee involved and prepare a full written rebuttal to the allegations. We also contact the deciding official in the personnel action and request an appointment for the oral response.

In these types of cases, we respond to both the merits of the alleged conduct and argue for mitigation under the Douglas Factors. Douglas Factors typically are mitigating reasons as to why a particular disciplinary penalty should be reduced (i.e., based on years of successful performance, no prior disciplinary actions, lack of clarity about the rules at issue and other reasons why a disciplinary penalty should not be so harsh).

Conclusion

If you are in need of assistance in the federal employee discipline process please contact our office at (703) 668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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Legal Insider: Five Considerations for Federal Employee Disability Retirement Cases

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kimberly H. Berry, Esq.

One of the more typical types of retirement matters that our firm handles involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management (OPM).

Federal employees thinking about filing for disability retirement should consider the following five issues as they debate whether or not to proceed.

1. How Serious are the Federal Employee’s Medical Disabilities and are They Linked to Duties in Their Position Description?

When making a disability retirement decision OPM evaluates a federal employee’s continued ability to work with their medical condition in the context of the duties described in their position description. OPM uses the phrase “useful and efficient service in your current position” to describe the degree to which a federal employee can carry out their job duties.

If the medical disability is not considered serious enough, or not fully supported by medical documentation and evidence, then OPM may deny the disability retirement application.

2. How Long is the Medical Disability Expected to Last?

The duration of a medical disability is very important when OPM makes a disability retirement decision. OPM generally requires that a medical disability be expected to last at least 1 year.

When considering whether to file for disability retirement, it is important for a federal employee to consider the expected length of the individual’s medical disability. Disabilities with shorter durations can be problematic for federal employees in the disability retirement process.

3. Is it Possible for the Federal Employee to Survive on a Reduced Annuity?

If a federal employee is considering filing for OPM disability retirement, it is important to understand that this type of retirement can provide a federal employee with a lower monthly retirement annuity in comparison to full retirement. Therefore, we recommend that a federal employee consult with a financial advisor about the impact of a potentially reduced annuity before filing for disability retirement.

The good news is that an individual approved for disability retirement can generally work again in the private sector (not in other federal employment) and supplement their income (usually up to 80% of their prior salary) without losing their disability retirement income.

4. Are There Reasonable Accommodations that can be Made to Allow the Federal Employee to Continue to Work?

Sometimes a federal agency will work with an employee to provide them with a reasonable accommodation (i.e., change in duties, assignments, hours, telework or other adjustments) that can make the employee’s current position and medical condition workable and thereby avoid the disability retirement process, although this is less common.

As a part of the disability retirement process, a federal agency is required to certify that it is unable to accommodate your disabling medical condition in their present position.

The agency must also certify that it has considered a federal employee “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassignment.” Federal agencies typically do not have an issue with such certifications.

5. Does the Federal Employee have Medical Support for Disability Retirement?

Medical documentation and evidence is the most important consideration for a federal employee when filing for disability retirement. We also find that physicians will usually help their patients in the disability retirement process.

When OPM reviews disability retirement applications, they rely heavily on a federal employee’s medical evidence. As a result, physicians and their medical opinions are crucial in the disability retirement application process with OPM.

OPM will require physicians’ statements about a federal employee’s medical issues, and these physician statements can either make or break the potential outcome in the disability retirement application process. It is important for a physician to understand a federal employee’s position description and how their disabilities interfere with their duties.

Conclusion

If you are in need of assistance in the federal employee retirement process please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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Legal Insider: Thin Line Between Social Media and Employment

This is a sponsored column by attorneys John V. Berry and Kimberly H. Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America in Reston that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

One of the most evolving areas of employment law today is how off-duty social media use is increasingly affecting employees and their employment. One of the most common misconceptions about employee off-duty social media use is that it is somehow protected by law and cannot subject an employee to discipline. In particular, there is a belief that the First Amendment protects speech made outside of work on social media.

This isn’t the case. The First Amendment generally does not protect this type of speech for private sector employees and only rarely does for public sector employees.

Recent Examples in the News

Some recent examples of the connection between social media and employment have made the news recently. In one example, a private school administrator was placed on suspension for making inappropriate comments to Attorney Michael Avenatti on Twitter. A second example involved a Dean at Catholic University who this week was suspended for making comments about a female complainant related to the Kavanaugh U.S. Senate Supreme Court proceedings on social media.

