Clean record agreements for federal employees in light of Presidential Executive Order 13839 (EO) still exist given the right circumstances. There is significant confusion over this EO which attempts to bar clean or clear records, which is confusing for both federal agencies and federal employees. Federal agencies themselves often disagree with what the EO actually means and when it is applicable to settlement of cases. The negotiation of clear records for federal employees in the right situations is still viable and complies with the EO. Hopefully, this article will provide some context for how the EO and negotiations can still factor into settlements for federal employees.
What is a Clear Record or Clean Record Agreement?
A clean record agreement is simply an agreement to clear or change the a personnel action or performance record as part of a settlement or other resolution of a case. This was a significant component of most settlement agreements over the past 20 years for federal employees. The EO, however, has provided some restrictions on such agreements, but in reality little has changed legally. It is important for both federal employees and federal agencies to understand that this is the case.
Why Has Little Changed for Clear Record Agreements?
The reason why EO 13839 has not truly changed the landscape of federal employee settlements is that the recent EO takes the position that “legitimate” personnel actions should not be changed. It is my experience that there are always two sides to a personnel dispute and most often federal supervisors or Human Resources allege disciplinary issues that do not correspond to the facts or other wrongdoing not supported by the facts.
Managers may also often also assert performance issues that truly do not exist as a means of attempting to terminate an employee. Most federal personnel actions and issues result because a federal supervisor does not like to work with a particular federal employee. As a result, the contentious nature of the workplace relationship results in a personnel action that is flawed or not legitimate.
On this basis, we have settled a number of cases despite the introduction of the EO. A number of Merit Systems Protection Board (MSPB) judges and federal agency attorneys have worked with our firm in settling personnel issues involving either MSPB or Equal Employment Opportunity (EEO) complaints. During such, there have often still been ways in which to resolve such cases with clear or modified record resolutions. The point is that the parties have to keep an open mind and can still comply with both the EO and their mutual goals in resolving cases.
EO 13839 Require Allows Federal Agencies to Correct Records through Settlement
EO 13839 (5) does not prohibit changing federal employee personnel records, it merely sets procedures for doing so. There are options for fixing issues as explained by OPM and in practice with other agencies. OPM has offered additional guidance on correction which states that Section 5 requirements should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error.”
Examples of Potential Avenues to Correct Personnel Records
Here are some of the ways that we have been successfully able to settle cases with federal agencies:
1. Action Taken in Error: An agency can always correct a mistake. However, an action taken in error doesn’t mean that an employee gets to publicize the mistake. A good way of resolving these cases is for an agency to acknowledge that there was a mistake or potential mistake. It simply means that upon further review, some arguments have been raised that call into question the accuracy of the decision or penalty assigned. If you are considering settling a case at all, then a federal agency has obvious concern about how strong it is, or whether or not that penalty will be upheld (in error).
New information and review can cause always cause a new analysis which could by itself require an agency to correct an erroneous personnel action. As a result, the most common way that we have settled these cases with other federal agencies, in matters involving suspensions and even removals, is to have the federal employee waive their rights, have the agency modify the record due to new information which calls into question the specification sustains or in error, and then insert a confidentiality clause.
2. Rescind the Action and Rehear it: We have also settled cases where a federal agency rescinds a personnel action based on new doubts about the individual allegations, re-issue it with corrected charges (if appropriate) and then agree on a final disposition. Then a final decision can be rendered.
3. Settle a Proposed Suspension/Removal Prior to a Decision: This method is the easy way to settle an early a case under OPM’s guidance. OPM’s Interpretive Guidance on Section 5 Ensuring Integrity of Personnel Files Contained in Executive Order 13839 has made it clear that proposed actions can be resolved without issue: “When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action. Additional information may come to light at any stage of the process prior to final agency decision including during an employee response period.” As a result, for future cases we should try to settle cases at the earliest stage possible prior to the action being taken.
4. The Federal Employee May Not Be Covered by the EO: A final though is that an employee may not be covered by the EO, depending on the agency or position involved. I always check to see if your employee is an employee for purposes of the EO (i.e. Congressional employee, hybrid federal employee, federal employee not covered by the EO). Sometimes, certain agencies or agencies within agencies are not covered. Rare, but I have seen it.
