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

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

What is a Debarment?

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

Effect of Debarments and Suspensions

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

Typical Reasons for Debarment (of Suspension of Eligibility)

The most common reasons for debarment or suspension include:

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

Debarment/Suspension Process

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

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

Responding to Debarments

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

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

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

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

Contact Us

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

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

By Melissa L. Watkins, Esq.

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

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

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

Opportunity to Improve

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

What To Do If Placed on a PIP

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

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

What Happens After a PIP

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

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

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

By Melissa L. Watkins, Esq.

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

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

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

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

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

Toluene is the substance most often associated with paint thinners. Amyl nitrate, a controlled substance requiring a prescription, was previously an ingredient in “poppers” but has not been used in that manner since 1988. However, neither of these two substances are generally what is being consumed when people are engaging in the use of inhalants.

Most people using inhalants recreationally are using “poppers” or “whippets”. Poppers is a slang term that refers to the chemical class called alkyl nitrites that are inhaled. While similar in sound to amyl nitrates, the substance listed on the Standard Form 86, this is a distinct chemical compound. Whippets refers to nitrous oxide (also known as laughing gas). The name is in reference to whipped cream canisters, which contain little chargers that are filled with nitrous oxide. Both substances can be purchased from retail establishments, do not include the substances mentioned on the Standard Form 86, and are generally not considered to be illegal.

However, there are some laws in place regulating the production and sale of ingredients in some inhalants. For example, it is lawful to manufacture and sell products made with Isobutyl (including alkyl nitrites or “poppers”) for commercial purposes but such production and sale is prohibited for human consumption. This is why you may see “poppers” or “whippets” being sold as products labeled for other uses such as whipped cream canisters, room deodorizers, leather polish, or nail polish remover, to name a few. However, the laws currently in place do not relate to the person who may end up using the substance.

Given the gray area around the substances, individuals who have engaged in such use and who hold a security clearance or intend to apply for a security clearance should seek legal advice on whether their specific use should be reported and how such use may impact their clearance process.

Our law firm advises government contractors and federal employees in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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

By John V. Berry, Esq.

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

Why Federal Employees Use the Grievance Process

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

Types of Grievances

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

What do Administrative Grievances Cover?

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

The Administrative Grievance Process

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

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

After the Grievance Process

If an administrative grievance is denied, some federal agencies provide additional rights for review and others do not. Some federal agencies offer federal employees a hearing process for administrative grievances and others do not. It is important to understand how the applicable administrative grievance procedure works for a particular federal agency prior to starting the process.

Conclusion

When a federal employee is considering filing an administrative grievance, it is important to have an attorney represent or advise you. Our law firm represents federal employees in the administrative grievance processes. If you are a federal employee in need of legal 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.

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

The Security Clearance Process at the NSA

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

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

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

2. Response to the NSA Clearance Decision Statement

If the contractor elects to challenge the Clearance Decision Statement they will respond to the NSA’s security concerns in writing. A thorough response must be prepared to address all of the security issues. It is critical to also provide exhibits, such as relevant evidence, declarations, character letters, declarations, affidavits, and other documentation related to the NSA’s security concerns or the character of the individual.

3. Decision by NSA Office of Personnel Security is Issued

Once the response to the Clearance Decision Statement is received by the NSA, the NSA Office of Personnel Security will review and issue a decision as to whether or not the security concerns against the government contractor have been dismissed or mitigated. If so, the matter is then resolved and the clearance or SCI is restored. If not, the individual will be provided a short decision briefly citing the reasons why the appeal was denied and informing the contractor of their right to a final appeal before the NSA Access Appeals Panel (AAP). There is then a very short period of time (usually 15 days) in which to either request a hearing with the AAP or otherwise simply submit a secondary written appeal.

