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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 Kara Osborne, Esq.

On January 5, 2022, the Federal Trade Commission (FTC) proposed a rule that would ban U.S. employers from imposing non-compete clauses on workers.

The Code of Federal Regulations, Subchapter J, Part 910 (b)(1) defines non-compete clauses as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”

This proposed rule not only would prevent employers from entering into non-compete clauses with their employees but also would require employers to rescind existing non-compete clauses within a specified period of time.

The proposal comes after President Biden called for the FTC to ban or limit clauses in employment contracts that restrict workers’ freedom to change jobs. FTC Chair Lina M. Khan said in a statement, “The freedom to change jobs is core to economic liberty and to a competitive, thriving economy,” and “Non-compete block workers from freely switching jobs, depriving them of higher wages and better working conditions, and depriving businesses of a talent pool that they need to build and expand.”

The FTC estimates that this proposed ban could dramatically increase wages by almost $300 billion per year.

Prior to this proposed rule the FTC issued new guidance on how it would exercise its authority to regulate “unfair methods of competition” under Section 5 of the FTC Act.

The proposed rules states that the use of non-compete clauses would be an “unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause.”

Employers could argue that non-compete clauses allow for broad protection of their trade secrets and investments, but as shown by the FTC and in comments made by President Biden, the clauses are overused at virtually every level of employment and deprives workers of their ability to grow within their field and pursue a higher salary.

Should the proposed rule pass, it might require employers to shift focus on protecting their innovations with the use of confidentiality clauses and compliance with trade secret laws rather than reliance on overly broad non-compete clauses that stifle competition and economic growth.

With this proposed ban on non-compete clauses, workers would have the ability to change jobs more freely causing employers to become more focused on protecting their employees, their working conditions, and the wages they earn.

It should be noted that within the proposed rule there is one narrow exception that applies to individuals selling a business: their ownership interest in a business or the business’ operating assets in total. These specific non-compete clauses would remain subject to federal antitrust law. Should the proposed rule go into effect it is likely to face many legal challenges.

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

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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.

Just recently in October 2022, the average long-term U.S. mortgage rate topped 7 percent for the first time in more than two decades, a result of the Federal Reserve’s aggressive rate hikes intended to tame inflation not seen in some 40 years.

It is anticipated that rates will continue to rise, at least through the early part of 2023. While the increase in mortgage rates has led to many individuals delaying the purchase of homes, some have opted to move forward with home purchases, accepting the higher rates. Unfortunately, with the housing market tightening in terms of inventory, home prices have not fallen commensurate with the increase in rates.

This means that buyers purchasing now are often accepting higher monthly payments than they would have been only a year or two ago. While the future is impossible to predict, some economic forecasts are suggesting that a housing market crash, or a broader recession, could be forthcoming. If this does happen, we could see homeowners forced into circumstances similar to those that were occurring in 2008 and the years thereafter, mainly foreclosures or short sales of their homes.

While there hasn’t been a significant jump in foreclosures to date, foreclosure starts have been on a steady quarterly rise since the federal government ended the Covid-19 foreclosure moratorium in September 2021. However, a key difference now compared to the last housing crisis is that many homeowners, and even those struggling to make payments, have had a large boost to their home values in recent years. That means they still have equity in their homes and are not underwater — when you owe more than the house is worth.

However, if home prices continue to decline, as has been the trend in recent months, homeowners could start to face a decline in home equity, bringing us back closer to the events taking place in 2008. One of the fastest ways to end up with a security clearance issue is have a significant, negative event take place with finances. In light of the uncertainty in the housing market, and economy more broadly, clearance holders should be cognizant of their options and how those options may impact their security clearance.

Foreclosure vs. Short Sale

If an individual gets behind on mortgage payments or if their mortgage is underwater (the home is worth less than the amount owed on the mortgage), homeowners have two primary options: a short sale or a foreclosure. The owner is forced to part with the home in both cases, but the timeline and other consequences are different in each situation. A short sale is a voluntary process. When the homeowner sells the property for an amount that is far less than what is owed on the mortgage, it is called a short sale.

