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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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Legal Insider: Severance Agreements

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.

Severance agreements are agreements that compensate an employee in exchange for their departure from an employment position.

Most employees are considered “at will,” which means they can resign and/or be terminated at any time. When employment ends, an employer may offer a severance package to an employee in exchange for the employee’s waiver of right to sue.

However, employers, in the absence of an employment contract, generally have no obligation to provide employees severance pay. If severance pay is offered, an employer will offer the employee a Severance Agreement.

Severance Agreements

A Severance Agreement is a contract between an employee and an employer that specifies the terms of an employment termination. Severance Agreements are also offered to employees who are laid off or facing retirement.

In addition, depending on the circumstances, a Severance Agreement may be offered to an employee who resigns or is terminated. The Severance Agreement must have consideration — i.e., something of value to which the employee is not already entitled.

Employers are usually required to provide an employee time to consider the Severance Agreement before signing. An employee typically has a 21-day consideration period to accept an employer’s Severance Agreement unless the employee is over 40 years of age.

The Older Workers Benefit Protection Act (OWBPA) requires that an employer provide employees over 40 years of age with a 45-day consideration period and at least a 7-day revocation period.

There are various ways that Severance Agreements are used:

  • An employee is terminated and the employer then offers a Severance Agreement;
  • An employee has been terminated, no Severance Agreement was proposed by the employer but the employee approaches the employer seeking one; or
  • An employee wants to resign and seeks to negotiate severance.

Some of the issues to consider in a Settlement Agreement may include, but are not limited to the following:

  • Financial terms
  • Tax consequences and timing of severance payments
  • Confidentiality
  • Continuation of employment benefits
  • Rights to unemployment compensation
  • Release of Claims
  • Non-Disparagement
  • Re-employment possibilities
  • Scope of non-competition
  • Preservation of trade secrets
  • References
  • Recommendation letters
  • Applicable law
  • Consequences of violating the Severance Agreement

Severance Agreements often include a General Release (Waiver) that stipulates the employee cannot sue his or her employer for wrongful termination or attempt to seek unemployment benefits.

Before an employee signs a Severance Agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the Severance Agreement.

Conclusion

When facing a severance agreement it can be important to have the assistance and advice of counsel. If you need assistance with such an agreement or other 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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Legal Insider: Future Employment Laws Hopefully Coming to 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.

A number of states serve as laboratories for new employment laws that eventually make it to the Commonwealth of Virginia and other jurisdictions.

As we go through 2018, there are a number of new employment laws and bills that have been proposed or enacted by different states to improve employment conditions for employees. It should be interesting to see which ones eventually get enacted by Virginia or other counties and municipalities.

Here is a sampling of 5 new state employment laws in various jurisdictions:

1. Parental Leave: California has enacted a new law (SB 63) which requires businesses with at least 20 employees to provide 12 weeks of unpaid and job protected family leave for employees to bond with a new baby, an adoptee or for a foster care placement. The law would also prohibit an employer from refusing to pay for regular health care costs during the period of family leave.

2. Employer and Salary Information: California has enacted (AB 168), a new law which would prohibits an employer from seeking the salary history information of an applicant or relying upon the applicant’s salary history information as a factor in hiring or in setting an appropriate salary. Connecticut has passed a similar law (PA 18-8)

3. Social Media Information Protection Law: Vermont has enacted a new social medial privacy law (21 V.S.A. § 4951) which prohibits employers from requesting or requiring an employee to turn over their social media account information or to allow employer access to their social media accounts.

Virginia has been ahead of many states in these types of protections, enacting their own version of social media protection for employees (Virginia Code § 40.1-28.7:5). The new Vermont law has more enforcement mechanisms than the Virginia law should an employee be affected.

4. Ban the Box — Prior Criminal Conviction History: California has enacted a new law (AB 1008) which prohibits employers with more than 5 employees from asking applicants about criminal convictions on employment applications or at any time prior to receiving a conditional offer of employment.