4. Meeting with the NSA Access Appeals Panel

If the contractor has elected to provide an in-person response (which is recommended), the next step is a meeting with the AAP. Any additional supporting documents must usually be submitted no later than 14 days prior to the AAP hearing. The AAP hearing is an in-person presentation. During this hearing before the AAP, counsel and the contractor will present their case asking for a reversal of the negative security clearance or SCI determination. The panel normally has 6-7 people present (panel members and an NSA attorney/advisor) and typically asks several questions during the presentation so it is important to be prepared. We recommend legal counsel during this process to ensure adequate preparation for the AAP hearing.

5. The NSA AAP Decision

Following the AAP hearing, they will issue a decision, usually within 1-3 weeks, either granting the clearance or access or issuing a final denial. In a few cases, the NSA AAP may seek additional information or an additional response from the contractor. If the AAP issues a denial, the contractor may re-apply for a security clearance or access a year later. The relatively quick clearance review process at the NSA is unique among intelligence agencies where the security clearance process can often take much longer.

Conclusion

When a government contractor is facing security clearance issues at the NSA it is important to obtain legal advice and representation from an experienced security clearance lawyer. Our law firm advises government contractors and federal employees in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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

By John V. Berry, Esq.

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

Disciplinary Process for Federal Employees

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

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

Request Disciplinary Materials

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

Draft a Written Response

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

Presenting the Oral Response

The oral response portion of a federal employee’s response can be very important. While written responses can be key in refuting specific allegations, there is something very important about personally meeting with the Deciding Official 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. Typically, during an oral response, the federal employee, their attorney, and the Deciding Official (often with their counsel) will be present. The attorney and federal employee will get a chance to argue against the disciplinary action directly to the decision maker. After the oral response, there is usually a few weeks to a few months until a decision is made on the proposed discipline.

Appeals from Disciplinary Decisions

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 may be brought, but legal advice is important when making such decisions.

Conclusion

When a federal employee receives or anticipates 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.

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

By John V. Berry, Esq.

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

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

Reasons for EEO Complaints

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

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

Pre-complaint EEO Process

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

EEO Counseling Process

When contacted by a federal employee, the assigned EEO Counselor will explain the EEO complaint process and provide a federal employee their rights and responsibilities. The federal employee may choose, at the time of initial contact, to attempt to settle the complaint through the alternative dispute resolution (ADR) process.

Formal Complaint Process

If the EEO complaint is not resolved through ADR or at the counseling stage, a federal employee may file a written formal complaint within 15 calendar days of receiving a document referred to as the Notice of the Right to file a Discrimination Complaint.

Acceptance or Dismissal

If a complaint is accepted by the agency (the majority of timely complaints are accepted for investigation) an investigator will be assigned by the federal agency to conduct an impartial investigation of the alleged discrimination claims. An investigator is able to administer oaths to obtain testimony from relevant witnesses and relevant documents.

Investigations and Report of Investigation

An EEO investigator will compile a Report of Investigation (ROI) containing relevant testimony and documentary evidence about the claims of discrimination but does not make any findings in a case. Typically, a federal agency is required to complete an investigation within 180 calendar days of receipt of the formal complaint, with possible extensions available.

Within 30 calendar days of receipt of the ROI, a federal employee can choose to (1) request a hearing by an EEOC judge (typically recommended); or (2) an agency decision on the complaint (usually not recommended). Other options exist based on the timing of the investigation.

Final Agency Decision

If a federal employee requests a final agency decision (FAD), the agency will issue a decision based on the information in the ROI. This process is not usually recommended because federal agencies rarely find themselves guilty of discrimination. If a federal employee is not satisfied with the FAD, they can appeal further to the EEOC or go to federal court.

EEOC Hearing

The EEOC hearing process is typically the best process for federal employees and usually must be requested within 30 calendar days of receipt of the ROI. The EEOC hearing process is similar to a civil trial and can include document requests and depositions. Legal representation is critical for the hearing process. After a hearing, the judge will issue a decision, either finding for the federal employee or agency. Such decisions can also be appealed.

Contact Us

If you are a federal employee and in need of legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation.

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

By 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:

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.

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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.