Current State of Settlement Procedures
Some federal agencies will agree to a proposed change in personnel records given that it is a corrective action in settlement and not bat an eye to a change. Other federal agencies will not do so, because they are still confused about the application of EO 13839. However, it is important to fully understand the EO prior to entering a settlement agreement at the MSPB or the EEOC for enforcement purposes. Very specific language should be used in settlement agreements. Some administrative judges have even adopted a policy permitting such changes so long as the federal agency counsel asserts that it complies with EO 13839. There also remain other ways, outside of the MSPB and EEOC settlement enforcement process in which to process an agreement to clear an incorrect or debatable disciplinary or performance record.
Conclusion
If a federal employee needs legal representation in federal disciplinary or performance matters, then we can assist them in their employment matters. Please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook and Twitter pages.
The 2019 primaries and 2020 national elections are approaching soon. Our law firm often represents and defends federal employees in Hatch Act violation cases. The Hatch Act was meant to curtail partisan political involvement for federal employees. There are certain restrictions that prohibit certain political conduct, both on-duty and off-duty. As these elections approach, this article is meant to help federal employees avoid the problems of committing potential Hatch Act violations.
What is the Hatch Act?
The Hatch Act was first proposed by Senator Carl Hatch of New Mexico and enacted in 1939 prohibiting certain types of political participation by federal employees. This can vary between types of federal employees. For most federal employees, however, the rules are similar. Federal employees may not seek public office in partisan elections, use their official titles or authority when engaging in political activities, solicit or receive contributions for partisan political candidates or groups, and/or engage in political activity while on duty. Even some non-partisan elections can give rise to Hatch Act violations by federal employees if a candidate is sufficiently backed by a particular party.
Office of Special Counsel Enforcement for Hatch Act Violations
For most federal employees, the Hatch Act is enforced by the Office of Special Counsel (OSC). The OSC has the ability to seek disciplinary action against federal employees if violations are uncovered. Typically, violations are investigated following a complaint being filed with the OSC. Federal employees can potentially be disciplined or terminated for violations of the Hatch Act. Generally, the OSC will first conduct a detailed investigation into the allegations and then if violations are found they may then seek to negotiate a resolution with the alleged offender.
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In other cases, the OSC may file inform the individual that they are simply moving ahead with a disciplinary action filing with the Merit Systems Protection Board (MSPB) against the employee (usually seeking removal) and ask an MSPB administrative judge to take action against the federal employee for at the violations.
General Hatch Act Tips for Federal Employees
Federal employees are encouraged to seek advice before engaging in political activities. There are many types of federal employees and some are more restricted than others. Here are 8 simple tips for federal employees seeking to avoid potential Hatch Act violations:
1. Don’t run for office in a partisan political election;
2. Avoid partisan political discussions while in the federal workplace or while performing work;
3. Don’t try to raise funds for partisan political candidates in the workplace (even passing along website links for candidates to co-workers);
4. Don’t post political opinion or discussion during work hours on social media;
5. Don’t donate to a political campaign during work hours;
6. Don’t bring political campaign signs or buttons into the federal workplace;
7. Don’t use government resources (email, internet) to engage in partisan politics; and
8. Don’t use your government title or affiliation to endorse a political candidate.
Federal employees can usually still participate in many political activities, but doing so at work can be a violation of the Hatch Act. Federal employees can sometimes be candidates for non-partisan elections, assist in voter registration drives, express political opinions, attend fundraisers, sign nominating petitions or hold office in political parties.
For further information on potential Hatch Act violations, please see the information offered by the OSC. While it is doubtful that brief discussions about politics in the federal workplace would trigger an OSC investigation, the potential risk is there. The safest course for federal employees is to simply avoid partisan politics in the workplace and save them for off-duty.
Conclusion
If you need assistance with Hatch Act defense or other federal employment law 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 at www.facebook.com/BerryBerryPllc.
The Federal workforce is presently undergoing significant changes in size. Many federal agencies are shifting their workforce into other areas. In some instances, this has led to the Federal government to provide incentives for Federal employees to retire early. This article focuses on these incentives and considerations in accepting early retirement.
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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). OPM provides guidance on VERA here. Essentially, VERA is authority given to specific agencies so that they may offer early retirment options to employees.
In sum, 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. The Office of Personnel Management (OPM) has published guidance on VSIP payments here.