After an offer has been extended, the employer may deny employment based on prior convictions, but must provide the applicant due process before a final decision is made. The new law also prohibits employers from considering or disseminating information about prior arrests not leading to convictions when conducting background checks.

5. Sexual Harassment/Domestic Violence Leave: California (AB-2366), New York and a number of other states have put forth bills that would give or enhance the ability of victims of domestic violence, sexual assault or stalking to use leave or receive accommodations from employers without being subject to retaliation.

Conclusion

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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Legal Insider: Workers in the Gig Economy Start to Get Employment Rights

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.

A substantial portion of the workforce has flocked to new types of employment, such as working for Uber, Lyft, GrubHub, TaskRabbit and others.

These employees have largely been classified by employers as contractors, instead of regular employees, to avoid paying their employment taxes and providing benefits. However, this may be starting to change with a recent decision from California.

“Gig” or “New economy” workers, such as drivers for popular driving services like Uber and Lyft, appear to be seeing a shift in their employment status under a new decision from the Supreme Court of California.

The case will make it significantly more difficult for companies in California to classify these drivers as independent contractors and avoid paying them wages and benefits as required by state law and may start a trend in other states, like Virginia.

Court Issues ABC Test

The California Supreme Court ruled in favor of workers for a document delivery service company, called Dynamex Operations West, who were seeking employment status.

The drivers for the delivery service brought their case to court several years ago, arguing that they were required to wear the company’s uniform and display its logo, while providing their own vehicles and incurring all the costs associated with the deliveries.

In the Dynamex case, the court instituted what it called the ABC test to determine whether workers should be considered employees or contractors using new and specific criteria.The new test presumes individuals are employees unless the company proves the following three criteria used to classify the individual as an independent contractor:

  • The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  • The worker performs work that is outside the usual course of the hiring entity’s business; and
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

It is believed that this decision will have a significant impact on companies that use independent contractors, such as Uber/Lyft, Amazon, Instacart, GrubHub and TaskRabbit. Notably, the decision could require such employers to apply this “ABC test” to their drivers and couriers, representing a change in the regular tests that typically apply to these types of employers.

Some other state courts have also begun adopting this new ABC test to determine employee status in light of changes to the types of employment in the new economy.

Conclusion

When facing employment issues it is 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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Legal Insider: Financial Issues Can Affect Security Clearances

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.

Financial security concerns are the most common issue resulting the loss of of a security clearance. As a result, it is important that when a security clearance applicant or holder runs into financial issues that they act preemptively to protect their clearance.

In security clearance cases, financial issues are referred to as Guideline F cases. In Guideline F cases, the government’s concern is generally focused on how a person has handled his or her finances and/or his or her vulnerability to financial manipulation given a pattern of overspending or debt. The criteria for evaluating such cases are covered in Security Executive Agent Directive (SEAD 4)

Here are 7 tips for clearance holders or applicants when dealing with financial debts and other issues:

1. Stay Current on Debts and/or Make Arrangements with Debtors.

Most security clearance clients seek our assistance when they have had multiple bills that are past due, delinquent, in collections or have been charged off. In some cases, the debts have been ignored.

In Guideline F cases, the existence of multiple, unpaid debts seems to be the most usual reason for the loss or denial of a security clearance. It is important to gain control of your finances in such situations in order to attempt to keep your security clearance.

2. Pay and File your Taxes.

Individuals in tax trouble or who fail to pay and/or file their taxes take a big risk in losing their security clearance. Tax issues tend to be viewed as more significant for security clearance purposes than regular debts because they are owed to the government.

If outstanding taxes or tax liens are too much for the individual to pay off all at once, it is important to try to work out a resolution plan with the IRS or state tax agency and show good faith towards resolving these debts in order to keep or obtain a security clearance.

3. Keep an Eye on your Credit Report.

Oftentimes, an individual has encountered difficulties in the security clearance process because incorrect information is listed on his or her credit reports.

