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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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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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