Press Club

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.

When federal employees are fired, demoted, suspended, face Whistleblower issues, retirement problems, military discrimination or a host of other civil service issues they often can take their cases to the Merit Systems Protection Board (MSPB).

The MSPB is an administrative court that functions much like a civil court for federal employee claims. Here is a summary of the MSPB process, which varies depending on the type of claim.

Filing an MSPB Appeal

The first step in the MSPB appeals process is for a federal employee to file a MSPB appeal. For most types of cases that the MSPB hears (e.g., those involving removals or severe suspensions for federal employees), the deadline to file an appeal is typically 30 days from the effective date of the decision. It is critical to timely file an MSPB appeal or it will most likely be dismissed. Appeals are mostly filed electronically these days through the MSPB e-Appeals website. Different deadlines may apply for some whistleblower, military discrimination and other types of cases so having counsel is very important in MSPB cases.

Receipt of the Acknowledgment Order

Usually, within a week of filing an MSPB Appeal, an administrative judge will be assigned and issue an Acknowledgment Order setting the ground rules and timelines for the appeals case. Of key importance are deadlines to conduct depositions and/or seek documents related to the case from a federal agency. In some cases, the order may also require the federal employee to prove that the MSPB has jurisdiction (i.e., can hear the case) over their case or to require a federal employee to respond to other issues in the appeal.

The Agency Files a Response to the Appeal

Usually, 20 days after the issuance of the Acknowledgment Order, the federal agency involved in the appeal is required to provide their case file to the MSPB administrative judge and the federal employee. This file will include the documents related to the federal agency’s case and also their initial response to the Appellant’s appeal. The file is often helpful for use in the case.

Settlement

The attempt to settle an MSPB appeal can happen at any point of the MSPB appeals process. We often find that it takes place most often before or slightly after the discovery process. The settlement process at the MSPB can take many forms: (1) informal settlement talks between the parties; (2) MSPB settlement judge involvement; or (3) the Mediation Appeals Program at the MSPB. It is very important to focus on settlement early in the process, where appropriate.

Discovery (Seeking Documents and Taking Depositions)

In most cases, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit initial discovery requests to each other if they choose to engage in discovery. The discovery stage is very important as it is the federal employee’s chance to obtain documents, correspondence, emails, video, data or audio in the agency’s possession which can be used to help the federal employee during the hearing. One of the most important aspects of discovery is the ability to question federal supervisors or others, under oath, in depositions. Depositions by a federal employee’s attorney can lead to very important information which can be used in a federal employee’s appeal.

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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.

Security clearance holders are expected to self-report security issues or incidents that may impact their ability to hold a security clearance.

Security Executive Agent Directive (SEAD) 4 is the applicable guide for clearance holders to determine whether a new incident or development touches upon a security concern which triggers a duty to self-report. Self-reporting is required and not doing so can cause harm to a security clearance holder. Furthermore, it is generally much better to be proactive in disclosing reportable events than for them to be discovered later.

Disclosing security incidents prior to them being discovered by clearance investigators can be considered a potential mitigating factor. Of course, there is also often many concerns in reporting security incidents by clearance holders which should be answered by an attorney experienced in security clearance law. Following legal advice, the usual first step in disclosing a new security concern involves contacting the individual’s security officer.

For example, if an individual is arrested for driving under the influence, it would be important to reach out to the security officer for guidance and first steps. The security officer may ask the individual to complete a form known as the SF-86C or other documentation to document the concern.

Timing is important. Self-reporting security incidents should be done, in many cases, as soon as possible. There are several examples of types of incidents that should be reported.  The following are just a few examples which may trigger the duty to report a new security issue:

  • Financial Issues — Reporting negative financial circumstances such as bankruptcy, state or federal tax liens or unusual adverse financial debt issues.
  • Arrests — Reporting any arrest, even if charges were not ultimately filed.
  • Marriage — Reporting marriages, other new serious relationships or changes in co-habitation.
  • Psychological or Substance Abuse Counseling — Reporting certain mental health and substance abuse issues impacting judgment or reliability.
  • Illegal drug use — Reporting the use of marijuana and other drugs still considered illegal on a federal level.
  • The Loss or Classified Information or Technology — Reporting inadvertent or accidental loss or compromise of classified or other sensitive information.
  • Foreign Contacts — Reporting unusual or substantial foreign contacts, especially those where classified or sensitive information is sought by the foreign contact.
  • Foreign Travel — Reporting travel outside the United States (other than for official business).