The purpose of VERA and VSIP is to help agencies complete the necessary organizational change with minimal disruption to the workforce and to make it possible for federal employees to receive an immediate annuity payment years before they would normally be eligible. It is also a carrot as opposed to a stick approach. 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;
- They may not have received a final removal decision based upon misconduct or unacceptable performance;
- They must hold a position covered by the agency’s VERA authority or program; and
- They must exercise their option under the VERA option during the agency’s VERA acceptance period.
Other requirements can apply, but these and 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 in other federal retirement matters.
Sometimes VERA or VSIP considerations can come up during settlement discussion involving a proposed removal or removal action. It can be important, in those cases, to seriously evaluate one’s options at that time.
Conclusion
If you are in need of federal employee retirement law representation, or need guidance regarding VERA (early retirement) or VSIP (early retirment incentives) 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.
Several Virginia employees have come to us to discuss the reasonable accommodation process when they develop a medical condition or disability that requires a change in their duties or other workplace adjustments in order for them to continue their employment. Our law firm represents private, federal, state, and county sector employees throughout the Commonwealth of Virginia in reasonable accommodation cases.
What are Reasonable Accommodations?
A reasonable accommodation is an employee’s request to change their employment conditions, assignments, hours, etc. in order to allow them to continue working in a position despite having a disability or serious medical condition. Of note, the reasonable accommodation process applies to both employees and job applicants in all states, including the Commonwealth of Virginia.
Under federal law, the Americans with Disabilities Act (ADA), which applies to most employees, encompasses and outlines reasonable accommodations. Federal employees are also covered under the Rehabilitation Act, which incorporates similar protections as the ADA for these types of employees. According to these laws, employers are required to engage in the reasonable accommodation process for qualified employees unless it would create an undue hardship for them.
In Virginia, many employees are also covered under the Virginians with Disabilities Act, which applies to most employers. Under both federal and state laws, the ultimate goal of the reasonable accommodation process is to enable employees with disabilities the opportunity to enjoy an equal opportunity in employment. The Equal Employment Opportunity Commission (EEOC) provides guidelines for reasonable accommodation requests.
How to Request a Reasonable Accommodation
The most usual type of reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements. Typically, the employee will then ask for a reasonable accommodation by approaching their supervisor or HR department, depending on the employer, and asking for one. A request for reasonable accommodation can be either formal or informal. For instance, depending on the employer, some have created specific forms covering reasonable accommodation requests which must be completed; whereas, other employers simply allow informal verbal discussions between the employee and their immediate supervisor in an effort to resolve the issue.
Regardless of form, once requested, there is typically a discussion/meeting about the reasonable accommodation requested. The discussion between an employer and employee is referred to as the “interactive process,” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request. This process does not mean that an employer has to grant every accommodation sought (or even the specific one requested by the employee); rather, the employer is only required to make a good faith effort to accommodate a disabled employee.
How to Find Examples of Reasonable Accommodations
There are far too many examples of reasonable accommodations to list here as they significantly vary based on an employee’s specific disability and their particular needs. However, the Job Accommodation Network (JAN) provides examples of reasonable accommodations regarding specific medical conditions. For example, JAN provides specific examples of potential accommodations for those facing back impairments which can be found here or for depression that can be found here. In all, JAN provides reasonable accommodation ideas for approximately 96 types of disabilities and medical conditions.
Conclusion
When an employee in the Commonwealth of Virginia needs to request a reasonable accommodation due to a medical condition, it is important to obtain legal advice and/or legal representation. Our law firm is ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process. Should you need assistance in this process, please contact us by telephone at 703-668-0070 or through our contact page. Please also visit and like us on our Facebook and Twitter pages.
Our lawyers represent employees before the Department of Veterans Affairs (VA) nationwide. We represent VA employees in suspension cases and Disciplinary Review Board (DAB) hearings. The DAB is a unique hearing process and counsel is needed by a physician, nurse or other medical professionals when a disciplinary case like this is pending. This article discusses the DAB process for more serious discipline, as it currently exists.
The DAB process applies to “Title 38” employees, under 38 U.S.C. 7401, which includes physicians, dentists, podiatrists, chiropractors, optometrists, nurses, nurse anesthetists, physicians assistants and expanded function dental auxiliaries. A DAB hearing is available to these types of VA employees when a disciplinary action (major adverse action, e.g. termination or reduction in grade) involves a question of professional conduct or competence. This is distinguished from cases that involve other types of misconduct, not related to professional conduct or competence, such as general misconduct (e.g. alleged theft, use of inappropriate language, AWOL, etc). The DAB processing rules, which are ever-changing, are shown here.