For example, if a homeowner owes $300,000 on the mortgage, but a financial crisis forces them to sell the home quickly for $250,000 — the remaining amount on their mortgage ($50,000) plus any costs associated with the sale are still owed by the homeowner. A short sale requires the approval of the lender in advance, and generally, the approval comes with an agreement by the lender to forgive the remaining balance owed on the mortgage after the sale, but this is not required.

A foreclosure, on the other hand, is involuntary. In this case, the mortgage holder (the lender or the bank) takes legal action to seize the home after the borrower fails to make a specific number of monthly payments. In a foreclosure, the lender takes ownership of the mortgaged property and sells it to recover the amount owed to them on the mortgage. Another major difference between the two is the impact on one’s credit.

Generally, short sales are not significantly detrimental to a homeowner’s credit rating, while foreclosures are. A homeowner who has gone through a short sale may, with certain restrictions, be eligible to purchase another home fairly soon. A foreclosure, on the other hand, is kept on a person’s credit report for seven years.

How Does a Foreclosure or Short Sale Impact a Security Clearance

While both foreclosures and short sales can impact a security clearance, it is generally the case that a short sale is far less detrimental to a clearance holder than a foreclosure. There are several reasons for this difference.

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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.

On November 23, 2022, the Office of Personnel Management (OPM), announced in the Federal Register significant proposed changes to the current landscape of forms utilized to establish trustworthiness of federal employees in positions of trust or requiring access to classified information.

OPM’s proposed changes would result in the adoption of a new form, called the Personnel Vetting Questionnaire (PVQ), which would consolidate and replace the current forms used in this process: the SF-85, SF-85P, and SF-86. The PVQ will exist as a single document, containing four parts, A through D, where the parts flex based on the suitability requirements and needs of the agency submitting the application.

In addition to changing the structure of the questionnaire itself, OPM has also proposed significant changes to the questions contained within the questionnaire.

Questions The Form No Longer Will Include

The PVQ will no longer require applicants to provide information related to gender or selective service. Questions related to Selective Service Registration are being proposed for removal given that such information is available to agencies through other means. For gender, OPM explains that questions related to sex or gender were previously included to assist in identity matching. However, the utility of this information has been reduced by changes at the state and municipality levels.

At present, approximately 45 states allow an individual to amend their birth certificate to match their gender, and 15 states allow an individual to choose a non-binary option. Given the differences among jurisdictions and the possibility that an individual’s self-identified sex may differ from what was previously provided, the effectiveness of using an individual’s self-identified sex as a tool for identity verification has decreased. OPM has concluded that asking an applicant or employee to indicate “Male” or “Female” no longer has utility in the investigative process to justify the burden of requiring it from respondents.

The PVQ also intends to adopt gender-inclusive terminology, such as parent and sibling, rather than terms that are not gender-inclusive, such as mother, father, sister, brother. These changes have been proposed, in part, to align with the current Administration’s priorities.

On June 15, 2021, President Biden issued Executive Order (E.O.) 14035, which directed that steps be taken “to mitigate any barriers in security clearance and background investigation processes for LGBTQ+ employees and applicants, in particular transgender and gender non-conforming and non-binary employees and applicants.”

Questions That The Form Changes

Arguably, the most significant change being undertaken by the PVQ relates to cannabis use. Questions regarding illegal drug use on the PVQ will be divided into separate areas to distinguish between use of marijuana or cannabis derivatives containing THC and use of other illegal drugs or controlled substances, in recognition of changing societal norms.

OPM’s goal in revising this section is based on the desire to increase and improve the applicant pool for those who may have fairly recently used marijuana, particularly in states where it was legal. The new questions will change the timeline for cannabis use such that a person would only be asked about consumption that occurred within the past 90 days, unless they used while working in a criminal justice, public safety or national security position. In those cases, the forms would ask about use that occurred at any time.

In contrast, the relevant forms that applicants are currently required to fill out ask about any marijuana usage within the past one, five or seven years, depending on the security level of the position they are applying for. The new form also makes clear that use of cannabis products containing less than 0.3 percent THC does not need to be disclosed because those products meet the federal definition of legal hemp.