There are countless of other types of incidents that may need to be reported to a security officer, so if an individual has any questions it is often advisable to get legal advice as soon as possible. The Defense Counterintelligence and Security Agency (DCSA) has issued a notice which helps outline the self-reporting obligations of security clearance holders.

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If you need assistance with a security clearance issues, 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 Melissa L. Watkins, Esq.

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445).

The law took effect immediately and was approved with overwhelming support in the House of Representatives, with a vote of 335 to 97. The Senate followed suit, passing the law, without amendment, by voice vote. This new law is more than just giving victims of sexual harassment and assault “their day in court.” It’s also about forcing employers to put more effort into addressing sexual assault or harassment claims.

What is Forced Arbitration?

Forced arbitration is a controversial employment practice that is used by many employers requiring employees to arbitrate legal disputes with the company rather than going to court. Forced arbitration occurs when an employer conditions initial employment, continued employment, or important employment benefits on the employee’s agreement to arbitrate any future claims against the employer.

Companies use such arbitration agreements to bar access to the courts for all types of legal claims, including employment discrimination and sexual harassment claims. If an employment right protected by a federal or state law has been violated and the employee has signed a mandatory arbitration agreement, that employee does not have access to the courts and instead must handle the claim through the arbitration procedure set out in the arbitration agreement that she or he was required to sign.

Some of the downsides of an employee being forced into arbitration (instead of going to court) often include higher costs/fees for employees, less opportunity to obtain key evidence in preparation for cases and the employer’s ability to force a less convenient location (i.e. in another state far away) for the arbitration; many other downsides exist.

What Does the Law Change?

The law allows an employee alleging sexual harassment or sexual assault in the workplace to opt out of the pre-dispute arbitration agreement. However, the law only applies to disputes that arise after March 3, 2022. In other words, the new law does not apply to sexual harassment or sexual assault claims that occurred prior to March 3, 2022. However, this new law applies regardless of when the employee may have signed an arbitration agreement.

What Does the Change Mean for Employees?

Employees should understand that arbitration agreements are not automatically invalid as a result of the new law, but an employee can choose to avoid them where the law applies. The employee, not the employer, now gets to choose whether to litigate their sexual assault or harassment claims in court or through arbitration.

Often, employees alleging sexual assault or sexual harassment also allege other claims, such as discrimination or retaliation. Given the recency of the law, it is not yet fully known whether the law will allow all claims brought in a case involving sexual harassment or sexual assault, including discrimination and retaliation, to avoid an arbitration agreement.

However, given the wording of the law, referring to “cases” and not just “claims” it is likely that the law will allow employees to bring all claims in a case, even those not involving sexual harassment, into court rather than arbitration.

It is also important to note that even if an employee does not wish to sue in court, the employee can still raise a claim with the Equal Employment Opportunity Commission (EEOC). We have also included a link to the EEOC table showing the number of claims involving sexual harassment in the private sector filed since 2010. These numbers illustrate just how pervasive this problem is in workplaces throughout the country.

There are multiple ways in which an employee can going about raising such concerns and speaking with experienced legal counsel can allow you to evaluate all of your options. This new law is just the first step in freeing employees from forced arbitration in sexual harassment and assault cases.

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.

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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.

Virginia, the first state to enact COVID-19 workplace rules in July of 2020, has now become the first state to end them.

The action was taken following a vote on March 21, 2022, by the Virginia Department of Labor and Industry’s (DOLI) Safety and Health Codes Board (Safety Board). Under the previous standards, Virginia employers had a number of requirements with respect to COVID-19, including indoor masking in higher-risk areas and reporting COVID-19 outbreaks to the Virginia Department of Health. These standards have been rescinded.

Workplace safety is governed by both the federal Occupational and Safety Health Administration (OSHA) and state and local rules. States, like Virginia, with workplace safety agencies are required to have rules that are at least as effective as those set by OSHA.

OSHA originally attempted to enact rules regarding COVID-19 vaccines and COVID-19 testing, but the effort was dropped after being blocked by the Supreme Court. As a result, employers now remain subject to various state and local regulations with respect to COVID-19 issues.