First Step – Proposal for Discipline
Typically, the first step in the process towards a VA DAB hearing is for a medical professional to be proposed for serious discipline. One example might involve a physician charged with gross negligence in conducting a medical procedure on a patient, or perhaps a nurse that has allegedly not performed their duties to the proper standard of care (not providing correct medications to a patient). In such a case, the medical professional will receive a proposed notice of removal, demotion, etc. and will then be given a deadline in which to respond. These deadlines are now very short and usually are set at 7 business days pursuant to statute. The individual can respond to the proposed action through a written response and/or an oral response meeting. We usually recommend both types of responses to clients.
Second Step – Decision on Proposed Discipline
Following the response to the proposal for discipline, a decision by the deciding official will be made. If the decision upholds the proposed discipline, the action will be sustained. The medical professional employee will then have appeal rights which are provided to them in the decision. Next, the medical professional will have a very short period of time in which to file an appeal and request a Disciplinary Appeals Board Hearing. According to some recent changes to statute, an appeal must usually be received within 7 business days. Once the appeal is filed, the process for the appeal will then begin.
Third Step – The VA DAB Pre-Hearing Process
If the request for a Disciplinary Appeals Board (DAB) hearing is accepted by the VA, a 3-person panel of members will be provided. Once the Disciplinary Appeals Board has been impaneled by the VA, a notice will go out to both the Appellant and the Agency’s attorney about the procedures to be observed. The notice will set various deadlines, including witness and motion deadlines. Sometimes, these deadlines can be extended, by motion. The DAB consists of 3 voting members (including a chairman, secretary, and another voting member) and a technical advisor. Often, the Agency attorney and the Appellant’s attorney will interact mostly with the Technical Advisor in the early stages of the case.
During the pre-hearing meeting, arguments over the relevance of witnesses can then be heard by the DAB and other issues about the hearing can be discussed. Shortly thereafter, a ruling by the DAB will be received by the parties and the list of approved witnesses will be finalized. Witnesses employed by the VA can be compelled to attend. Other approved witnesses will have to come voluntarily. In the case where a witness is also a patient, then other procedures may have to be taken in order to ensure that witness can testify under VA regulations. Lawyers for Veterans Affairs employees have to prepare significantly for DAB hearings.
Fourth Step – The DAB Hearing
The DAB is usually held at the closest facility where the employee was assigned. On the day of the hearing (which can last one to multiple days), a hearing room will be assigned. A court reporter will be present and both the Agency counsel and Appellant (and their counsel) will have tables for the hearing. The VA has the burden of proof, by a preponderance of the evidence, and will put on their case first. Both sides will have the opportunity for opening statements. After the Agency finishes calling its witnesses, then the Appellant will have the ability to present their approved witnesses. At the conclusion of testimony and the presentation of exhibits, the parties can then present closing arguments. Following this step, the DAB will discuss the case amongst themselves and then issue a decision.
Next Steps
Following a hearing by the DAB, a decision will usually be given quickly. If any charges are sustained, in whole or part, the DAB can approve the action as is or modify or reduce the action. Following a vote by the members, they will fill out a Form 10-2543. Following a DAB ruling, the Undersecretary for Health may execute the DAB’s decision, unless they find it clearly contrary to the evidence or unlawful. The DAB can order reinstatement, back pay, and other such remedies. Further appeals, if the Appellant loses, can be made through the court process.
Conclusion
When facing disciplinary issues for Veterans Affairs employees it is important to retain counsel. Please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook and Twitter pages.
We represent federal employees in Merit Systems Protection Board (MSPB) appeals. In other articles we go into more depth about various individual aspects of the MSPB appeals process, but this article focuses on a general summary of what to expect during the MSPB appeals process. There are sometimes some differences between appeals, but for the most part the major parts of the appeals process follow below.
A. Filing the MSPB Appeal
The first step in the MSPB appeals process is for a federal employee to file a MSPB appeal over an action that they have plan to challenge. In most cases, the MSPB hears cases involving serious discipline (i.e. removal; suspensions over 14 days, demotions). There are deadlines for filing an MSPB appeal and it is fairly strict. Typically, a federal employee has 30 days from the effective date of the adverse (the discipline) action to file an appeal. The MSPB appeals process has mostly transitioned to electronic filing so it is much more efficient to file the appeal electronically. It is very important to timely file the appeal and to even file it early given that an untimely appeal will likely be dismissed.