Errors in credit reports are quite common. As a result, it is important for an individual applying for or holding a security clearance to keep a watchful eye on his or her credit report for errors and potential problems and to dispute debts that do not belong to the person.

4. Work with Creditors.

It can be easy to ignore a creditor, especially where the debt is part of a dispute, but it is always better for a clearance holder or seeker to get ahead of his or her credit problems than to wait until he or she receives notice of a possible denial of a security clearance.

An individual who recognizes a debt problem or allegation early and works towards resolving it early and before a clearance issue is raised tends to be given more credit towards the granting of the clearance as opposed to an individual who starts the process after he or she receives notice of the potential loss of the clearance.
Even if a creditor is non-responsive, it is important to try multiple times to communicate with the creditor in an effort to resolve these issues.

5. Credit Counseling and Classes Can Help:

If an individual falls behind in his or her debts, or taxes it is still important to show how that individual is working (or has worked) to get back on a healthy financial track in order to alleviate concerns about the individual’s ability to hold a security clearance.

Taking meaningful credit classes or engaging in credible credit counseling can help mitigate security concerns in such cases.

6. Report Major Financial Issues to Security Officers:

If and when major financial issues arise, it can be important to report them, in advance, to an individual’s security officer. Doing so in appropriate situations can be used as evidence of mitigation for security concerns. For example, if a bankruptcy arises, that is an important issue that should be raised with a security officer.

7. Demonstrate Financial Stability:

When and if security concerns under Guideline F arise, be prepared to demonstrate that the individual lives within their means, has developed a policy for dealing with spending and debt (e.g. budget planning). The more that an individual can show that they live within a manageable financial lifestyle, the better.

Conclusion

When facing financial consideration security concerns it is important to have the assistance and advice of counsel. If you need assistance with a security clearance 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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Legal Insider: Response to Proposed Discipline

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.

We defend federal employees in proposed disciplinary actions. When a federal employee is facing proposed discipline it is important for them to speak with an attorney knowledgeable in federal employment law for legal advice and representation. This article outlines some brief thoughts for federal employees as they respond to proposed disciplinary actions.

Types of Proposed Discipline

Most proposed disciplinary or adverse actions for federal employees fall into 3 general categories for federal employees: (1) proposed suspension or demotion actions based on misconduct; (2) proposed removal actions based on misconduct; and (3) proposed removal actions based on performance deficiencies (i.e. a PIP).

Proposed Disciplinary Action

When a federal employee receives a proposed disciplinary action (suspension of 14 days or less) or an adverse action (suspension of over 14 days to removal), they should read over the notice very carefully. Each federal agency sets their own deadlines for submitting responses and requesting information relied upon and these deadlines are usually strict.

Along with a copy of the proposed discipline, when it is issued, the federal agency may provide an employee a copy of the materials in the evidence file (documents, reports, emails, recordings, video, photographs, etc) that they are relying upon in proposing the action (often referred to as the “information relied upon.”).

It is critical for a federal employee to request and obtain these materials prior to responding in writing or orally.

Response to the Proposed Disciplinary Action

It is important for a federal employee to not only submit a comprehensive written response, along with documentation (affidavits, character letters, statements or other evidence) refuting the charges and specifications or in providing arguments for mitigation, but also to request an oral response.

The Written Response

The written response to a proposed disciplinary action should address all of the allegations raised in the proposed discipline, in addition to providing records of the employee’s good performance/work records, and other commendations for use in potential reduction of any penalty.

While it is very important to both rebut or respond to the allegations, it is equally important to make arguments under the Douglas factors for purposes of reducing the penalty (e.g. reducing a proposed removal to a suspension).

The purpose of mitigation arguments are to show why the federal employee, even if some or all of the charges are true, should receive a less harsh penalty than proposed.

The Oral Response 

In addition, the oral response presentation by the federal employee and his or her counsel should be straightforward and to the point. An oral response generally lasts anywhere between 30 minutes to an hour and a half depending on the nature and number of allegations made and the mitigation arguments that need to be presented.