New Guidance for Employers

While the prior rules are ending, new guidance is being finalized. Virginia employers still remain subject to workplace safety rules by DOLI, Virginia Occupational Safety and Health Programs (VOSH). VOSH has just proposed draft guidance for general health and safety rules concerning COVID-19 in the workplace.

The draft guidance, 5 pages in length, provides expectations for Virginia employers for handling COVID-19 employment issues, including, but not limited to:

  1. Encouraging employees with COVID-19 symptoms to stay home
  2. Assisting employees seeking to get vaccinated or in receiving booster shots
  3. Requiring employees infected with COVID-19 to stay home
  4. Providing employees masks or coverings as appropriate

There are many other items in the draft guidance, that employers and employees should review. The draft rules are still under review and the public may comment beginning March 28, 2022, until April 27, 2022.  It is likely that the draft rules will mostly remain the same as the final rules eventually issued.

Employers generally have the legal right to adopt safety and health workplace rules for employees that are more stringent than the guidance per the Code of Virginia.

Contact Us

If you are a Virginia 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.

If you are a federal employee and believe you are regularly asked to perform duties that are outside the scope of your grade, job series and title, there is a path to address such an issue.

The procedure is referred to as a “desk audit” or a classification appeal. A desk audit is simply a procedure where the duties and position of a federal employee are evaluated to determine whether the employee’s position should be upgraded in terms of grade, pay level, title or classification series.

Prior to a Desk Audit — Ensuring Accuracy of Position Description

Before requesting a desk audit, the federal employee should make sure that their position description accurately identifies the major duties assigned and performed. If the position description is significantly inaccurate, the employee should try to resolve the problem first by discussing it with a supervisor and perhaps a representative of the human resources office.

If unable to resolve the problem at this level, the employee could potentially use the agency’s negotiated or administrative grievance procedure. If the agency is unwilling to correct the position description, the federal employee can still pursue a desk audit and the inaccuracies will be reviewed by the Office of Personnel Management (OPM) later in the appeal process.

Desk Audit Process for General Schedule (GS) Employees

Usually, the first step in pursuing a desk audit is to speak with the individual’s supervisor to discuss the issue of whether their position is properly classified. It is important to stress the major areas of daily work and how these duties fit into the overall agency’s structure.

The federal employee will want to review their position classification standards prior to this discussion. If a federal employee’s supervisor believes that the individual’s position should be possibly re-classified, they can contact the federal agency’s human resources office to request a desk audit. The federal employee can also try contacting human resources directly if the supervisor is not receptive to the request.

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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 usually two parts to a security clearance evaluation: (1) responding to the facts of the security concerns at issue; and (2) if the security concerns are valid, what mitigating factors should apply. In addition to the stated mitigating factors for each type of security concern, there is an overall evaluation of the individual. This is referred to as the Whole-Person Concept in security clearance cases. This review focuses on whether the individual, even if they have security concerns, is an acceptable security risk.

Under the Whole-Person Concept, a clearance adjudicator will evaluate an individual’s eligibility for a security clearance by considering the “totality” of his or her conduct and all relevant circumstances. There are nine factors that are reviewed based on the Adjudicative Guidelines found in Security Executive Agent Directive 4 (SEAD 4) (see page 6-7 of link).

These factors include:

  1. the nature, extent, and seriousness of the conduct
  2. the circumstances surrounding the conduct, to include knowledgeable participation
  3. the frequency and recency of the conduct
  4. the individual’s age and maturity at the time of the conduct
  5. the extent to which participation is voluntary
  6. the presence or absence of rehabilitation and other permanent behavioral changes
  7. the motivation for the conduct
  8. the potential for pressure, coercion, exploitation, or duress
  9. the likelihood of continuation or recurrence

Under the Adjudicative Guidelines, the final determination of whether to grant eligibility for a security clearance is “an overall commonsense judgment” based on both the merits of the security issues and a review of the Whole-Person Concept. While only nine factors are mentioned here, other factors are also considered.

We find that the Whole-Person Concept is often best used to describe the individual’s character, positive work history and record, community involvement and other factors that help to show that the individual’s record merits a commonsense judgment for keeping or retaining his or her security clearance. Many of these individualized issues fall under Factor 9.

