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

Our firm defends security clearance holders and applicants (federal employees, government contractors, and military personnel) when security issues arise. Here are some tips to consider when starting the security clearance process:

1. Consult with an Attorney for Legal Advice When Issues May Arise: It is important to consult with an attorney as early in the process as possible if there is the possibility of negative security issues arising. An individual has the best chance of resolving security concerns when they recognize a potential security concern and seek legal advice early. Doing so at the beginning of the clearance process usually maximizes the ability of an individual to mitigate any security concerns. When an individual has serious security concerns the longer they wait for legal advice the more difficult overcoming the issues may become.
2. Answer Security Clearance Forms Carefully: It is pretty common for individuals to receive clearance denials because they did not adequately read the questions or proofread their responses on the SF-86/e-QIP before submission. Additionally, many questions on security clearance forms can be confusing which can lead to incorrect responses. A mistake on security clearance forms can lead to an assumption that the individual has not been truthful in their application.
3. The Importance of Truthfulness: When an individual is not truthful during the clearance process it not only can bar the individual from receiving a security clearance but can raise a host of other legal issues. For example, it is a lot easier for a security clearance lawyer to mitigate security clearance concerns involving prior drug or alcohol usage, than it is to defend against an allegation that the individual was not truthful in their clearance application or interview about these issues. A potential caveat here might be if the issue involves alleged criminal activity so it is important to consult with counsel.
4. Prepare for an Investigative Interview: If an individual knows that there is a good chance that problem areas exist in a security clearance application, he or she should expect to be asked about the areas in advance by the assigned investigator. Preparation (and practice) for the interview can help prepare for any problem areas in advance.
5. Don’t React Defensively in Interviews: When asked about problem areas in a security clearance application by an investigator, do not react defensively. It is important to be calm and positive about the issues when speaking to an investigator. This is why we generally recommend preparing with counsel for a security clearance interview if there are significant security issues that may be raised. Arguing or acting defensive with an investigator will never benefit an individual in a security clearance investigation.

Contact Us

When potential security clearance issues arise, it is important to obtain the advice of an experienced security clearance lawyer as early in the clearance process as possible. Our law firm advises and represents individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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.

We represent federal employees in OPM disability retirement matters. Disability retirement for federal employees is one of the most common forms of retirement cases that we handle before federal agencies, the Merit Systems Protection Board (MSPB) and the Office of Personnel Management (OPM).

Federal employees filing for OPM disability retirement are covered by either the Federal Employees Retirement System or the Civil Service Retirement System. When considering OPM disability retirement there are a number of questions that a federal employee should consider as they contemplate whether to file for federal disability retirement. These considerations can include the following:

1. How serious are the federal employee’s medical issues (and are they linked to the federal employee’s position description duties)?

When making a disability retirement decision, a federal employee should keep in mind that OPM evaluates an individual’s continued ability to work with their medical condition in the context of the duties described in their position description (PD). If the medical disability is not deemed serious enough, or not fully supported by medical documentation or other evidence, and is not sufficiently linked to their inability to “usefully and efficiently” carry out their PD duties, then OPM may deny the disability retirement application.

2. How long is the medical disability realistically expected to last?

OPM requires that a medical disability be expected to last at least one year in duration. When considering whether to file for OPM disability retirement, it is important for a federal employee to evaluate the expected duration of their medical disability. Disabilities with known shorter duration could be problematic in the application process.

3. Can the federal employee 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 usually provides an individual with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that federal employees obtain a benefits estimate from their human resources representative and consult with a financial advisor about the impact of a potentially reduced annuity prior to filing for disability retirement. It is important to evaluate one’s ability to support themselves on a reduced annuity before filing for OPM disability retirement.

4. Can changes to a federal employee’s position be made to allow the employee to continue to work?

It can be the case that a federal agency will work with a federal employee to provide them with a reasonable accommodation (i.e. change in hours, duties, telework or other possible accommodations) which can make a federal employee’s current position and medical condition workable. This may alleviate the need to file for OPM disability retirement. As a part of the OPM disability retirement process, a federal agency is required to certify that it is unable to accommodate a federal employee’s disabling medical condition in their present position. The federal agency must also certify that it has considered them “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.” Usually, this does not present a major hurdle to obtaining OPM disability retirement.

