Legal Insider

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.

It is important to obtain legal advice prior to meeting with security clearance investigators when potential security clearance problems are anticipated.

When individuals have difficulties in the security clearance process or anticipate future problems, the best advice that can be given is to prepare in advance for the meeting. Preparation for the first security clearance meeting can make the difference between a government contractor/federal employee successfully obtaining/retaining a security clearance or being denied one.

Preparing for the Initial Security Clearance Investigator Meeting

One of the most important considerations in meeting with a security clearance investigator for the first time is to adequately prepare for the meeting, especially where there may be potential disqualifying security concerns. We find that most government contractors and federal employees have a general sense of potential security concerns that could arise at the time that they begin to review or complete their e-QIP/SF-86 submissions.

In the most common scenario, an individual is usually alerted to potential problems that may require preparation for the clearance process when they find that they may have to answer “yes” to a certain question and then provide formal disclosures to an uncomfortable question, such as the use of drugs or past financial debts. When these types of issues are anticipated, then one should seek counsel and prepare in advance of a meeting with a security clearance investigator.

Review Relevant Documentation

If a potential security concern exists, it is important to gather as much information and documentation one has on the issue of concern in preparation for the interview.  Such information, if useful, can be provided to security clearance investigators at the start.  At other times, the information can be useful for later in the clearance process, if needed.

For example, suppose an individual knows that they have a large outstanding debt on their credit report. If so, then that information will certainly be important to review prior to a meeting with a security clearance investigator.

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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 federal agency investigations. Generally, most federal employment misconduct cases start as a result of a complaint by other federal employees alleging misconduct. When a federal employee is notified that they are under investigation or suspects that they may be investigated regarding possible misconduct, it is very important to speak to a federal employment attorney for advice and possible representation.

Common Types of Federal Employee Investigations

While it is very difficult to cover each type of potential misconduct that a federal employee might be investigated for, some of the more frequent investigations involve:

• Misconduct in the Workplace
• Lack of Candor
• Misuse of a Government Computer/Internet
• Misuse of a Government Credit Card, Vehicle or Travel Card
• Discrimination or Harassment in the Workplace
• Time Card/Attendance Issues
• Off-Duty Criminal, Alcohol or Traffic Conduct
• Security Violations
• Insubordination
• Disrespectful Conduct in the Workplace

A Typical Federal Employee Investigation

The usual process for a federal employee investigation begins when the federal employee is notified (usually with very short notice or even the same day) that an investigator needs to speak with them about an issue. Investigators do not usually provide information about the nature of the complaint or investigative issues until the federal employee arrives at the meeting. The investigator can be a supervisor, an agency investigator, an individual from human resources, or an agent assigned by the agency’s Office of Inspector General (OIG). Generally, a misconduct investigation starts with very little advice or information about what a federal employee should expect or what rights are available to them.

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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 Melissa L. Watkins, Esq.

Polygraphs are a mysterious notion for individuals considering exploring careers that require high levels of clearance.

For those who have never taken a polygraph, most of the procedures and protocols surrounding them are unknown. And for those who have already participated in one, they likely understand the potential pitfalls that lie in the process.

What many individuals do not know is that most agencies requiring polygraphs have policies in place allowing legal counsel to attend. For instance, the Department of Defense’s policy provides that you “have a right to talk privately with a lawyer before, during, and after the polygraph examination.” Individuals are almost always required to complete a consent form prior to the polygraph examination.

Keep in mind that in most polygraphs, legal counsel is not necessary. However, in a minority of cases, legal counsel may be recommended for individuals that have previously had polygraph issues or who may end up disclosing information that could be adverse.

When is Polygraph Representation a Good Idea

It isn’t always necessary to have legal counsel during a polygraph examination. However, there are a number of situations where it may be a good idea. Such might include:

1. An individual has had a difficult time with earlier polygraph exams and needs reassurance during the examination.
2. If there are unique legal issues that could come up during a polygraph which might require immediate legal advice.
3. An individual has engaged in conduct that could raise criminal liability concerns.

