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.
Respond to the Questions Asked
In regard to meetings between government contractors/federal employees and security clearance investigators, one other issue that we run across is the tendency of some individuals to provide information not sought by an investigator.
We advise government contractors and federal employees to answer the questions asked by investigators as honestly as possible but stick to the actual questions that are posed. On many occasions, individuals can get sidetracked or provide information that is not relevant to the questions asked by an investigator, which may cause clearance difficulties later or cause frustration for the investigator.
The usual key to a successful interview is to be as responsive as possible to any areas of concern but to make the meeting with the clearance investigator as efficient as possible. Investigators tend to have many cases to review and like to focus on their particular areas of concern. The better an individual can honestly address specific issues raised by an investigator, the better the potential outcome.
When issues arise, it is important to consult with counsel to obtain the best legal advice possible in presenting one’s response to difficult questions.
Follow-up Interviews or Requests by the Investigator
A security clearance investigator may need additional information regarding potential security concerns or need to interview an individual a second time. We typically advise individuals to attempt to anticipate these requests in advance.
For example, if an investigator appears to have questions about one’s psychological issues during an initial interview, it may be helpful to attempt to obtain a letter from a medical professional soon after that shows that the psychological concerns are under control and have been resolved. Doing so in advance can save time and effort later and may resolve issues early should the investigator come back with additional questions.
Contact Us
If you are in need of security clearance legal 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.
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.
The Interview
In many cases a federal employee shows up for a scheduled meeting and an investigator just starts asking them questions. In other cases, the interviewer may start by asking the federal employee to sign a statement agreeing to be voluntarily interviewed and waiving their rights. This is the most usual method and offers little protection to a federal employee.
In other cases, a federal employee may be asked to sign what is known as a Kalkines notice, understanding that they are being ordered to speak to investigators under penalty of disciplinary action for not doing so. In such a case, many investigations can then lead to sustained federal employee discipline and potential appeals to the Merit Systems Protection Board (MSPB). Deciding when and how to provide testimony to agency investigators is a case-by-case decision. Each case varies, so obtaining legal advice is very important.
Federal Employee Interviews
An interview can last 30 minutes to many hours. Following the interview, many investigators summarize the testimony given by the federal employee and attempt to have them sign an official statement (or sworn declaration) about the information they provided. It is very important for a federal employee to carefully review the written summary. A federal employee will want to ensure that investigators do not insert their own characterizations (many times incorrect) of the statements made into a final written statement signed or sworn to by them.
Retain a Federal Employment Attorney for Advice or Representation
Having a federal employment lawyer represent or advise a federal employee during the investigation process is important. An attorney can advise and/or represent a federal employee before, after, and in many cases, during the investigative interview. It is important to have such counsel early because doing so can help prevent or mitigate potential disciplinary action later.
Furthermore, it can often help that an investigator knows that the federal employee is represented by counsel because they tend to follow the rules for doing so more carefully. Furthermore, should the issues involved turn potentially criminal in nature, it is important to be represented.
Contact Us
It is important for a federal employee to be represented by a federal employment attorney during investigative interviews and misconduct investigations. Berry & Berry, PLLC represents federal employees in these types of federal employment investigations and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial 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.
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:
- An individual has had a difficult time with earlier polygraph exams and needs reassurance during the examination.
- If there are unique legal issues that could come up during a polygraph which might require immediate legal advice.
- 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, 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.
Employee use of computers and workplace internet has become relatively common.
As a result, there are many times when employees get disciplined or terminated for such usage. We generally advise employees to avoid using workplace computers and/or internet connections, even where permitted, wherever possible.
Common Issues for Employees
The most frequent problems that arise for employees in this area involve:
(1) Watching entertainment programs (Neltfix, Hulu, Disney+ etc.)
(2) Excessive social media usage (Facebook, Twitter, Instagram, Snapchat, TikTok)
(3) Online gaming at work
(4) Watching, sending or receiving sexually explicit or otherwise inappropriate materials
(5) Sending harassing, violent, discriminating or hateful messages on company computers
(6) Using workplace computers or the internet at work to commit any kind of illegal activity, including the piracy of movies, music, games, etc.
(7) Distributing company information outside the company.
There are countless other examples which can violate company usage policies. Each company has their own computer and internet usage policy and it is important for employees to read them.
In our experience, many company computer and internet usage policies are fairly restrictive in writing, but not really enforced unless other employment issues arise. When such issues arise, an employer may have the ability to review an employee’s computer or internet usage on their work devices and attempt to discipline or dismiss an employee if they choose.
Defenses
There can be legal defenses available when an employee is wrongfully terminated from an employer where computer or internet usage is the underlying issue. These defenses would depend on the facts of the underlying incident and the individual company policy. Possible legal defense and/or representation should be discussed with a lawyer.
Contact Us
When an employee faces a disciplinary investigation or action based on alleged computer or internet misuse, it is very important to retain legal counsel familiar with these issues. Our law firm represents employees and 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 Brendan C. Stautberg, Esq.,
Financial issues are a frequent reason security clearance applicants run into problems during the adjudication process. That may not be surprising: it makes sense that the government would care about your financial status — including your record of paying off debts, meeting other obligations, and living within your means — because of how those aspects of your life and conduct reflect your trustworthiness and reliability.