A federal employee should generally not repeat or read from their written response, but rather highlight key arguments to the Deciding Official as to why the proposal is not warranted and to focus on potential mitigation arguments.

Mitigating Factors (Douglas)

While noted above, it is important to address mitigating factors in the response stage. Mitigating factors are just considerations that should warrant the reduction of any proposed penalty (e.g. good performance, no prior discipline, etc.).

Mitigating factors were specified in the case of Douglas vs. VA, 5 MSPR 280 (1981), which established the appropriate way to review a potential penalty in a disciplinary case. There are 12 Douglas factors, which can be found here.

The Decision

Following the response, the Deciding Official will issue a final decision on the proposed discipline.

Usually, when a decision on the proposed discipline has been made the federal employee they will be called into the Deciding Official’s office and given a copy of the decision, along with a description of any appeal rights in the decision.

Depending on the severity of the discipline issued by the Deciding Official, along with the underlying basis for it, a federal employee may have one of more venues in which to appeal. Some federal employees may be able to appeal a disciplinary action to the Merit Systems Protection Board (MSPB), the grievance/arbitration procedure, the Equal Employment Opportunity (EEO) process, or perhaps file a whistleblower defense.

Our law firm represents and advises employees on employment-related matters in the District of Columbia and Virginia. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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Legal Insider: Security Clearance Upgrades Can Lead to Loss of Existing Clearance

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.

When an individual with a security clearance is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized again, but at a higher level.

For instance, if an individual has been previously approved for a Secret level clearance and is then submitted for a Top Secret (TS) level clearance by their employer, the individual could be denied based on the same concerns that existed when he or she was approved for a Secret level clearance.

This more often occurs when the individual holds a Top Secret (TS) clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.”

Clearance Upgrade Dilemma

One common problem with security clearance upgrades occurs when an employer submits a request to upgrade an individual’s security clearance (e.g., from Secret to Top Secret).

Sometimes the individual is made aware of the requested upgrade by the employer and sometimes he or she is not. It is possible that an individual can be approved for a lower level security clearance with existing security concerns, but that he or she can still be denied when submitting for a security clearance upgrade even if there are no new security concerns.

As an example, suppose an individual is approved for a Top Secret security clearance by the Department of Defense (DoD), after mitigating some security concerns about past due debts or bad credit, and is then submitted for SCI access at an intelligence agency.

The intelligence agency may consider those debts more serious than the DoD, and deny the person SCI access approval based on the same financial issues that were first resolved favorably when the individual applied for his or her Top Secret clearance.  This upgrade denial can potentially have significant consequences.

Result of Unfavorable Upgrade

The result of a clearance upgrade denial might be that the individual, at best, likely has to list the prior denial in future clearance applications, and at worst, could cause the individual to lose (or have to defend) his or her existing security clearance.

Depending on the employer and federal agency involved, there are appeals processes to challenge the clearance upgrade denial, but it is something to seriously consider if there are security concerns in one’s background and a clearance upgrade is proposed.

Conclusion

It is important to consider the impact of upgrading a security clearance or security access before applying when there are previous security concerns at issue. Individuals should consult with counsel if they have any security concerns at issue.

If you need assistance with a severance agreement or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.

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Legal Insider: Benefits of Resolving Employment Disputes Without Litigation

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.

While it is not always possible to avoid litigation in employment cases, resolving an employment dispute without litigation, if possible, is strongly recommended and should be considered by both employees and employers.

We have represented both employees and employers and the benefits of resolution usually far outweigh the lengthy litigation process. Some benefits to consider include:

1. Avoid Extended Litigation: We have had employment cases in extended litigation that take between three to six years in the court process.

When going into an employment case, an employee and employer should consider whether it makes sense to litigate these types of cases over such a potentially long period of time.

Usually, employees do not want to have such a long period of uncertainty to their career, and an employer does not want to spend $50,000 to $100,000 (or more) litigating an employment case. Employers can also have similar uncertainties about staffing while a case is pending.