5. Does the federal employee’s medical professionals support the disability retirement application?

Medical support can be an important factor when filing for disability retirement. In most cases, physicians will be open with their patients about whether it is a good idea to keep working in their current federal employment position. Typically, most physicians are supportive of such applications.

There are at least two good reasons for a federal employee to discuss their possible filing for OPM disability retirement with their treating medical providers in advance. First, a federal employee’s health should be of primary importance and consideration when determining whether continuing in a particular position hinders or impedes their medical recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the OPM disability retirement application process.

OPM will require a physician’s statement about a federal employee’s medical condition, and the physician’s statement can often make or break the outcome of an OPM disability retirement application. Sometimes, a federal employee can seek an outside medical expert opinion to support their application for disability retirement, but it is very important to also include a longtime treating physician or other medical professional where possible.

When considering whether or not to file for OPM disability retirement, it is important to obtain the advice and representation of legal counsel. The OPM link for disability retirement is located here. You can contact our law firm through www.berrylegal.com or by telephone at 703-668-0070 to schedule a consultation to discuss your individual disability retirement matter.

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 issues are one of the most common security concerns for security clearance holders or applicants. When facing financial issues, it is important to be proactive in attempting to rectify them before they become a reason for the loss of a security clearance. When you run into these issues, it is important to hire a security clearance lawyer to advise you.

Financial issues are often called “Guideline F” cases in security clearance cases. In Guideline F cases, the Government’s concern involves how a person has handled his or her finances and their vulnerability to financial manipulation. The criteria for evaluating such cases are covered in Security Executive Agent Directive (SEAD 4) (pages 15-16).

Here are 5 tips for security clearance holders or applicants when dealing with financial debts and other issues:

1. Remain Current on Debts

This can be easier said than done. 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 financial cases, the existence of multiple unpaid debts is one of the most common reasons for denying a security clearance. The first step is to quickly work to resolve major debts to avoid security clearance issues.

2. Work with Creditors (or at Least Attempt to)

A debt cannot always be paid off in full immediately. Additionally, it can be easy to ignore a creditor, especially where the debt is too high or disputed, but that is not a good idea. Clearance holders or applicants who attempt to resolve a debt are far better off than those who ignore it. Sometimes creditors do not return calls or are unreasonable, but the key is to document all of the steps taken to resolve a debt. Even where a creditor is unwilling to respond or resolve matters, this can be very important. It is often the case that a creditor will settle a debt with an individual. Clearance holders or applicants should attempt to work with creditors where possible to resolve their debts. All documentation about such efforts should be retained for possible use later.

3. Stay Current with Taxes

Clearance holders in tax trouble or who fail to pay and/or file their taxes take a major risk in losing their security clearance. This risk increases if the issue affects multiple tax years. Tax issues are viewed more significantly for security clearance purposes because they are debts owed to the Government. The Government focuses on both taxes owed and whether or not tax filings were completed on time.

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 with the IRS or state/county tax agency. All efforts showing good faith work to resolve tax issues can be helpful if a security clearance issue arises. We often recommend involving a tax attorney or accountant, depending on the severity of the tax issues.

4. Report Major Financial Issues to Security Officers

If 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 these security concerns. For example, if a bankruptcy arises, it is important to report that to a security officer. If a clearance holder needs to report a financial issue they should consult with counsel immediately to determine the best course of action.

5. Show Financial Stability

When financial security concerns arise, it is helpful for security clearance holders and applicants to show that their finances are being managed well. It is important to show that the individual has a budget, lives within their means, and has a plan for paying off major debts.

Contact Us

When facing financial security concerns it is important to consult with a security clearance lawyer. 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.

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

Our lawyers defend government contractors (private employees that work for government contractors) in debarment cases before federal agencies like the Department of Defense and others.

What is a Debarment?

Debarments are government actions taken against government contractors related to conduct. It is the government’s duty to protect itself from alleged fraud, waste, and abuse by ensuring that it avoids doing business with non-responsible contractors. Debarments can last a period of years. Suspensions result in temporary contractor ineligibility to work on government contracts. Suspensions and debarments are not for the purpose of punishing a government contractor but to protect the public.