And it is not unusual for Americans to have various debts, whether current or resolved, and sometimes people fall behind on their payments for whatever reason. It happens; people can and do fall on hard times for reasons entirely outside their control. Likewise, sometimes people make bad financial decisions that it can take significant time and effort to recover from.
Luckily, financial issues are not necessarily the end of the road when it comes to obtaining a security clearance. Many people are granted clearances despite outstanding debts and other problems. However, to get to there, it is crucial to understand how to address financial concerns in a way that will satisfy clearance adjudicators.
Financial Issues in the Security Clearance Context
When you first apply for a security clearance, you are faced with a new level of scrutiny, including towards your finances. But the nuances of this scrutiny, although very important, can be difficult to understand at first. For example, again, it is hardly the case that you cannot be granted a security clearance if you have any outstanding debt. On the opposite end of the spectrum, though, you can also be denied a clearance even if you have completely resolved past financial issues if other concerns about your financial responsibility remain.
Therefore, it is important to understand what clearance adjudicators are looking for when they allege a finance-related security concern. This topic is also a great example of why it is important to be represented by an experienced attorney in order to maximize your chances of successfully appealing an unfavorable clearance decision.
Depending on the federal agency involved, whether the applicant is employed by a contractor, and what stage the process is in, security clearance adjudications may be processed within the Defense Office of Hearings and Appeals (DOHA), the Defense Counterintelligence and Security Agency (DCSA), or within a sponsoring agency’s own security office. Regardless of which agency or office is adjudicating your case, the clearance adjudicators use standards from a document called Security Executive Agent Directive 4 (SEAD 4), which is issued by the Director of National Intelligence. The financial component of SEAD 4’s National Security Adjudicative Guidelines is Guideline F: Financial Issues.
Understanding and Responding to a Guideline F Concern
While Guideline F itself provides further details on what types of conduct can give rise to a financially based security concern, the main takeaway from Guideline F is twofold: first, financial irresponsibility demonstrates a lack of good judgment, self-control, reliability, and similar traits deemed important to safeguarding classified information, in addition to irresponsibility potentially reflecting other problems such as substance abuse.
Second, financial overextension could lead someone to engage in illegal activity to make ends meet, and it could also open them up to blackmail. As a result, the Guideline F calculus assesses both your own responsibility and actions as well as whether your financial situation increases your risk of other problems.
However, a frequent pitfall in Guideline F cases is that the applicant will focus too much on their current financial situation and not on the other aspects of their financial history. It is easy to mistakenly assume that as long as you demonstrate to the adjudicators that you have paid off your debts or resolved whatever other issues there may be, you are in the clear. Unfortunately, that by itself is often not enough.
Security adjudicators are not just looking at your current financial picture, but also at two other aspects of whatever issues they may allege: first, how you got into the situation in question, and second, what you have done to deal with it. For example, if you have a charged-off debt in your credit report, then even if you have since paid the debt in full or otherwise resolved it, adjudicators will want to know details about why the debt was charged off in the first place, and they will also want to know why you didn’t make payments for whatever period of time may be the case.
Even if you did make payments or otherwise attempt to resolve the problem, adjudicators will want to see hard evidence of your payments or other efforts — they will not just take your word for it, and the burden is on you as the applicant to provide sufficient evidence. However, if you can provide good explanations about your good-faith efforts to address any financial issues to the best of your ability, as well as adequately explaining the circumstances that led to the problem in the first place, then your chance of sufficiently mitigating a Guideline F security concern is much greater.
Contact Us
Our firm handles many security clearance cases, including Guideline F matters, for federal and federal contractor employees. If you are a security clearance holder or applicant in need of 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, 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.
There are many protections in the law for employees in the workplace, specifically, the Civil Rights Act of 1964 (Title VII) which makes it unlawful for an employer to discriminate against an employee because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.
Gender Stereotyping in the Workplace
Title VII also makes it unlawful to use policies or practices that seem neutral but have a discriminatory effect against people because of the abovementioned protected classes. That being said, sex or gender stereotyping is a less obvious form of sex discrimination, and it occurs when an employer discriminates against an employee because he or she does not follow the “expected” gender stereotypes and impressions.
The pivotal case regarding Title VII gender stereotyping claims is Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). In this case, the Supreme Court stated that evidence of an employer’s gender stereotyping could be used to prove that an employee faced unlawful sex discrimination. The Supreme Court held that “as for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group…”
While Price Waterhouse dealt with sex stereotypes regarding women, many subsequent cases apply the standard against sexual stereotyping to men, such as patriarchal, transgender and gay stereotypes such as not “acting” how their perceived gender would act.
Treating employees adversely for not conforming to sex stereotypes of any kind, not just “femininity”, is a form of unlawful sex discrimination under Title VII. Justice Neil Gorsuch and the United States Supreme Court in 2020 (Bostock v. Clayton County, 140 S. Ct. 1731, 1737 (2020), held that “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” The Supreme Court further stated that when an individual is fired because of their sexuality or gender identity, “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Although our society has come a long way in terms of equality in the workplace, there still is a pervasive issue when it comes to intrinsic stereotypes based on a person’s sex, gender, or sexual orientation.
An employer who fires an individual for being gay or transgender does so for traits that it would not have questioned in members of a different sex, just as if an employer fires a woman for acting “too aggressively” or not dressing femininely or a man for not conforming to patriarchal expectations. These limited examples show how employment decisions “because of” sex stereotyping are in direct violation of Title VII and are actionable for employees.
Contact Us
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.
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.
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.
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.
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.