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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.

Over the past year, there have been significant changes to the federal government’s stance on marijuana as it relates to federal employees, applicants, and clearance holders.

These changes, while still very much unfolding, signal that federal employees, applicants, and clearance holders will be treated differently when it comes to prior use of marijuana. It is important to note at the outset that while these changes suggest that prior use of marijuana may not be the barrier to employment or possessing a clearance that it once was, the federal government still does not authorize, condone, or accept the use of marijuana by current employees or clearance holders.

Federal Government Changes to Marijuana Policy

In the most recent wave of elections held around the country, marijuana was again a focus in several states. As a result of recent state ballot referendums, more than 155 million Americans will now live in states with legal weed. Maryland and Missouri passed legalization referendums on November 8, 2022, meaning there are now 21 states where anyone at least 21 years old will be able to legally possess marijuana.

That marks a seismic shift since Colorado and Washington became the first states to back full legalization at the ballot box a decade ago. While people will soon be able to legally purchase and use marijuana in 21 states, cannabis remains classified as a Schedule I drug on the Controlled Substances Act. That means cannabis use can still be a disqualifying factor for anyone applying for a security clearance or trying to enter federal employment.

However, along with the continued adoption of laws legalizing the substance at the state level, the federal government has begun undertaking efforts to change its stance on marijuana.

For instance, on December 21, 2021, Avril Haines, Director of National Intelligence (DNI), issued an unclassified memo to agency heads, which was “designed to provide clarifying guidance to federal agencies charged with determining [security] eligibility through adjudication,” following changes on the state and local levels. The big takeaways from the memo included the following:

  • “Prior recreational marijuana use by an individual may be relevant to adjudications, but not determinative.” Employees are warned though, “In light of the long-standing federal law and policy prohibiting illegal drug use while occupying a sensitive position or holding a security clearance, agencies are encouraged to advise prospective national security workforce employees that they should refrain from any future marijuana use upon initiation of the national security vetting process.”
  • With respect to the use of CBD products, using these cannabis derivatives may be relevant to adjudications in accordance with security regulations. Products containing greater than a 0.3 percent concentration of delta-9 tetrahydrocannabinol (THC), do not meet the definition of “hemp.” Accordingly, products labeled as hemp-derived that contain greater than 0.3 percent THC continue to meet the legal definition of marijuana, and therefore remain illegal to use under federal law and policy.
  • An adjudicative determination for an individual’s eligibility for access to classified information or eligibility to hold a sensitive position may be impacted negatively should that individual knowingly and directly invest in stocks or business ventures that specifically pertain to marijuana growers and retailers while the cultivation and distribution of marijuana remains illegal under the Controlled Substances Act.

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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.

Continuous evaluation (CE) is an ongoing screening process for security clearance holders that monitors cleared employees in between periodic reinvestigations. Many government employees, military personnel, and government contractors have already been placed in the CE system over the past few years.

What is Continuous Evaluation?

Continuous Evaluation (CE) is an ongoing security screening process reviewing the background of a cleared individual. Traditionally, the government has investigated individuals with security clearances through periodic reinvestigations after 5 or 10 years, depending on the level of the individual’s clearance. This has often caused gaps where the security clearance process has not uncovered potential adverse information on individuals between investigations.

CE is an effort by the government to reform the security clearance system and increase the timeliness of potentially adverse information reviewed between periodic reinvestigations. CE employs automatic record checks to provide near real-time security risk information on an individual. CE checks utilize commercial databases, criminal databases, U.S. Government databases, public records and other available information. Presently, CE does not use social media, although there have been some test programs using social media analysis.

When an individual is enrolled in CE, the government will be alerted to any changes in a clearance holder’s eligibility. If adverse or unreported information is identified through the CE process, the system will alert the sponsoring agency. One example of CE is where a security clearance holder is arrested for a crime which is then reported to government clearance adjudicators. The agency will then review the potentially adverse information to determine if further adjudication of the security clearance is required. With CE, it is important for individuals to focus on self-reporting issues that arise before they are later discovered.