B. Receipt of the Acknowledgment Order
Usually, within 1-2 weeks of filing the MSPB Appeal, a judge will be assigned and issue an Acknowledgment Order which basically sets the ground rules and timelines in each case. This order is usually about 12-5 pages in length (depending on the specific issues in the case) and provides a significant amount of information about the processing of the individual MSPB appeal. After receiving the Acknowledgment Order it is very important to calendar all of the deadlines in the case.
C. Filing of the Agency File and Narrative Response
Typically, 20 days after the issuance of the Acknowledgment Order, the MSPB Administrative Judge assigned to the case will require the federal agency involved in the appeal to provide their agency file on the case to the MSPB and to the Appellant. This file will include the documents relevant to the federal agency’s case and also their initial summary response to the Appellant’s appeal. It is not uncommon for a federal agency’s file to be 50 to 300 pages long, depending on the number of documents associated with the case.
D. Holding of a Status Conference
Not all of administrative judges conduct these, but we have found that most administrative judges will schedule a status conference following the receipt of the Agency File and sometimes even before. The general substance of these status conferences involve an initial discussion of the issues involved in the appeal and also potential settlement negotiations. It is often the case that an administrative judge will attempt to move the parties towards talking settlement as early as possible. A status conference may lead to mediation or other alternative dispute resolution efforts.
E. The Discovery Process
MSPB appeals are much like civil litigation cases, except on a quicker timeline. A part of the MSPB appeals process will involve discovery. Usually, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit their initial discovery requests if they choose to engage in discovery. The discovery stage is very important as it is the Appellant’s (federal employee’s) chance to obtain documents, reports, statements, correspondence, emails, video, audio which the Agency possesses and which could be used during the hearing in defense of the action.
One of the most significant parts of the discovery process includes the ability to question, under oath, key witnesses by taking their depositions. Depositions can help get to the specific facts that may not have been uncovered earlier. For instance, if a federal employee has been accused and removed for allegedly threatening another employee in front of others, it is important to depose the other employees that witnessed the events.
F. Requesting a Case Suspension
At any point in the MSPB appeals process, often during discovery or when settlement talks are ongoing, a case suspension might be proposed by a party. A case suspension essentially freezes the MSPB litigation so that parties can complete certain tasks, such as completing discovery or to engaging in settlement talks or mediation. A case suspension can last up to 30 days and if needed a second one case be requested. Case suspensions are at the discretion of the Administrative Judge.
Case suspensions can be important when more time is needed to work out a settlement agreement or to finish taking depositions of other relevant witnesses.
G. Affirmative Defense Filings
When MSPB appeals involve certain types of defenses, such as discrimination claims, whistleblower defenses or military discrimination (USERRA) claims, an administrative judge is likely to order the Appellant to prepare a summary of their arguments for these issues. The Agency will have the opportunity to respond to such arguments with their own take on these types of defenses.
H. Pre-Hearing Submission
Prior to the MSPB hearing, the Administrative Judge will order pre-hearing submissions from each party. These generally include the parties’ versions of the issues to be heard, the documents to be used as exhibits in the case and proposed witnesses for the case. It is important to include the details behind the relevance for each witness and document. Generally, administrative judges (for most cases) will permit 5-9 witnesses in a case. Administrative judges vary on the admission of witnesses, so an appellant or their counsel must be prepared to argue for the relevance of their witnesses at the pre-hearing conference.
I. Pre-Hearing Conference
The next step prior to the MSPB hearing involves the actual pre-hearing conference. During the conference, the Administrative Judge will review both parties pre-hearing submissions and rule on witnesses, exhibits and other potential issues likely to come up at the hearing. As mentioned above, each party will want to be prepared to argue for their position during the pre-hearing conference. Typically, the majority of the pre-hearing conference will be used to argue that certain witnesses be required to attend and to provide a basis to the judge for their relevance. For exhibits, administrative judges vary on whether they will admit exhibits during the conference or defer to the hearing for such decisions.