Few Protections for Employee Use of Social Media

We have seen similar kinds of social media use issues arise in workplace termination cases far more frequently these days. The use of social media by employees is generally not protected by the First Amendment which only protects individuals from government action, not actions of private employers.

Employees can be terminated for social media speech even if it was created with their private accounts and prepared after work hours. Many companies are increasingly receiving complaints about employees who make threatening or inappropriate comments on Facebook, Twitter or other social media outlets.

As a result, many employers are then taking disciplinary action against these same employees. As the law on social media evolves we may see some protections develop where an employer takes discriminatory action for a post or violates other state and federal laws.

However, right now there is little in the way of protections for employment actions taken due to social media postings.

As easy as it is for an individual to express an inappropriate comment on social media in a moment of frustration it is just as easy for someone who sees the comment to report it to an employer.

In this evolving world of social media and employment law, it is generally a good idea for employees to understand the thin line that exists between posting on social media in a moment of frustration and an employer taking disciplinary action against them.

Conclusion

When facing employment or wrongful termination issues in Virginia it is important to obtain the advice of and representation of an attorney.  Our law firm advises and represents individuals in wrongful termination matters in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at 703-668-0070.

Please also visit and like us on our Facebook and Twitter pages.

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Legal Insider: The Statement of Reasons Leading to Security Clearance Determinations

This is a sponsored column by attorneys John V. Berry and Kimberly H. Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America in Reston that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Many individuals come to us when they receive a document referred to as a Statement of Reasons (SOR) which federal agencies issue to individuals when considering the denial of their security clearance. A SOR can be issued to federal employees or government contractors currently holding or seeking a security clearance.

What is a Statement of Reasons?

A SOR lists the factual basis for potentially denying an individual’s security clearance. The SOR will list individual security concerns and provide the individual an ability to formally respond.

Typically, a federal agency will issue the SOR to the individual following the development of a security clearance concern. Subsequently, this security concern will be reviewed by the federal agency’s security office and either be cleared or proceed formally through the clearance adjudication process.

The SOR is the key document to analyze when attempting to avoid an adverse security clearance decision. For federal employees, agencies will generally attach the SOR to a cover letter that references the agency’s intent to revoke eligibility for the employees’ security clearance and provide it directly to the employee. For government contractors, the government will typically issue the SOR through the employer’s security officer.

The following is an example of a SOR issued for a federal employee based on personal conduct:

STATEMENT OF REASONS

Guideline E, Personal Conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

  1. a. On September 26, 2018 after a fellow employee accused you of theft in the office you engaged in aggressive physical conduct towards him and were subsequently detained by law enforcement.
  2. On September 27, 2018 you falsely recorded the amount of hours you worked on your weekly time sheet.
  3. On October 23, 2018, you lied to investigators when you falsely stated that you worked all of the hours you claimed on your weekly time sheet on September 27, 2018.

How to Respond to a SOR

If an individual receives a SOR, the key for a potential successful defense involves being able to refute the specific factual allegations or to mitigate them. This process begins with hiring an attorney to assist the individual in their response.

In the example above, since it is often the case that mistakes are made in SOR’s or that information is outdated, the first step is to determine from the individual whether the allegations themselves are true, i.e. whether they actually engaged in physical conduct, falsely recorded hours on their time sheet and/or was truthful with investigators during the investigation.

Accordingly, if the facts turn out to be true, the next task is to find out what mitigating factors could be helpful in explaining why the person should still be granted a security clearance.

To do this, one must review the National Security Adjudicative Guidelines for potential conditions that can mitigate the corresponding security concerns. Additionally, the Whole-Person Concept provides overall mitigation factors for security clearance matters.

For instance, in the example above, after reviewing the Adjudicative Guidelines and the Whole-Person Concept, there may be an argument that the issues raised were isolated incidents and do not reflect the overall character of the person.

Similarly, it would also be helpful to understand whether the employee reported the incidents to security officials prior to their discovery. Additionally, letters of character, charitable work, prior military service and/or good work performance can often help to demonstrate mitigation.

Overall, the key to responding to the SOR is to start with the factual allegations, provide a full synopsis of all facts involving each allegation, and then review the corresponding potential mitigating factors. Taking these steps will begin the process of properly preparing an effective response to the SOR.

