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

By Melissa L. Watkins, Esq.

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

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

Federal Government Changes to Marijuana Policy

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

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

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

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

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

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

By John V. Berry, Esq.

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

What is Continuous Evaluation?

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

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

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

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

Contact Us

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

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

By John V. Berry, Esq.

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

Foreign Influence Concerns Under Guideline B of SEAD 4

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

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

Mitigating Factors for Foreign Influence Cases

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

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

Work Early to Mitigate Security Concerns Involving Foreign Influence

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

Contact Us

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

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

By John V. Berry, Esq.

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

Here are three quick tips to consider:

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

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

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

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

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

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

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

Contact Us

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

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

By Kimberly H. Berry, Esq.

Early retirement is a consideration for many federal employees.

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

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

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

Federal Employee Requirements for Early Retirement for FERS and CSRS

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

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

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

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

Contact Us

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

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

By John V. Berry, Esq.

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

Potential EEO Claims

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

Example EEO Complaints

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

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

EEO Complaint Deadline

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

EEO Remedies

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

The EEO Process

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

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

Additional EEO Information

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

Contact Us

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

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

By John V. Berry, Esq.

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

Disciplinary Process for Federal Employees

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

If a federal employee is issued a notice of proposed disciplinary action, they will have the opportunity to contest it before it becomes final. A federal employee can choose to provide a written response, an oral response or both. We often recommend providing both oral and written responses.

Request Disciplinary Materials

In most disciplinary cases, it is important for federal employees to request all of the materials that have been relied upon by the agency in proposing the discipline. We request these materials before responding on behalf of federal employees at the beginning of a case.

Draft a Written Response

It is important to prepare a full written response to the allegations in proposed disciplinary cases. These responses are typically 5 to 20 pages in length, depending on the underlying facts. Most written responses are typically due anywhere from 7 to 30 days after a proposal is given to a federal employee. We also attach exhibits to these responses, including supporting evidence, good performance records and character support letters.

Present an Oral Response

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

Appeals

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

Conclusion

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

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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.

In a move that will affect Virginia executives and employees, it appears that the Federal Trade Commission (FTC) is considering new regulations to curtail the use of non-compete agreements. Non-compete agreements limit the ability of employees to work for potential competitors or start their own businesses.

The President issued an Executive Order in July 2021 urging the FTC to consider limiting the unfair use of non-compete agreements that unfairly limit worker mobility. It now appears that the FTC is on the verge of taking action.

Non-compete agreements in recent years have gotten out of hand, with some companies barring even fast food workers or coffee baristas from taking similar positions elsewhere. Traditionally, non-compete agreements were reserved for very senior-level executives, but the practice has now been extended to all types of employees.

Lina Khan, the Chairperson of the FTC, recently told the Wall Street Journal, “We feel an enormous amount of urgency given how much harm is happening against the workers. This is the type of practice that falls squarely in our wheelhouse.” While non-compete agreements have typically been controlled by state law, it is time for action on the federal level. Locally, in 2020, Virginia exempted low-wage workers from non-compete agreements; this was a move in the right direction.

Many lawyers who draft non-compete agreements disagree with the FTC taking any action to limit them. Our firm represents executives and employees who have been issued unfairly broad non-compete agreements, and we believe that the FTC should take action to limit this practice.

Contact Us

If you are employed in Virginia and have signed or are considering signing a non-compete agreement, you should seek the advice of a qualified Virginia employment lawyer. Please contact our office at 703-668-0070 or through our contact page to schedule a consultation.

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

By John V. Berry, Esq.

We have represented many security clearance holders in security clearance cases involving alcohol usage. The recent COVID-19 pandemic has not helped as many people have engaged in more alcohol usage while working from home offices. In our experience, one of the most common issues that has arisen over the past few years in the context of security clearance holders or applicants involves alcohol abuse or over-consumption.

Alcohol Consumption/Abuse by Cleared Employees or Applicants

Under the security clearance guidelines, alcohol over-consumption and abuse can be a major factor in determining whether a person obtains or keeps their security clearance.