For example, suppose an individual holds a Top-Secret security clearance and has been convicted of driving under the influence of alcohol. The security issue is reported to the individual’s security officer. As a result, security concerns are raised and the individual’s security clearance is subject to review. In addition to addressing the issues involving the driving under the influence charge, the person would want to present evidence of good character (e.g., letters from supervisors, friends, and family), excellent performance at work, and/or community/charity involvement.

Generally, we find that clearance holders are not provided information about how to use the Whole-Person Concept to help them address security clearance concerns which may arise. Each case is different, but in many cases an individual may be a model employee, or someone who has contributed to their community or served in the military. These types of positive attributes can fall under the Whole-Person Concept and help to resolve a security clearance case favorably.

If you need assistance with a security clearance 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 Melissa L. Watkins, Esq.

Social media has a very long half-life, possibly longer than radioactive material.

As a federal employee, you are subject to certain limitations regarding your social media activity. There are five basic rules you should keep in mind as you engage with social media:

  1. Don’t: Use Personal Social Media During the Workday
  2. Don’t: Give the Impression You Are Posting in An Official Capacity
  3. Don’t: Share Non-public Information.
  4. Don’t: Violate the Hatch Act
  5. Don’t: Post Content that Could Raise a Security Concern

These rules will help you to avoid violations of the Federal Government Standards of Conduct and the Hatch Act.

The Federal Government Standards of Conduct do not prohibit federal employees from establishing and maintaining personal social media accounts. However, employees must ensure that their social media activities comply with the Standards and other applicable laws, including agency supplemental regulations and agency-specific policies.

When federal employees are on-duty, the Standards of Conduct require that they use official time in an honest effort to perform official duties, and that they use government property only to perform official duties, unless they are authorized to use government property for other purposes. Where agencies have established policies permitting limited personal use of government resources by their employees, those policies may authorize employees to access their personal social media accounts while on duty.

However, you should keep in mind that there is no right to privacy on work devices. If you do use your work device, whether desktop computer or mobile phone, to access personal accounts, understand that your activity may be monitored by the agency. The Standards of Conduct also prohibit employees from using their official titles, positions, or any authority associated with their public offices for private gain.

In addition to rules arising from the Federal Government Standards of Conduct, federal employees are also prohibited from engaging in certain activities on social media due to the Hatch Act. The Hatch Act prohibits federal employees from sending messages through social media that advocate for a political party or candidate for partisan public office while on duty or in a federal building. Engaging in such activity may subject federal employees to disciplinary action.

There are three general prohibitions under the Hatch Act that apply to all federal employees:

  1. Employees may not engage in political activity while on duty or in the federal workplace.
  2. Employees may not knowingly solicit, accept, or receive a political contribution for a political party, candidate in a partisan race, or partisan political group at any time.
  3. Employees may not use their official authority or influence to affect the outcome of an election.

Beyond the rules established by the Federal Government Standards of Conduct and the Hatch Act, federal employees, contractors and applicants should also be mindful of the impact that social media can have on possessing or applying for a security clearance.

Federal agencies may also consider publicly available social media information in connection with an application for a security clearance. While the government has been quick to point out it has not yet created a good process for ‘checking’ social media in the background investigations process, the government has been clear that publicly available social media information may be a part of the government’s continuous evaluation process. It is advisable to change your privacy settings to “friends and family only” and to not accept new friend requests from people who you don’t know.

Contact Us

If you are a federal 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 John V. Berry, Esq.

Governor Glenn Youngkin announced last week that his administration has opened an official email tip line for Virginians to submit “reports and observations” of “inherently divisive practices” in Virginia schools. On a radio show last Monday, he touted the new tip line and encouraged parents to send his administration “any instances where they feel their fundamental rights are being violated [or] where their children are not being respected.”

While it remains unclear exactly what might constitute such a “divisive practice” in the eyes of the new Governor, he has emphasized his broader goal to rid the school system of such teachings, including Critical Race Theory — despite CRT not actually being taught in K-12 schools in Virginia. This move comes after the Governor expressly banned CRT in Virginia public schools via his first executive order.

But all those political controversies aside, this new tip line presents a new and unnecessary worry for the dedicated teachers of our Commonwealth. For society generally, I think this tip line is a terrible idea. As an employment lawyer, however, I think it is even worse.