Conclusion

We represent federal employees and government contractors in security clearance cases. Should you need assistance in a security clearance matter, please contact us by telephone at 703-668-0070 or through our contact page. Please also visit and like us on our Facebook and Twitter pages.

By John V. Berry, Esq.

Many individuals come to us when they receive a document referred to as a Statement of Reasons (SOR) which federal agencies issue to individuals when considering the denial of their security clearance. An SOR can be issued to federal employees or government contractors currently holding or seeking a security clearance.

What is a Statement of Reasons?

A SOR lists the factual basis for potentially denying an individual’s security clearance. The SOR will list individual security concerns and provide the individual an ability to formally respond.

Typically, a federal agency will issue the SOR to the individual following the development of a security clearance concern. Subsequently, this security concern will be reviewed by the federal agency’s security office and either be cleared or proceed formally through the clearance adjudication process.

The SOR is the key document to analyze when attempting to avoid an adverse security clearance decision. For federal employees, agencies will generally attach the SOR to a cover letter that references the agency’s intent to revoke eligibility for the employees’ security clearance and provide it directly to the employee. For government contractors, the government will typically issue the SOR through the employer’s security officer.

The following is an example of a SOR issued for a federal employee based on personal conduct:

STATEMENT OF REASONS

Guideline E, Personal Conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

  1. a. On September 26, 2018 after a fellow employee accused you of theft in the office you engaged in aggressive physical conduct towards him and were subsequently detained by law enforcement.
  2. On September 27, 2018 you falsely recorded the amount of hours you worked on your weekly time sheet.
  3. On October 23, 2018, you lied to investigators when you falsely stated that you worked all of the hours you claimed on your weekly time sheet on September 27, 2018.

How to Respond to a SOR

If an individual receives a SOR, the key for a potential successful defense involves being able to refute the specific factual allegations or to mitigate them. This process begins with hiring an attorney to assist the individual in their response.

In the example above, since it is often the case that mistakes are made in SOR’s or that information is outdated, the first step is to determine from the individual whether the allegations themselves are true, i.e. whether they actually engaged in physical conduct, falsely recorded hours on their time sheet and/or was truthful with investigators during the investigation.

Accordingly, if the facts turn out to be true, the next task is to find out what mitigating factors could be helpful in explaining why the person should still be granted a security clearance.

To do this, one must review the National Security Adjudicative Guidelines for potential conditions that can mitigate the corresponding security concerns. Additionally, the Whole-Person Concept provides overall mitigation factors for security clearance matters.

For instance, in the example above, after reviewing the Adjudicative Guidelines and the Whole-Person Concept, there may be an argument that the issues raised were isolated incidents and do not reflect the overall character of the person.

Similarly, it would also be helpful to understand whether the employee reported the incidents to security officials prior to their discovery. Additionally, letters of character, charitable work, prior military service and/or good work performance can often help to demonstrate mitigation.

Overall, the key to responding to the SOR is to start with the factual allegations, provide a full synopsis of all facts involving each allegation, and then review the corresponding potential mitigating factors. Taking these steps will begin the process of properly preparing an effective response to the SOR.

Conclusion

We represent federal employees and government contractors in security clearance cases. Should you need assistance in a security clearance matter, please contact us by telephone at 703-668-0070 or through our contact page. Please also visit and like us on our Facebook and Twitter pages.

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Legal Insider: An Insight Into Reasonable Accommodations for Employees in Virginia

This is a sponsored column by attorneys John V. Berry and Kimberly H. Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America in Reston that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Many Virginia employees have come to us to discuss the reasonable accommodation process when they develop a medical condition or disability that requires a change in their duties or other workplace adjustments. We advise and represent private, federal, state and county sector employees throughout Virginia in reasonable accommodation cases.

What is a Reasonable Accommodation?

A reasonable accommodation is an employee’s request to modify their employment conditions, assignments, hours, etc. to allow them to continue working in a position despite having a disability. Notably, the reasonable accommodation process applies to both employees and job applicants in all states, including the Commonwealth of Virginia.

Primarily, under federal law, the Americans with Disabilities Act (ADA), which applies to most employees, encompasses and outlines reasonable accommodations. More specifically, federal employees are also covered under the Rehabilitation Act, which incorporates similar protections as the ADA.

According to these laws, employers are required to engage in the reasonable accommodation process with qualified employees unless it would create an undue hardship for them.