Effect of Debarments and Suspensions

Debarments and suspensions have a major impact on individual government contractors. These can include removal from a government contract (and potential termination from employment) and potential security clearance issues. Government contractors that are debarred or suspended are not eligible to work on government contracts, unless a compelling reason exists, which can be a very high bar to meet. The government takes a straightforward approach to debarment cases and provides a fair appeals process.

Typical Reasons for Debarment (of Suspension of Eligibility)

The most common reasons for debarment or suspension include:

• Criminal Convictions or Pending Charges
• Civil Judgments and/or Liens
• Evidence of Crimes
• Specific Misconduct (e.g. time and attendance mischarging)

Debarment/Suspension Process

At the start of the disbarment process, the government will issue a show cause letter requiring a government contractor to demonstrate why they should not be suspended or debarred. These proceedings are completed relatively quickly, and individual government contractors must respond in order to avoid a negative outcome.

The government will generally provide a show cause letter to the individual and an initial chance to respond to the allegations, along with a memorandum in support of the proposed debarment. If the case proceeds, the individual contractor will have to respond to a notice of proposed debarment from the government.

Responding to Debarments

In responding to a notice of proposed debarment, it is important to fully address all allegations of misconduct or impropriety, and hire a debarment lawyer to assist them. We often find it helpful to submit letters of support on behalf of the individual, awards, commendations and other materials which demonstrate the character and integrity of the individual.

Additionally, cooperation in related investigations, completion of ethics training in a relevant area, acceptance of responsibility and other mitigating arguments should be made to the Debarring Official. These may help to convince the government that debarment is not needed or that mitigation to some other penalty is appropriate.

Following the response period, a decision will be rendered by the Debarring Official. They can uphold, mitigate, or terminate the debarment. Further, if a negative finding is upheld, there is sometimes the ability to seek reconsideration of a negative debarment finding. The process can involve contacting the Debarring Official with new or other evidence and seeking to reduce the debarment.

It is important to have legal representation in this process. If a negative finding is reached, leaving the person debarred from government contracts, that finding will be placed in the debarment database, known as the System for Award Management (SAM).

Contact Us

If you are in need of legal representation in a proposed debarment or debarment appeal please contact our office at 703-668-0070 or through our contact page to schedule a consultation.

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 Melissa L. Watkins, Esq.

Performance Improvement Plans (PIPs) can be a dangerous proposition for federal employees.

Federal employees who realize that a PIP is being considered, should be wary and consult with a federal employment attorney early on to make sure they maximize their chance of surviving a performance related action. In our experience, an employee being put on a PIP is usually heading towards more serious disciplinary action, such as demotion or removal.

Federal employees often will be told that a PIP is only designed to benefit them and make them better performers. Managers often promise employees that they will be given special assistance to ensure they are successful during a PIP period, only for the employees to later find themselves facing a potential demotion or removal some months later having not received any of the promised assistance during the process. In many ways, the deck is stacked against the employee when facing a PIP.

Opportunity to Improve

If an employee is said to be having performance issues, before an agency can take any action to demote or remove the employee, the agency must notify the employee of the concern and give the employee an opportunity to improve. This notification and opportunity to improve is usually accomplished by the agency placing the employee on a PIP. Through the PIP, the agency must inform the employee what performance is not acceptable, what critical performance element(s) are at issue, what standard the employee must meet to be found acceptable, and provide a warning to the employee that if their performance does not reach an acceptable level, the employee could be demoted or removed.

What To Do If Placed on a PIP

There are a few things that an employee can do once receiving a PIP to give themselves the best chance at being successful. Those things include:

• Providing a response to the PIP. While the PIP doesn’t afford a traditional response process, an employee can always put together a response nonetheless. In such a response, the employee should identify any concerns with the PIP and provide examples, if they exist, of how the employee has been performing successfully on the elements at issue.
• Don’t wait to start demonstrating improvement. Even if the employee disagrees with the PIP or the alleged performance concerns, the employee should start working on meeting the performance expectations outlined in the PIP. Waiting too long to address the performance issues can sometimes lead to the employee running out of time in the PIP process.
• Document everything. Once a PIP is issued, one of the employee’s best tools is documentation. For all tasks completed relevant to the PIP, the employee should save documentation showing the task and its completion. The employee should also keep a log of all assistance received and all feedback provided from the supervisor. As mentioned above, if an agency fails to provide feedback or assistance, it can impact the agency’s ability to move forward with disciplinary action.
• Request an Accommodation. If the employee believes that the performance issues are related to a disability, the employee should request an accommodation as soon as possible. The accommodation will not stop the PIP, but ideally, the accommodation will allow the employee to be better able to meet the performance expectations outlined in the PIP.
• Keep an eye on the use of leave. An employee can use leave during a PIP period. An employee on approved leave (annual, sick, or leave without pay) cannot be penalized for work that is not completed while on approved leave. Also, if an employee is on leave for an extended time during a PIP period, the PIP period may need to be extended to give the employee a meaningful opportunity to improve.