2. Limiting Costs: Extended litigation can cost a lot of money for both employees and employers.

Employees usually pay for these fees out of pocket and employers either pay these fees out of pocket or through increased premiums in their use of insurance defense policies.

Some of our most satisfied clients are those who have decided to resolve their disputes early in the process and save themselves money. They may reach a compromise that is not perfect, but sometimes it is far better than the result of the litigation.

3. No Stress from Discovery: Because we have taken a number of depositions over the years of managers, witnesses and employees, we can tell you that going through the discovery process can take a stressful toll on both employers and employees.

The former employee often undergoes a high level of stress in telling his or her story to an opposing attorney who is looking to disprove their account through questioning.

For employers, it is no better because managers also get stressed about telling the truth while being loyal to the company. Managers also tend to be far less productive at work when they’re under this type of stress.

For both sides, discovery also means going back through emails (sometime work, sometimes personal emails) and other documents and producing them to the other side.

4. Possibility of Better Outcomes: Settling claims early, as opposed to later in the process, can often lead to better outcomes.

Sometimes a less than perfect resolution offered early looks great in hindsight after the parties have spent additional thousands of dollars in the litigation process. Employees and employers typically risk little by trying to resolve a dispute early. If the attempt fails, then litigation usually remains an option.

The key to a realistic attempt at settlement is for both parties to leave their feelings out of the process and try to reach a compromise. Another key is that employees and employers should instruct their attorneys, if they want to try to settle early, that they want to try to reach a compromise.

Unless employees and employers take this step, attorneys often go through the process of presuming that litigation is certain and make little attempt to resolve things prior to litigation.

Some cases need to be litigated in court, but the vast majority should really be resolved through settlement when possible. It generally yields better results for both employers and employees.

Our law firm represents and advises employees and employers on employment-related matters in the District of Columbia, Maryland and Virginia.

If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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Legal Insider: U.S. Women’s Hockey Team Wins Gold on Ice After Equal Pay Demand and Win

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.

The U.S. Women’s Hockey Team not only just won Olympic Gold, but significantly advanced the equal pay argument for all women.

Their victory and Gold Medal ended a difficult year on and off the ice for the team. They worked together despite almost losing their positions on the team in a hard fight for equal pay before the most recent Olympics in Pyeongchang, South Korea.

In March 2017, about twelve months before the Olympics, the U.S. Women’s Hockey Team threatened to sit out of the Ice Hockey Federation World Championship unless USA Hockey agreed to treat them the same as the U.S. Men’s Hockey Team. The female hockey players sought equal treatment in comparison to the men’s team. Specifically, the U.S. Women’s Hockey Team sought the same salary, equipment, staff, travel, per diems and media publicity as the U.S. Men’s Hockey Team.

It is hard to believe that the dispute lasted nearly a year, but the U.S. Women’s Team won. They were awarded up to $70,000 a year in salary (up from $6,000). USA Hockey also agreed that the women’s hockey team would receive the same travel stipends and accommodations as the men’s hockey team, along with better marketing and media efforts.

In our practice involving equal pay, we are seeing more women employees challenging and demanding equal pay for equal work.

In April of 2016, we wrote about a similar challenge that was advanced by the U.S. Women’s Soccer Team, despite the fact that they had already won the World Cup in 2015.

The combined efforts of the U.S. Women’s Hockey Team and U.S. Women’s Soccer Team illustrate the fact that collective action and success by women can be key to eliminating egregious pay disparities for the same work. Their efforts also have a direct and positive impact on all other types of employment and equal pay disputes.

We represent employees in Equal Pay matters. If you need assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.

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Legal Insider: Security Clearance Preferences Start to Fade

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.

Not too long ago, maybe 5 years or so, there were clearly two groups of individuals that would apply for security clearances.

There would be a group of individuals at the highest levels of our government that would be allowed to obtain security clearances despite having very significant security concerns, and then there was everyone else (federal employees and government contractors) that had to go through a often lengthy clearance appeals process to obtain a security clearance with nearly the same issues, sometimes going months without pay while they wait.