Educators across the Commonwealth may be obviously and justifiably upset at the idea of having someone report them. This worry is only magnified by the lack of clarity regarding this new tip line. For instance, there is no clear guidance about what counts as “divisive” — so teachers now have to worry about anything they teach, or even just the way they teach it, possibly being perceived as “divisive” by a disgruntled parent, student, community member, or random third party.

Although it is not clear what sort of investigative and/or enforcement actions the Governor envisions against teachers, the move comes just as our teachers face among the lowest salaries for their profession in the United States and just as the Commonwealth continues to face serious teacher shortages that have only been exacerbated by the ongoing COVID-19 pandemic. Being investigated by the government over such ambiguously defined concerns is the last thing our hardworking teachers need right now.

Many other questions about this tip line remain unanswered at this point, in addition to the vagueness of the “divisive practice” label. The Governor has not expressly stated that his goal is to investigate teachers, and his press secretary tweeted last Wednesday that the tip line is intended as a “resource for parents, teachers, and students to relay questions [and] concerns,” calling it a “customary constituent service to hear from Virginians.”

Asking people to report teachers over anything perceived as offensive or divisive is sure to result in overinclusion relative to anything that is truly a problem, and the breadth of this potential coverage is what is so problematic for the teachers faced with the Governor’s efforts. We have school boards and administrations for a reason — there is simply no need to create a culture of reporting schools and teachers to the state government rather than by solving problems within the school district.

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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.

The Director of National Intelligence (DNI) recently issued new guidance for federal agencies and security clearance holders on marijuana and cannabidiol (CBD) usage, in addition to investments in marijuana businesses. The guidance clears some issues up, but also raises new questions about the use of CBD for security clearance holders.

The three areas covered in the DNI’s new guidance include:

  • Usage of CBD products
  • Use of marijuana
  • Investments in marijuana

Use of CBD

The most important update provided involves the use of CBD products by security clearance holders and applicants. The new guidance discusses the fact that the Agriculture Improvement Act excluded hemp with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3% from the definition of marijuana within the Controlled Substances Act.

Further, the new guidance explains that hemp-derived products that contain greater than 0.3% THC continue to remain illegal and potentially a problem for clearance holders. The memorandum explains that CBD usage can be a problem because the Federal Drug Administration (FDA) does not certify levels of THC in individual CBD products and that some products may be labeled incorrectly.

The guidance suggests the CBD products that cause a clearance holder to test positive for marijuana use could cause a negative security clearance action. The guidance, however, doesn’t really explain how far security clearance adjudicators will consider regular CBD use that does not result in a positive drug test.

Use of Marijuana

The DNI essentially restates the current standard for prior marijuana use to determine whether such behavior raises a security concern and whether that concern has been mitigated. The guidance states that marijuana usage is a problem, but not necessarily determinative in the security clearance process. It appears that the DNI is trying to make it clear that some prior usage will not be an automatic disqualifier.

Security clearance holders should clearly refrain from any marijuana use in advance of seeking (or while holding) a cleared position. Also, the guidance states that an individual that indicates an intent to continue using illegal drugs in the future (e.g. marijuana) will be disqualified from holding a security clearance. The DNI stresses that such use should be balanced with the overall person’s history (the whole-person concept) when making a decision as to whether to grant or deny a security clearance.

Investments in Marijuana

The new DNI guidance is helpful in clarifying a confusing area for security clearance holders concerning involvement in marijuana businesses and/or investments. We have received many inquiries from clearance holders about where the line is drawn with respect to investing in marijuana investments. The guidance makes it clear that investments in marijuana are still cause for losing a security clearance until Congress changes the Controlled Substances Act, even where states have legalized marijuana.

Basically, the DNI draws the line at whether the individual knowingly is involved in a marijuana investment, business or stock. If the investment happens to be part of a diversified mutual fund, however, there is a presumption that there is no security clearance issue.

We believe, given the rapid changing nature of CBD and marijuana laws that this guidance will be updated again in the next few years.

Contact Us

If you are in need of advice or representation in security clearance matters, 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 John V. Berry, Esq.