What Happens After a PIP

If the employee is still performing unacceptably after the PIP period, the next step is usually some type of discipline. The options include reassignment, demotion, or removal. If the employee is proposed for removal, he or she can be removed in a very short period of time after the decision on the PIP.

Given the potential serious implications of a PIP, employees who believe one may be issued, or have received a PIP, should consult with an attorney to determine how best to proceed. Our law firm advises federal employees in various employment matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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 Melissa L. Watkins, Esq.

One of the more common issues that arise for employees, applicants, and contractors who have or are applying for a security clearance is the issue of illegal drug usage. However, recently, there has been an uptick in agencies paying attention to employees, applicants, and contractors’ use of a less common substance, inhalants.

While many individuals pay attention to and understand their duty to report prior illegal drug use, many are unaware that there are other types of use, involving substances that are not considered illegal or covered by the Controlled Substances Act, that may impact the security clearance process.

In recent years, there has been a trend towards agencies considering misuse of substances, even if the substance is not technically illegal. These agencies have suggested that such use may need to be disclosed on the Standard Form 86 and have indicated that the use may create a basis for someone being denied a security clearance.

What are inhalants, you may ask? This question is the starting point for why this area of focus by agencies is complicated and difficult to navigate. The word actually covers a variety of substances that are consumed, as the name suggests, by inhaling. There is not necessarily a finite or specific list of what substances qualify as inhalants from agencies’ perspectives. However, a starting point for the conversation would be the security questionnaire itself, currently referred to as the Standard Form 86.

The Standard Form 86 contains a section where individuals are asked to disclose their prior involvement with various substances. Under the list of substances, there is a category for inhalants where only two examples are provided: toluene and amyl nitrate.

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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.

Our law firm represents federal employees in the federal employee grievance process. Most, if not all federal agencies have their own federal employee grievance procedures for employees who wish to bring employment disputes forward for resolution.

Why Federal Employees Use the Grievance Process

Generally, federal employees utilize a federal agency’s grievance process when other legal options do not fit. For example, a federal employee may decided to file an administrative grievance if their employment dispute does not qualify for an Equal Employment Opportunity (EEO) complaint, the appeals process at the Merit Systems Protection Board (MSPB) or before other forums.

Types of Grievances

There are usually two types of federal employee grievances: (1) union grievances; and (2) administrative grievances. Typically, federal employees who are not eligible for the union grievance process use the administrative grievance process. Those federal employees represented by a labor union may be required to go through the union grievance process.

What do Administrative Grievances Cover?

Administrative grievances filed by federal employees involve employment disputes. For example, an administrative grievance can involve a challenge to a disciplinary action (example: Letter of Reprimand), a performance action, a re-assignment or other employment issue. There are numerous types of disputes eligible for the administrative grievance process for federal employees.

The Administrative Grievance Process

When considering filing an administrative grievance it is important to review the applicable administrative grievance process for your federal agency. Attached is a sample agency policy here. Each federal agency has its own administrative grievance procedures. Many administrative grievance policies require that a federal employee notify a supervisor verbally of the administrative grievance prior to filing a written grievance. Other policies require that a written grievance be submitted first.

Depending on the federal agency, an administrative grievance process typically includes 2-4 steps. Usually, at each step, the federal employee and a grievance official will attempt to resolve the grievance. Often the written grievance is submitted first and a secondary in-person meeting (when requested) is then held to discuss the administrative grievance. Usually, at the end of a grievance presentation the federal employee, often through counsel, will present a compromise resolution proposal. Following the administrative grievance presentation, the employee or counsel will receive a written decision on the grievance. If an initial administrative grievance is denied, then the federal employee will often have the ability to proceed to the next higher step of the process.