CE is a work in progress. There will be changes and updates to CE as the government makes adjustments to the security clearance process as part of reform. The ultimate goal is full Continuous Vetting (CV), which is a more comprehensive form of CE. CV will likely eventually eliminate the need for periodic reinvestigations in the future.

Contact Us

When an individual is facing security clearance concerns it is important to obtain legal advice and/or legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Additionally, our Facebook page is located here and our Twitter account is located here.

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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, military personnel and government contractors who have issues concerning foreign influence concerns and their security clearance. Foreign influence concerns have always been a major security concern to the government because there are potential risks when a clearance holder or applicant’s family or close friends are subject to potential duress or influence by a foreign power.

Foreign Influence Concerns Under Guideline B of SEAD 4

Security concerns involving foreign influence are reviewed by federal agencies under Guideline B of the Adjudicative Guidelines in Security Executive Agent Directive 4 (SEAD 4). The specific conditions that may raise security concerns include the following 9 security issues listed in Paragraph 7 of SEAD 4:

  1. Contact… with a foreign family member, business or professional associate, friend or other person who is a citizen of or a resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure or coercion;
  2. Connections to a foreign person, group, government or country that create a potential conflict of interest between the individual’s obligation to protect classified or sensitive information or technology and the individual’ s desire to help a foreign person, group or country by providing that information or technology;
  3. Failure to report or fully disclose, when required, association with a foreign person, group, government, or country;
  4. Counterintelligence information, whether classified or unclassified, that indicates the individual’s access to classified information or eligibility for a sensitive position may involve unacceptable risk to national security;
  5. Shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure or coercion;
  6. Substantial business, financial, or property interests in a foreign country or in any foreign-owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest;
  7. Unauthorized association with a suspected or known agent, associate or employee of a foreign intelligence entity;
  8. Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure or coercion; and
  9. Conduct, especially while traveling or residing outside the U.S., that may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government or country.

Mitigating Factors for Foreign Influence Cases

In terms of potential mitigation regarding foreign influence security concerns, the government considers the following mitigating considerations under Paragraph 8 of SEAD 4:

  1. The nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States;
  2. There is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;
  3. Contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation;
  4. The foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee;
  5. The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and
  6. The value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.

Work Early to Mitigate Security Concerns Involving Foreign Influence

When a clearance holder or applicant has ties to a foreign country, such as close family or assets, it is very important to evaluate these situations early to attempt to mitigate security concerns. There are many methods available to attempt to mitigate foreign influence concerns, but it is essential to focus on (1) the country involved; (2) the nature of the foreign ties or assets; and (3) why this security concern is outweighed by assets, loyalty, and family in the United States.

Contact Us

When an individual is facing foreign influence security clearance concerns it is important to obtain legal advice and/or legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Additionally, our Facebook page is located here and our Twitter account is located here.

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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 has represented thousands of security clearance applicants and holders over the years. As such, one of the most common mistakes that security clearance applicants or clearance holders make is not being fully truthful on security clearance forms, e.g. e-QIP or SF-86. A significant percentage of our cases involves this very issue.

Here are three quick tips to consider:

Take Time to Complete Clearance Forms Accurately: One of the most common issues that we run across in representing those with security clearances are situations where the individual has completed their clearance forms with no intent to deceive, but erroneously.

Later, an investigator uncovers the mistake and wonders if the individual was attempting to deceive them. In those types of cases, we have to demonstrate the honesty and integrity of the individual involved to the clearance adjudicator and how the mistake was made. The far easier solution is to try to catch the mistakes in advance by taking the time necessary for accuracy.

Get Legal Advice if you are Hesitating About Whether to Disclose Something: Another common situation is when an individual doesn’t want to disclose something that has occurred in their past, say marijuana use on a security clearance form. When these individuals come to us ahead of time we remind them that not being truthful on clearance forms is the worst possible plan.

While not often charged, lying on security clearance forms can be considered a criminal offense. In many of these cases, just speaking with a lawyer knowledgeable in security clearances can help the person decide whether to disclose an issue or discontinue the clearance process if there is potential criminal liability. There are situations when it is better to back out of the security clearance process early than complete security clearance forms if there are significant criminal issues.