Security concerns regarding this issue fall under Adjudicative Guideline G, Alcohol Consumption of Security Executive Agency Directive (SEAD) 4. These are the guidelines that apply across the Government for security clearance holders.

Alcohol security concerns can come into play when an individual has a major alcohol-related incident. The most common issue that begins a security clearance review is a recent alcohol-related traffic incident, such as being arrested for driving under the influence. A recent event gives security clearance officials pause and makes them ask the question of whether or not it is an isolated incident or something more serious.

Security Concerns Raised by Alcohol Abuse or Consumption

When security clearance issues arise involving alcohol abuse or over-consumption, it is very important to take them seriously.

The major security concern for federal agencies that evaluate security clearances is that excessive alcohol consumption can lead to the use of questionable judgment or the failure to control impulses, both of which are not considered acceptable for purposes of access to classified information. As a result, the Government has listed alcohol-related concerns that could cause one to lose (or not get) a security clearance. Quoting from SEAD 4, these include:

“(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use disorder

(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others, regardless of whether the individual is diagnosed with alcohol use disorder

(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder

(d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder

(e) the failure to follow treatment advice once diagnosed

(f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder

(g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence.”

How to Mitigate Alcohol-Related Security Concerns

The Government has established a number of ways in which a security clearance holder or applicant can mitigate alcohol-related security concerns. They include, but are not limited to, the following:

  • A significant amount of time has passed since the alcohol-related incident
  • The alcohol usage or related incident was unusual and/or is unlikely to happen again
  • The individual acknowledges their alcohol issue and provides evidence to show that they have overcome it or are seriously working on the alcohol issues through treatment
  • The individual has completed a treatment program and established a pattern of modified consumption or abstinence

Alcohol consumption security clearance issues can involve many different variables so seeking experienced counsel is critical; every case is different. The key for successfully handling alcohol-related security clearance issues is to focus on them as early as possible.

Contact Us

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

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

By John V. Berry, Esq.

Our lawyers represent federal employees in federal employee grievances nationwide. Each federal agency has their own unique grievance procedures, and it is important to have counsel familiar with the differences.

Grievance Process for Federal Employees

Federal employees typically use a grievance when they want to challenge an action at work (e.g., discipline, performance, treatment at work). The main purpose in filing a grievance is to resolve an employment dispute through compromise (where possible) or by having a senior-level supervisor reverse an earlier decision.

Two Types of Grievances

There are usually two types of federal employee grievances, one filed through union grievance procedures and one through a federal agency’s administrative grievance process. Those not eligible for union grievance processes are often able to file their grievance through the administrative grievance process. Before a federal employee files a grievance, it is important to consult with a lawyer.

Drafting the Grievance

Depending on the applicable administrative grievance policy or union collective bargaining agreement, the first step in the grievance process can vary. Many grievance policies require that a federal employee notify a supervisor verbally of the grievance prior to filing a written grievance. Other grievance procedures require that a written grievance be filed first in order to start the process.  

Following the Steps of the Grievance Procedure

Depending on the federal agency, a grievance can include anywhere from 2-5 different steps in the process. Usually, a written grievance is followed by a meeting to discuss or present the grievance in person. When we represent federal employees in grievances, a lawyer presents the grievance, and the federal employee also speaks in order to provide key facts in the dispute. Usually, at the end of the grievance meeting, we will present a proposal to resolve the grievance. Following the grievance presentation, the federal employee’s counsel will usually hear back informally about the proposed resolution or the federal employee will receive a written decision on the grievance itself.

In our experience, a successful grievance resolution requires compromise by both parties. After each of the steps, the grievance generally moves to a higher-level supervisor as it progresses through the process.

After a Grievance Decision

If a grievance is not resolved at the end of the grievance process, many federal agency policies: (1) allow federal employees to request arbitration through their union (usually just in union-based grievance procedures), (2) provide federal employees the right to request an administrative hearing on the grievance, or (3) provide additional rights for review. It is important to understand how an applicable grievance procedure works for a particular federal agency prior to filing a grievance.

Conclusion

When a federal employee is considering filing an administrative or union grievance, it is important to have an attorney represent or advise them. Our law firm represents federal employees in the different types of grievance processes. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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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.

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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