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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.

Our security clearance lawyers represent government contractors and federal employees before the National Security Agency (NSA) in security clearance (and employment cases). The NSA is an intelligence agency with its own unique security clearance process under Security Executive Agent Directive 4 (SEAD 4). This article discusses the appeals process for government contractors at the NSA for security clearance and Sensitive Compartmented Information (SCI) access denials or revocations.

The Security Clearance Process at the NSA

The security clearance appeals process at the NSA is similar to those used by other federal (and intelligence) agencies, with its own unique features. The following are the usual steps at the NSA in the security clearance or SCI review process for government contractors.

1. Revocation or Denial of Security Clearance/SCI Letter Issued by NSA

When a government contractor has a security clearance or SCI access denial or revocation with the NSA, they will receive a letter that provides the background and security clearance concerns in a case. The letter is referred to as a Clearance Decision Statement and will then state that the contractor is given 45 days from receipt of the letter to respond to the alleged security concerns. The investigative file, upon which the denial is based, will often be attached to the NSA letter to facilitate a response by the contractor. With other intelligence agencies, an individual must usually first request the investigative file. The investigative file will usually include documents, reports, interviews, or other items relevant to the NSA’s security concerns at issue. Our security clearance lawyers typically represent contractors starting with this first step.

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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.

Approximately 20,000 federal employees are subject to disciplinary actions a year. Our nationwide federal employee lawyers represent federal employees in these disciplinary cases. Each disciplinary action defense is different and legal assistance is necessary by attorneys familiar with federal employment law.

Disciplinary Process for Federal Employees

There are various types of disciplinary actions for federal employees. These can include letters of counseling, reprimands, suspensions, demotions, and removals. For most serious disciplinary actions, referred to as adverse actions (usually removals), a federal employee will first receive a notice of the proposed discipline and the opportunity to respond. A proposal will typically have an explanation of the conduct or issues leading to the proposed disciplinary action.

If a federal employee is issued a notice of proposed disciplinary action, they will have the opportunity to contest it before it becomes final. Most permanent federal employees (past their probationary period) are entitled to due process. A federal employee can choose to provide a written response, an oral response, or both. We often recommend providing both oral and written responses.

Request Disciplinary Materials

In most disciplinary cases, it is important for federal employees to request all of the materials that have been relied upon by the agency in proposing the discipline. Sometimes they are attached to the proposal, and other times they must be requested. We request these materials before responding on behalf of federal employees at the beginning of a case.

Draft a Written Response

It is important to prepare a full written response to the allegations in proposed disciplinary cases. These responses are typically 5 to 20 pages in length, depending on the underlying facts and number of charges. Most written responses are typically due anywhere from 7 to 30 days after a proposal is given to a federal employee. The written response will address the alleged charges of misconduct or performance and any relevant mitigating factors (also known as the Douglas factors). In our responses, we also attach available evidence that contradicts the charges. Additionally, we attach declarations, affidavits, good performance records, character support letters, and other helpful exhibits.

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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 federal employees in the Equal Employment Opportunity (EEO) complaint process before their federal agencies.

This article briefly describes how the EEO complaint process works for federal employees. Keep in mind that each federal agency is different but essentially follows the same rules. These rules can be found at the EEOC website in MD-110. It is important to get legal advice before filing an EEO complaint.

Reasons for EEO Complaints

Complaints of discrimination may be filed by federal employees or applicants for employment with a federal agency when they believe that they have been discriminated against in the workplace because of:

• race
• color
• religion (including reasonable accommodation of religious beliefs or practices)
• national origin (ancestry, ethnicity, accent, and/or use of a language other than English)
• physical/mental disability (including reasonable accommodation requests)
• sex (including pregnancy, childbirth, lactation, abortion, and related medical conditions)
• sexual orientation, gender identity, gender expression
• age (40 and above)
• parental status
• retaliation for prior protected EEO activity (one of the most common complaints)
• genetic information

Pre-complaint EEO Process

A federal employee seeking to file an EEO complaint must first contact an EEO counselor within 45 calendar days of the alleged discrimination or within 45 calendar days of the effective date of action.

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