J. The MSPB Hearing
The MSPB hearing typically takes about 1-2 days depending on the number of witnesses involved and the complexity of the case. During the hearing, there will usually be opening statements by both parties of 5 to 15 minutes. Following opening statements, there will be the examination and cross-examination of witnesses for both sides. In disciplinary cases, the Agency will typically put on their case first as the federal agency bears the burden of proof. It is usually the practice of administrative judges that if both parties call the same witness that both parties examine the witness at that time. In other words, if the Appellant is called by the Agency, then the Appellant’s attorney would conduct their examination of Appellant right after the Agency has done so. This procedure can vary. After the Agency puts on their witnesses, the Appellant will be allowed to do the same.
A court reporter will transcribe all of the testimony given and the MSPB will make the CD of testimony available to both sides following the hearing. Finally, there may be closing arguments and/or written closing submissions prior to the end of the hearing. In most cases, closing arguments are completed by both parties after the end of testimony as opposed to in written briefs. After the hearing, the Administrative Judge will then issues a written decision usually completed 3-6 weeks after a hearing is held.
K. Filing an Appeal of an Adverse MSPB Decision
Should an MSPB Administrative Judge issue an adverse decision, either party can file an appeal known as a Petition for Review (PFR) usually within 35 days of receipt of the decision. The are specific grounds for an appeal to the full Board of the MSPB, such as errors involving facts and conclusions of law. The legal basis for granting an MSPB appeal falls under 5 U.S.C. § 7701(c)(2). The appealing party can win an appeal if they are able to show:
(A) harmful error in the application of the agency’s procedures in arriving at such decision;
(B) that the decision was based on any prohibited personnel practice described in 5 U.S.C. § 2302(b); or
(C) that the decision was not in accordance with law.
Generally, such appeals can take 8 months to a year, to obtain a decision following the filing of a PFR so long as the Board has a quorum (at least 2 members). If the PFR is affirmed, other appeals options are available to the parties.
Contact Us
In sum, when filing an MSPB appeal, it is very important to retain legal counsel familiar with the MSPB to assist you. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
An interesting question that has arisen recently is whether Virginia employers can use non-compete agreements with independent contractors. The answer is not entirely clear. There are many potential pitfalls for both the independent contractors that sign such agreements and the employers that attempt to enforce them. An employer may discover that its fully executed non-compete agreement with an independent contractor is unenforceable, but also subject itself to significant liability for misclassifying an employee.
The Difficulties with Non-Compete Agreements for Independent Contractors
One of the main problems with requiring independent contractors to sign non-compete agreements is that independent contractors are different types of workers. An independent contractor is essentially its own business. Generally, an employer cannot compel an independent contractor, which is a separate business, to forfeit his or her business simply because it gave the independent contractor business. Independent contractors may appear similar to employees (and many employers cross the line in terms of who they think they can classify as an independent contractor), but there are different loyalties and duties. For the most part, the more that an individual becomes a part of an employer’s business or organization, through signing such non-compete agreements and assuming duties of loyalty and the like, the more likely that the individual can be considered an employee.
Suppose that an independent contractor is paid and taxed as an independent contractor, and then the employer has the independent contractor sign a non-compete agreement. The very existence of such an agreement likely initiated a shift of the contractor’s status from that of an independent contractor to a misclassified employee who owes a duty of loyalty to the employer. If the independent contractor has been misclassified by the employer, then the employer may risk having an unenforceable non-compete agreement, and also potentially subjects itself to serious tax, overtime, and government fine issues as a result of not paying the worker properly.
The legal issues and determinations associated with non-compete agreements for independent contractors in Virginia are in the very early stages and cannot be fully predicted. Given the large amount of government contractors in Northern Virginia alone, it appears that this issue will be fully litigated. Despite the relative uncertainty, an employer can easily run afoul of Department of Labor (DOL) and Internal Revenue Service (IRS) guidelines regarding misclassification, and end up owing significant sums to the government as well as the misclassified employee through enforcement efforts related to a non-compete agreement.
To date, there are a few interesting Virginia cases on the topic, including Reading & Language Learning Ctr. v. Sturgill, 94 Va. Cir. 94, Case No. CL-2015-10699 (Fairfax County Aug. 4, 2016) case. The Reading case involved an individual (Sturgill) who was training to be a speech therapist, but needed a clinical fellowship to obtain certification. Sturgill signed an agreement with Reading to work as an independent contractor for one year to obtain her license. In the agreement, Sturgill agreed “not to employ any contracted employee or contract with any current client of the other for a period of two years.” The language of the agreement was found to be confusing by the court.