In Virginia, many employees are also covered under the Virginians with Disabilities Act, which applies to most employers. Under both the federal and state laws, the goal of the reasonable accommodation process is to enable employees with disabilities the opportunity to enjoy an equal opportunity in employment. The Equal Employment Opportunity Commission (EEOC) provides guidelines for reasonable accommodation requests.

Requesting a Reasonable Accommodation

The most typical type of reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements.

Usually, an employee will ask for a reasonable accommodation by approaching their supervisor or human resources department, depending on the employer, and asking for one. Accordingly, a request for reasonable accommodation can be either formal or informal. For instance, depending on the employer, some have created specific forms covering reasonable accommodation requests; whereas, other employers simply involve informal verbal discussions between the employee and their immediate supervisor.

Regardless, once requested, there is usually a discussion about the reasonable accommodation requested. The discussion between an employer and employee is often called the “interactive process,” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request.

This process does not mean that an employer has to grant every accommodation sought (or even the specific one requested by the employee); rather, the employer is only required to make a good faith effort to accommodate a disabled employee.

There are far too many examples of reasonable accommodations to list here as they significantly vary based on an employee’s specific disability and their particular needs. However, the Job Accommodation Network provides examples of reasonable accommodations regarding specific medical conditions.

Conclusion

When an employee in the Commonwealth of Virginia needs to request a reasonable accommodation due to a medical condition, it is important to obtain legal advice and/or legal representation. Our law firm is ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process.

Should you need assistance in this process, please contact us by telephone at 703-668-0070 or through our contact page. Please also visit and like us on our Facebook and Twitter pages.

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Legal Insider: Elon Musk’s Use of Marijuana Raises Question of Whether Clearance Rules Apply Equally to All

This is a sponsored column by attorneys John V. Berry and Kimberly H. Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America in Reston that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Billionaire CEO of Tesla and SpaceX, Elon Musk, was recently videotaped smoking marijuana on the Joe Rogan talk show. According to reports, Mr. Musk holds a security clearance as part of his CEO role at SpaceX, a major government space contractor.

As a result, news reports first indicated that the U.S. Air Force has started an investigation into Mr. Musk’s alleged drug usage due to his holding of a security clearance.

Later, news reports indicated that there was not necessarily an investigation but that the U.S. Air Force was attempting to evaluate what to do about the issue. The question is whether or not the same rules governing every other clearance holder involving drug usage will apply to Mr. Musk if he did smoke marijuana.

My suspicion is that the answer will be no.

We often represent and defend individuals who have engaged in one-time or other minor illegal drug use (yes, the federal government still considers marijuana an illegal drug no matter where it is consumed).

Many individuals who engage in minor drug use may still lose their security clearance over even one usage, depending on the circumstances. The ultimate result will likely highlight the distinction between high level individuals and other clearance holders (the other 99%).

This sort of double standard was recently seen at the White House where the President’s son-in-law, Jared Kushner, apparently had so many foreign contacts that he had to amend his clearance submission (SF-86) multiple times (something that isn’t usually permitted for others).

The type of contacts that Mr. Kushner admitted to having, if they had involved just about anyone else, would have barred them from obtaining a security clearance.

We often represent individuals from Pakistan, Egypt, India or Taiwan, where having just a few relatives from their home country, or owning small amounts of property in that country can disqualify them from holding a security clearance.

It seems that there are now two sets of rules for security clearance holders and applicants. Those that are important or well-connected and then the rules for the rest of us. I find this to be troubling and very wrong.

In a case like Mr. Musk, it might usually take a year or perhaps over a year, for a person to be able to mitigate having engaged in even a one-time drug use issue. The point of having a system for adjudicating security clearances is to have ensure that everyone, a billionaire, the son-in-law of the President of the United States and Jim Jones (a GS-13 civilian employee for the Department of the Army) all live by the same rules.

Hopefully, the next President will see fit to take action in order to make the security clearance rules apply equally to all of us regardless of wealth or position.

We represent federal employees and government contractors in security clearance cases. We can be contacted at www.berrylegal.com or by telephone at 703-668-0070. Please also visit and like us on our Facebook and Twitter pages.

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Legal Insider: Wrongful Termination Rights in Virginia

This is a sponsored column by attorneys John V. Berry and Kimberly H. Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America in Reston that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We often meet with individuals that believe that they have been wrongfully terminated from their employer. When dealing with these types of employment issues, it is important to seek out the advice of a Virginia employment attorney knowledgeable in these areas of law.