Rectify Old Mistakes: Another area where we counsel clearance clients is when a prior disclosure was never made, e.g. drug usage or an arrest. For those types of situations, we often counsel individuals to speak with their security officers to complete a supplemental security disclosure where appropriate. This often comes up when the non-disclosure occurred many years ago when the individual held a secret clearance but whose career has since been very successful and they are now seeking higher level clearances or will be undergoing polygraph testing.

Security clearance adjudicators will often given credit to an individual for voluntarily disclosing adverse information before it is uncovered (or even where it might never have been uncovered).

Honesty is always the best policy. However, mistakes are often made and can often be mitigated. The important thing to know as a security clearance holder or applicant is that these issues can often be overcome. When in doubt about disclosures, please get legal advice because each situation varies depending on the facts involved.

Contact Us

If you are in need of security clearance law representation or advice, 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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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.

Early retirement is a consideration for many federal employees.

Federal agencies that are undergoing major organizational changes such as reorganization, reduction in force (RIF), reshaping, or downsizing can be given the option to offer federal employees voluntary early retirement based on the Voluntary Early Retirement Authority (VERA). The Office of Personnel Management (OPM) provides guidance on VERA here. VERA is the legal authority given to specific federal agencies so that they may offer early retirement options to employees.

VERA authority can provide a federal employee an opportunity to retire early with better financial options. In addition to VERA, federal agencies may also be given Voluntary Separation Incentive Payments (VSIP), which can range up to $25,000. OPM has published guidance on VSIP payments here.

VERA and VSIP were designed to assist agencies that need to implement organizational changes while also making it possible for federal employees to receive an immediate annuity payment years before they would normally be eligible. The voluntary early retirement provisions are the same under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS).

Federal Employee Requirements for Early Retirement for FERS and CSRS

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

  • The VERA minimum age and service requirements set by statutes in the U.S. Code for CSRS and FERS employees (i.e., the employee has completed at least 20 years of creditable service and is at least 50 years of age or has completed at least 25 years of creditable service regardless of age)
  • Continuous employment by a federal agency for at least 31 days prior to the date that the agency initially requested the Office of Personnel Management (OPM) approval of VERA
  • The federal employee may not have received a final removal decision based upon misconduct or unacceptable performance
  • The federal employee must hold a position covered by the agency’s VERA authority or program
  • The federal employee must exercise their option under the VERA option during the agency’s VERA acceptance period

Other requirements can apply, but these are the major ones. It is very important for federal employees considering a VERA/VSIP offer to seek the advice of an attorney regarding their retirement issues prior to initiating the VERA process.

Our law firm represents federal employees that are considering early retirement and other federal retirement matters. Sometimes VERA or VSIP considerations can come up during settlement discussions involving a proposed removal or removal action. Our website has additional information on retirement options.

Contact Us

If you are in need of federal employee retirement law representation or guidance regarding VERA (early retirement) or VSIP (early retirement incentives), please contact our office at 703-668-0070 or through our contact page to schedule a consultation.

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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.

There are several important issues federal employees should consider when deciding whether to pursue an Equal Employment Opportunity (EEO) complaint against a federal agency or supervisor.

Potential EEO Claims

Federal employee EEO complaints can involve a range of discriminatory conduct by federal agencies, including discrimination on the basis of age, disability, race, religion, sex, pregnancy, genetic information and national origin. In addition, EEO complaints can also involve hostile work environment, sexual harassment and retaliation.