This disparity, in this author’s opinion, is starting to fade. In my interview last Thursday with Wolf Blitzer on Inside Politics about the emerging Rob Porter crisis, I spoke about the disparity that exists between highly placed employees (e.g. White House) and most of the rest of employees and contractors that attempt to obtain security clearances.

It occurred to me as I was speaking that we, as a society, may have reached critical mass on this issue. Perhaps it was inevitable due to increased use of social media (Facebook, Twitter, etc.) or just the society we live in today, but change is definitely on the horizon.

It was not too long ago that I would represent security clearance clients at both sides of the spectrum with nearly identical security concerns (e.g. prior drug use, assault allegations or financial issues), where they were treated differently.

Too often, the higher-level employees I represented (usually appointees) would be treated more preferentially than other federal employees or contractors. I always felt that, in that sense, the clearance process was unfair. It certainly doesn’t follow the principles in Executive Order 12968.

In any event, with the recent scrutiny involving the White House security clearance process for Robert Porter and Chief of Staff John Kelly, along with other recent issues and trends, I think that the tide has started to turn.

I believe that we are moving towards a future where employees seeking to obtain a security clearance, at all levels, will start to be treated more similarly. I think that the fear of not doing so, and then being called on it later in social media, may help enforce this; that is a good thing.

I enjoy representing all types of employees and appointees in security clearance matters, but feel that the process should be fairly applied across the board.

Our law firm represents and advises employees on security clearance matters nationwide. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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Legal Insider: New Virginia Legislation Introduced Regarding Workplace Violence

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.

Virginia Delegate Chris Hurst has introduced new legislation that he hopes will reduce incidents of workplace violence in the Commonwealth of Virginia. Specifically, the proposed legislation would grant civil immunity to employers who share information about violent acts or threats made by current or former employees with potential employers or law enforcement.

In addition, a job candidate would not be able to sue a current or former employer for sharing his or her previous violent or threatening behavior with a prospective employer that will impact a hiring decision.

Delegate Hurst’s House Bill (HB 1457) would allow hiring managers to openly discuss job candidates with their current, prospective or former employers. The text of the proposed law reads as follows:

  • 8.01-226.10:1. Immunity of employers and potential employers; reports of violent behavior.
  1. Any employer who, in good faith with reasonable cause, makes or causes to be made a voluntary report about violent or threatened violent behavior, by an employee or former employee to a potential employer of such employee, or to any law-enforcement officer or agency, shall be immune from civil liability for making such report, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer knew such report was false, or made such report with reckless disregard for whether such report was false or not.
  2. Any potential employer who receives a report from an employer pursuant to subsection B of an employee or potential employee and takes reasonable action in good faith to respond to the violent or threatened violent behavior noted in such report shall be immune from civil liability for such action.
  3. Any employer or potential employer who has a suit dismissed against him pursuant to the immunity provided by this section shall be awarded reasonable attorney fees and costs.

Understandably, former employers would like the freedom to discuss workplace incidents by former employees with other employers without being subject to potential liability. However, some problems with this potential law relate to how to do so in a way that protects an employee’s rights or does not place him or her on some type of permanent “do not hire” list. Oftentimes, employees are wrongfully terminated or accused of significant misconduct (even about alleged threats) that is not true. As a result, some supervisors or employers may feel free to exaggerate or retaliate against a former employee under this new law.

The new proposed law requires the employee or applicant to prove by clear and convincing evidence that any false comments were known to be false or made with reckless disregard. A better route would be to lower this standard due to former supervisors or employers who make it difficult for a former employee to get a job by making false statements about him or her.

Something should be done to help alleviate workplace violence, but the proposed legislation may not be enough to ensure the protection of employees given that an employer could potentially pass false information against a former employee that could cause him or her to not get hired.

Our law firm represents and advises employees on employment-related matters in the District of Columbia, Maryland and Virginia. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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