Nothing is quite the same as being called into a supervisor’s office or to an employer’s HR office (usually on a Friday) only to be informed that their employment has been terminated.

In most cases, the employee is unaware of the pending termination and there is little advance notice. Once notice is given, the person is often quickly escorted out of the office and is faced with both a sense of shock and loss. Many employees are left bewildered, wondering about their rights.

Wrongful Termination Law in Virginia   

Employee terminations in Virginia are considered “at will”, which generally leaves it to the discretion of an employer to terminate an employee for pretty much any reason.

However, if the employer has violated a state or federal law in terminating the employee, the termination can be considered wrongful and there may be potential avenues to challenge the termination. These can include, but are not limited to:

  1. Whistleblowing Reprisal
  2. Discrimination (age, race, sex, national origin, etc.)
  3. Sexual Harassment
  4. Hostile Work Environment
  5. Violation of Employment Contract

Determine Your Legal Options

The first step that a Virginia employee should take if they believe that they have been wrongfully terminated is to make an appointment with a Virginia employment attorney to determine whether or not the action falls into the category of a “wrongful termination.”

It is also important to consult with an attorney to see what steps may be taken to minimize the career damage that has just occurred and whether the action taken may be appealable.

It is usually the case that employees have more options following a termination than are apparent to them initially. The employer may have broken (or bent) federal or Virginia laws with respect to the termination action. If so, then it may be possible to negotiate a resolution on behalf of the employee, with the employer, resolving the matter.

A resolution generally occurs more often when the employee retains an attorney to contact the employer about the inappropriate or illegal nature of an employee’s termination. An attorney may also be able to tell an employee if their termination does not meet the criteria for wrongful termination and offer other strategies.

Conclusion

When facing wrongful termination issues in Virginia it is important to obtain the advice of and representation of an attorney.  Our law firm advises and represents individuals in wrongful termination matters in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at 703-668-0070.

Please also visit and like us on our Facebook and Twitter pages.

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Legal Insider: Self-Reporting Duty for Security Clearance Holders

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent and defend security clearance holders and applicants in security clearance investigations and appeals. One of the lessor understood aspects of holding a security clearance is the continuing duty of a government contractor or federal employee to self-report new security issues which arise.

The federal government is slowly moving towards a system of continuous evaluation for security clearance holders, but there is still a duty for a clearance holder to self-report significant security concerns that arise between investigations.

This is often a misunderstood issue. Many government contractors and federal employees understandably do not want to essentially report themselves for new issues that arise and either don’t think about reporting new issues that arise or report them in the context of later filling out a new SF-86 or e-QIP application during the next background investigation.

It is very important to understand when issues should be reported and to do so promptly in many cases.

Types of Reportable Security Concerns

There are many potential types of security concerns that should be reported to the government contractor’s / federal employee’s security office. Each federal agency that issues security clearances offers their own guidance, which can vary, but remain mostly the same.

Some issues are harder to evaluate than others when it comes to deciding whether or not to self-report them, which is why counsel is often needed. Some examples of security concerns that may need to be reported as soon as possible include:

  1. An arrest (DUI, assault, any type of criminal issue, etc)
  2. Marriage to a citizen of another country
  3. Excessive unpaid debts (or bankruptcy)
  4. Certain civil lawsuits
  5. Use of illegal drugs
  6. Contact by a foreign country
  7. A wide variety of other security concerns (too many to list)

Results of Reporting a Security Concern

The first step in self-reporting a security issue is for the individual to notify their security officer. Documentation may be needed from the security office and/or an interview may then be needed.

As a result of self-reporting, a contractor or federal employee may need to deal with ramifications of a clearance review or investigation. That is not always the case and many incidents are noted simply for the security file and nothing else occurs. However, not reporting a security issue, when it is required, can create a greater likelihood that the individual will lose their security clearance because they will have to deal with both the underlying issue and also the fact that they have not reported the incident previously.

In many cases, self-reporting can be viewed as a mitigating factor in the clearance adjudication process.

Conclusion

When facing security clearance or employment issues it can be important to have the assistance and advice of counsel. If you need assistance with a clearance or employment issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation.

Please also visit and like us on our Facebook and Twitter pages.