Example EEO Complaints

Some typical EEO claims brought by federal employees are demonstrated in the following five hypothetical scenarios:

  • Example A: Federal employee is sexually harassed at work by her supervisor. When the federal employee refuses her supervisor’s overtures, she then receives a suspension from the same supervisor. The federal employee brings a claim for sexual harassment.
  • Example B: Federal employee has previously filed an EEO complaint against his supervisor. A year later, the federal employee discovers that his promotion was denied by the supervisor because the supervisor was upset that the federal employee had filed an EEO complaint. The federal employee brings a claim for retaliation.
  • Example C: Federal employee takes sick leave related to treatment for cancer. Upon the employee’s return, his supervisor gives the employee a bad performance evaluation for taking too much time off. The federal employee claims disability discrimination.
  • Example D: Federal employee takes sick leave related to a recent car accident and requires a lot of time out of the office for physical therapy. The federal employee is also unable to perform some of her duties as she recovers, including the lifting of boxes for a limited period of time. The federal employee asks her supervisor for modifications to her duties (a reasonable accommodation), but the supervisor refuses to modify the employee’s schedule. The federal employee claims disability discrimination for her agency’s failure to accommodate her serious medical condition.
  • Example E: 65-year-old federal employee is competing for a promotion to a GS-15 position. Federal employee competes against two other employees, under the age of 40, for the same position. The 65-year-old federal employee is not selected for the position. He later discovers that the selecting official expressed concerns that may have impacted his decision, namely that the 65-year-old applicant might retire sooner than the other two younger applicants. The 65-year-old federal employee claims age discrimination.

EEO Complaint Deadline

Typically, a federal employee only has 45 days from the date of discrimination in which to contact an EEO counselor at the federal agency to initiate the EEO complaint process. If a complaint is not timely initiated, the federal employee may be time-barred from filing the EEO complaint.

EEO Remedies

Remedies for illegal discrimination and retaliation caused by federal agencies and managers involve several types of potential monetary relief, including lost back pay, compensatory and punitive damages, and attorneys’ fees. Non-monetary remedies can include the clearing of negative performance records and disciplinary actions, transfers and promotions.

The EEO Process

Typically, once a federal employee initiates contact with an EEO counselor regarding an informal complaint, assuming there is no earlier resolution or settlement, the next steps include: (1) the filing of a formal EEO complaint, (2) the investigation of the EEO complaint, (3) either a request for a decision on the EEO complaint from the federal agency or a request for a full hearing before a federal administrative judge and (4) proceeding to a hearing on the merits. Most discrimination cases are settled with federal agencies before the EEOC hearing stage. In fact, most cases settle at mediation with the federal agency early in the EEO process.

The EEO and MSPB processes can be intertwined, especially in removal cases. In some cases, federal employees may have what is known as a “mixed” case appeal that would also be appealable to the Merit Systems Protection Board (MSPB), so it is important to obtain advice from counsel.

Additional EEO Information

Federal employees can find more detailed information about filing EEO complaints at the Equal Employment Opportunity Commission’s (EEOC) website.

Contact Us

Our law firm represents and advises federal employees in EEO and other employment matters. If you need legal assistance regarding an EEO complaint or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook

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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 over 20,0000 federal employees are subject to formal discipline a year. Our nationwide federal employee lawyers represent federal employees in disciplinary cases. Each disciplinary action defense is different and requires careful planning.

Disciplinary Process for Federal Employees

There are various types of disciplinary actions for federal employees. They include letters of counseling, reprimands, suspensions, demotions and removals. For most serious disciplinary actions, referred to as adverse actions, 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. 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. 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. Most written responses are typically due anywhere from 7 to 30 days after a proposal is given to a federal employee. We also attach exhibits to these responses, including supporting evidence, good performance records and character support letters.

Present an Oral Response

The oral response portion of a federal employee’s response can be very important. While written responses can be key to refuting specific allegations, there is something very important about personally meeting with the person that will make the decision. We think that in serious cases, oral responses can make a significant difference in outcomes. We represent federal employees during oral responses.

Appeals

If an unjust disciplinary decision is sustained by a federal agency, there are various options for federal employees to appeal further. If serious enough, an individual can appeal to the Merit Systems Protection Board (MSPB). Other potential appeals can include filing Equal Employment Opportunity complaints or whistleblower appeals, where applicable. There are also a number of other types of appeals that can be brought, but legal advice is important when making such decisions.

Conclusion

When a federal employee receives a proposed disciplinary action, it is important to have an attorney represent or advise them from the beginning. Our lawyers represent federal employees nationwide in all types of federal employee discipline. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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