Sturgill obtained her certification and left for full-time employment with a local charter school as a speech therapist. The local charter school had used Reading for some subcontracting work in the past. Reading then sued Sturgill in Fairfax County, claiming that she had breached her non-compete agreement by accepting employment at the charter school. Sturgill prevailed in her case on several grounds.
Interestingly, because Sturgill was still pending licensing, she was directly supervised by Reading personnel (since it had approved her schedule), and her supervisors had provided final approval on many issues associated with her work. As a result, the Reading court found that Sturgill was not an independent contractor and had been misclassified. The court determined that Sturgill was really an employee and, as a result, the non-compete agreement violated public policy. Specifically, the court found that because Sturgill was misclassified, Reading had not complied with Virginia and federal laws regarding employment taxation. In other words, the employer should probably never have brought suit as it subjected itself to other legal and tax issues. The case does not appear to have been appealed, so it is likely that the employer realized the mounting issues and decidedly walked away.
The Misclassified Employee Can Seek Damages
If an individual makes a claim that he or she was a misclassified employee, the individual can seek losses related to taxes and overtime. The DOL and other organizations can then seek fines and other penalties regarding the misclassification. The DOL has issued guidance on misclassification, at least as it relates to independent contractor entitlement to overtime. There are several different tests by DOL and the IRS on these issues (and they differ a bit). However, here is the test provided by the DOL in their Fair Labor Standards Act guidance:
“The Supreme Court has said that there is no definition that solves all problems relating to the employer-employee relationship under the Fair Labor Standards Act (FLSA). The Court has also said that determination of the relation cannot be based on isolated factors or upon a single characteristic, but depends upon the circumstances of the whole activity. The goal of the analysis is to determine the underlying economic reality of the situation and whether the individual is economically dependent on the supposed employer. In general, an employee, as distinguished from an independent contractor who is engaged in a business of his own, is one who “follows the usual path of an employee” and is dependent on the business that he serves. The factors that the Supreme Court has considered significant, although no single one is regarded as controlling are:
(1) the extent to which the worker’s services are an integral part of the employer’s business (examples: Does the worker play an integral role in the business by performing the primary type of work that the employer performs for his customers or clients? Does the worker perform a discrete job that is one part of the business’ overall process of production? Does the worker supervise any of the company’s employees?);
(2) the permanency of the relationship (example: How long has the worker worked for the same company?);
(3) the amount of the worker’s investment in facilities and equipment (examples: Is the worker reimbursed for any purchases or materials, supplies, etc.? Does the worker use his or her own tools or equipment?);
(4) the nature and degree of control by the principal (examples: Who decides on what hours to be worked? Who is responsible for quality control? Does the worker work for any other company(s)? Who sets the pay rate?);
(5) the worker’s opportunities for profit and loss (examples: Did the worker make any investments such as insurance or bonding? Can the worker earn a profit by performing the job more efficiently or exercising managerial skill or suffer a loss of capital investment?); and
(6) the level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise (examples: Does the worker perform routine tasks requiring little training? Does the worker advertise independently via yellow pages, business cards, etc.? Does the worker have a separate business site?).”
See DOL Guidance.
As indicated above, if the individual was a misclassified employee, then the employer might very well be liable for multiple tax issues and payments, in addition to other potential overtime payments and damages.
Conclusion
If you need assistance with non-compete or other employment law issues, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on our Facebook page.
It is very difficult for an employee to be called into a supervisor’s office or to the human resources office unexpectedly and be informed that his/her employment has been terminated. Even if somewhat expected, it is almost always a shock to the employee when it happens. Following the notice of termination, usually the employee is escorted out of their building. They are also usually faced with a sense of bewilderment and loss. They may not even have time to gather their belongings.
At-Will Employment in Virginia
It is important to know that terminations by private employers in Virginia are at will, which generally leaves discretion to employers in decisions to hire and fire employees. At-will employment basically means that a Virginia employer can let go of an employees at will, without reason or notice. As the Virginia Supreme Court has held, Virginia adheres to the employment at-will doctrine, which allows that “[a]n employee remains at liberty to leave his employment for any reason or for no reason,” and “[b]y the same token, the employer is free to terminate the employment relationship without the need to articulate a reason.” Francis v. NACCAS, 293 Va. 167, 171-172 (Va. 2017) (citing Johnston v. William E. Wood & Assocs., 292 Va. 222, 225-26, 787 S.E.2d 103, 105 (2016)).