What Can Lawyers Do During a Polygraph?

In certain situations you may want to consider bringing legal counsel to the examination. While legal counsel cannot stop the examination or provide your answers for you, legal counsel can be present for you to speak with before, during breaks, and after the examination. In our experience, it is helpful to have experienced counsel there to discuss the information being disclosed and how to potentially mitigate any concerns when circumstances dictate.

The mere presence of legal counsel also may cause polygraphers to adhere to the normal bounds of polygraph practice. For most agencies, you will arrive at the testing location and would be able to meet with your attorney beforehand. During the examination, your attorney may sit either right outside the examination room, or in a separate room where a video of the ongoing exam would be viewable by the attorney.

Each agency has different polygraph procedures. When needed, at any point during the exam, you would be able to request to speak with your attorney privately to obtain guidance or counsel for your questions or concerns.

Contact Us

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

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, a local employment and labor law firm 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. (more…)

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, a local employment and labor law firm 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. (more…)

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

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

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

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

Clearance Upgrade Dilemma

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

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

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

By John V. Berry, Esq.

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

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

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

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

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

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

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

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

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

By John V. Berry, Esq.,

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

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

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

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

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

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

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

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

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

By John V. Berry, Esq.,

In our last post we discussed the security clearance application process. This week we’ll focus on how to prepare for the security clearance investigative interview.

If an individual believes that there is a good chance that problem areas exist in a security clearance application, he or she should expect to be asked about these areas by the assigned investigator. The investigative interview can vary in duration from an hour to several hours depending on whether significant security concerns exist.

Early preparation for the security clearance interview can help the individual’s confidence when meeting with the investigator and minimize any problem areas. Unfortunately, many individuals go into the interviews without thinking about or preparing for the issues that could arise and often provide incomplete information.

Don‘t react defensively to security clearance questions

It is important to be calm and positive about the issues when speaking to an investigator. In addition, arguing with an investigator will never benefit an individual since the investigator can have significant influence over the application process in the initial stages.

Be courteous and professional with the investigator

It is important for all applicants to treat the investigator with professionalism. If an investigator attempts to contact you, be timely and courteous in your response. Even if it is inconvenient to meet or return calls, not doing so could be detrimental. Promptly responding to the investigator can give the investigator a positive impression, especially if the investigator will be providing a recommendation regarding your ability to obtain or retain a clearance.

Be patient during the security clearance process

It is important to understand that the security clearance process can often take a few months to complete depending upon a number of other factors, including:

• Whether the individual is a federal employee or government contractor
• The number or significance of the security concerns
• Delays in obtaining responses from federal agencies in seeking an investigative file
• The general investigative backlog
• The specific employer involved

There are a multitude of other considerations that can also delay adjudication so it is important to remain patient during the investigation.

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 like and visit us on Facebook.

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

By John V. Berry, Esq.,

The District is home to many federal employees and government contractors that hold security clearances. These federal employees and government contractors are required to apply for and maintain security clearances. In some cases, the security clearance application process is straightforward.

However, if problems arise, they are typically discovered when the employee or contractor is about to complete his or her security clearance application through e-QIP or the government’s Standard Form 86. If possible, you should seek the advice of an experienced attorney who handles security clearance matters since each case is different. The following are some general guidelines:

Take time and answer security clearance forms carefully

This is one of the most important tips. Individuals often receive clearance denials because they did not adequately read the questions asked or proofread their responses on the e-QIP/SF-86 application prior to submission.

In some cases, if an individual does not take the time to read the question and answers “no,” when they should have answered “yes,” a clearance investigator might conclude that the individual was attempting to be dishonest. Such an oversight can be detrimental to obtaining or keeping a security clearance.

Be honest

This recommendation cannot be overstated. Individuals should be honest in all aspects of the clearance process. When an individual is dishonest during the clearance process, it could not only potentially bar the individual from receiving a security clearance, which would remain on his or her clearance record, but it could also raise a host of other legal issues, including potential criminal issues.

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