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Legal Insider: Employment Investigations in the Workplace

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We have represented both employees and employers in connection with employment investigations. This article talks about the issues involved when an employer conducts an investigation in the workplace. Employers conduct workplace investigations into employee complaints generally because they can face legal consequences if they do not do so.

As an example, if an individual alleges sex harassment or discrimination at work and the claims are not investigated, an employer can be more readily held liable by employees. The same type of investigation is necessary when dealing with claims of whistleblowing or other alleged inappropriate conduct at work.

What Happens During a Workplace Investigation

Usually, in most employment investigations, the employer will usually hire an outside law firm (or occasionally use internal counsel) to conduct an employment investigation and will act as the investigator.

Once the investigator is appointed, they will start their investigation. Keep in mind that the employer’s goal in these investigations is to minimize liability for the employer.

While an investigator may find an individual employee at fault, the investigator ultimately wants to find and document that no fault on the part of an employer occurred.

The following steps usually take place in an employer investigation:

  1. The investigator reviews the complaint and plans for a thorough investigation;
  2. The investigator interviews the complainant or complainants;
  3. The investigator interviews the employees with knowledge of the issues in the complaint;
  4. The investigator interviews the accused employee or employees;
  5. The investigator conducts follow-up interviews of any witnesses as needed;
  6. The investigator reviews any relevant documentation, emails or other evidence involving the complaint;
  7. The investigator issues a final report with recommendations to an employer.

Results of Workplace Investigation

Once the employer’s investigation is over, the results can vary. A report is usually prepared, along with recommendations on actions to be potentially taken.

The investigation can result in the termination or other discipline for an accused employee. The investigation can also vindicate the accused employee.

An employer must be careful in avoiding retaliation against a complaining employee, even when their complaint is found to not be justified.

Each investigation is different, and different employers vary in how they handle workplace investigations. The proper handling of an employment investigation can protect employees in the workplace and also reduce employer liability.

Conclusion

If an employee or employer needs assistance with an employment investigation or other issue, please contact our office at 703-668-0070 or at our website to schedule a consultation. Please also visit and like us on Facebook or connect with us on Twitter.

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Legal Insider: Tips for Social Media and Employment

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

For the last few years, we have been advising employees on the proper use of social media in connection with their employment. Social media is one of the most unique and changing areas of employment law today. This article provides some basic tips for employees and a summary of their current rights in Virginia.

Social Media Tips — Things to Avoid

  1. Friends & Supervisors: Avoid (where possible) becoming friends or connected with supervisors (and sometimes co-workers). It has often been the case that we have had employees face discipline resulting from Tweets, Facebook or Instagram posts that even well-meaning individuals forward to the employer. For instance, we have seen posts ridiculing a supervisor eventually make it to the supervisor. It tends to create an atmosphere ripe for retaliation and discipline.
  2. Avoid Workplace Criticism: Avoid mentioning problems or other issues that arise at work. We have usually found that even a well-meaning friend can pass on information to a supervisor or company official that can lead to discipline or, at minimum, a less comfortable work environment.
  3. Don’t Discuss Company Clients or Projects: Avoid mentioning clients or other work specific information from your employer in your social media posts. Sometimes these clients get word of the post, see it online, or it makes the news. As a result, the employer often then takes disciplinary action against the employee.
  4. Avoid Social Media During Work Hours: While this may or may not be feasible for everyone, it is a good idea to avoid social media posting while at work. We have seen employees written up for social media posting during work hours or when using employer computers. In some cases, employers have argued, where social media posts include the time and date posted, that they have not been working their duties while getting paid.

Social Media Employee Protections in Virginia

Some states have begun to legislate initial protections for social media accounts held by employees. This is the case in Virginia. While the relatively new law in Virginia doesn’t protect an employee from the content that they post online, it offers some protection for employees. Specifically, it bars employers from demanding or requiring access to an employee’s social media information as part of their employment.

Virginia Code § 40.1-28.7:5 protects employees from employers (1) requesting their sign on information to media accounts; and (2) requiring an employee to add a company manager or representative as a friend or contact on the social media account. I suspect that we are only at the initial stages of the laws that will define employee social media protections in the workplace with more to come.

Conclusion

Keep in mind that not all companies take offense to social media posting and can have lax policies. The best idea is to find out company policy from the employer as early as possible. When facing employment issues it can be important to have the assistance and advice of counsel.

If you need assistance with an employment issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook page.

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