Pursuant to the Biden Administration’s changes to personnel law for federal employees, the Office of Personnel Management (OPM) has just issued new proposed regulations to rescind many of the prior Administration’s federal employee rule changes. The changes by OPM were those put into motion earlier this year when the President revoked Executive Order 13839 by signing Executive Order 14003. The President, in Executive Order 14003 directed OPM to suspend, revise, or rescind actions implementing Executive Order 13839.

OPM’s new rules will affect federal employees in a few ways and will likely be fully implemented as soon as the short comment period is over. The changes will eliminate the clean record settlement ban, alter performance-based actions, revise probationary period notices, and change a few other personnel issues for federal employees. By far, the most important change is the ability for federal agencies to enter into clear record settlements with federal employees in cases.

Major Changes for Federal Employees

OPM’s proposed rules will rescind several parts of the former Administration changes to civil service rules, including the following:

  • Clean Record Settlements: This is the change that everyone has been waiting for. The prior Administration banned federal agencies from resolving federal employment litigation involving clean record settlements, where a person would be able to obtain a fresh start as part of settlement. Both federal employees and agencies disliked the ban because it interfered with their ability to resolve cases. The proposed changes will eliminate this ban and allow federal agencies the discretion to resolve complaints and settle cases in a fair manner.
  • Performance-Based Actions Against Federal Employees: The former Administration’s prior rule added language that basically left struggling employees without the ability to obtain assistance in successfully passing performance improvement plans. OPM’s change in the proposed rule would revert back to prior language that provided that as “the agency shall offer assistance to the employee in improving unacceptable performance” during the performance improvement plan process.
  • Probationary Notices: Next, OPM’s former rules required federal agencies to notify supervisors at least 3 months before an employee’s probationary period ended (with an additional reminder 30 days before it ended). The rules also required supervisors to make an affirmative decision about whether the employee should stay on the job. The rule had the unintended effect of causing many unjustified terminations and confusion. OPM’s new rules will remove this requirement because it believes that the frequency and timing of notifications should be left up to the discretion of each agency.
  • Disciplinary Penalty Determinations: The proposed rule removes many of the former Administration’s new criteria for disciplinary penalty evaluations, restating that a belief that the Douglas factors govern penalties for federal employees, leaving significant discretion to federal agencies.
  • National Guard Technician Changes: The proposed rules also would implement new requirements for procedural and appeal rights for dual status National Guard technicians for certain types of adverse actions.

If you are in need of advice regarding noncompete agreements or clauses, 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 John V. Berry, Esq.

The Merit Systems Protection Board (MSPB) is an appeals forum for federal employees and former federal employees to challenge various types of federal agency actions, such as serious disciplinary actions (adverse actions), retirement appeals, whistleblower matters and other types of cases. The most usual type of appeal for federal employees involves filing an appeal over a serious disciplinary action, such as removal from the federal service.

During an appeal a federal employee can choose to be represented by an attorney or not be. In almost all cases, however, the federal agency will be represented in the appeal by an attorney. This article discusses some of the reasons for retaining an attorney familiar with the MSPB process to assist you in an appeal. In other words, the reasons why it is important for a federal employee to retain an MSPB attorney. Here are some reasons why it is important for a federal employee to retain an MSPB lawyer for their appeal.

Federal Agencies Treat MSPB Cases Differently When an Employee Has an Attorney

One of the reasons why it is important to have an MSPB experienced attorney representing a federal employee is that it will very likely make a difference in how the federal agency treats the MSPB appeal at issue. Federal agencies allocate their attorney resources first to cases where an individual has their own attorney. Those cases tend to get the most attention because there are attorneys on both sides of the appeal.

In other words, where an appellant has their own attorney, the federal agency involved will focus more on that individual’s appeal merely because they have an attorney. This focus can help to settle MSPB appeals.

The MSPB Process is Much Like a Regular Court Case

One of the most important reasons why it is important to have an MSPB attorney represent a federal employee in the appeals process is the fact that it is a very serious type of appeal, functioning much like a court case. There is a general misperception that the process is designed for an employee to effectively represent themselves. An MSPB appeal functions much like a civil court case where there is discovery, the taking of depositions and the filing of briefs.

It is critical that an appellant have counsel to assist them in these difficult and sometimes complex processes. It is often the case where federal employees discovery this fact late and we are contacted after discovery deadlines have passed which can make appeals much more difficult to prevail in and/or settle. It is important to have an MSPB attorney early in the process.

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