Exceptions to At-Will Employment in Virginia
There are exceptions to the at-will employment doctrine in Virginia.
1. Employment Contracts
One example is where an employee has an employment contract with the employer that provides more rights than at-will employees. Employment contracts often provide restrictions on the ability of employers in firing an employee. The terms of each agreement will be unique and should be reviewed by a Virginia employment lawyer.
2. Illegal Discrimination by Employer
Another exception to the at-will doctrine involves a situation where an employer has committed discrimination or retaliation related to discrimination claims. These cases can be brought to the Equal Employment Opportunity Commission (EEOC) or through other government agencies under the Virginia Human Rights Act. There are distinctions as to where a discrimination complaint can be filed based on an individual’s employer so it is important to speak with counsel before filing a complaint.
3. Whistleblower Retaliations
Another exception to the at-will employment doctrine is where the employer terminates an employee in retaliation for whistleblowing. Such claims, mostly those involving whistleblower or other applicable claims have in the past been known in Virginia as Bowman claims, after the case of Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985).
Bowman Claims, according to the February 2017 Francis case can be found in one of the following 3 situations:
- When an employer violates a public policy enabling the exercise of an employee’s statutorily created right; or
- When the public policy violated by the employer was explicitly expressed in a statute and the employee falls under that statute; or
- When the termination is based on the employee’s refusal to engage in a criminal act.
If violations of law, rule and regulation arise in the context of termination, it is important for an employee to take account of their options.
a. New Virginia Whistleblower Laws as of 2020
In addition to Bowman claims, Virginia enhanced whistleblower laws for employees in 2020. It is usually better for an employee to have a legal cause of action based on a Virginia statute than caselaw. In this case, Virginia expanded the Fraud and Abuse and Whistleblower Protection Act in July of 2020 to protect employees of private companies, in addition to Virginia state employees from retaliation.
The Virginia Whistleblower statute provides:
§ 40.1-27.3. Retaliatory action against employee prohibited
A. An employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment, because the employee:
1. Or a person acting on behalf of the employee in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
2. Is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
3. Refuses to engage in a criminal act that would subject the employee to criminal liability;
4. Refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or
5. Provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation.
As a result of this new law, Virginia employees have gained new rights, surpassing those in Bowman.
Post-Termination Options
Virginia employees often have more options following a termination action than is apparent to them on the day of termination. The employer may have broken federal or Virginia laws with respect to the termination action. If so, then it may be possible to negotiate a resolution, such as through a separation or severance agreement, on behalf of the employee with the employer. It is often the case that an employer asks the employee, right after termination, to sign a settlement agreement. If an employee does so, without legal advice, they may be signing away their rights to challenge the termination. Other options may be available.
Other potential resolutions in Virginia generally can occur when the employee retains a Virginia employment lawyer to contact the employer about the inappropriate nature of the employee’s termination in violation of applicable employment or other laws. Many of these types of employment terminations are then resolved through settlement.
Issues Following Termination
Following an employee’s termination, many Virginia employees ask our firm whether they should also apply for unemployment compensation. The answer as to whether an employee should apply for unemployment compensation depends on the factual circumstances of the termination. Even if an employer terminates an employee in Virginia for alleged misconduct, the employee may still be able to seek and obtain unemployment compensation.
In addition, in Virginia, for unemployment cases, the employer has the burden of proof if they want to argue that the employee was terminated for misconduct. The employer essentially has to prove that the employee violated a significant company rule (and it usually must be a clear rule). In addition, it is often the case that an employee, through wrongful discharge negotiations, may obtain a resolution where the employer agrees not to contest unemployment. Finally, an employee should keep in mind that if the employee is terminated for poor performance, as opposed to misconduct, unemployment compensation is typically granted. However, any separation or severance compensation received by the employee will typically delay receipt of unemployment compensation.
So, while a lot depends on unique factual circumstances in each case, and each case should be discussed with an attorney, it may very well be worth it to consider filing for unemployment compensation in Virginia even if the employer has alleged misconduct or egregious performance issues in the termination.
While our firm principally represents employees in wrongful termination proceedings (as opposed to representing employees in the actual unemployment compensation hearings), we often advise them on issues involving their unemployment compensation matters and factor these issues into separation or severance negotiations as they can relate to their wrongful termination cases and factor these issues into separation and severance agreement negotiations.
Conclusion
When facing wrongful termination issues in Virginia it can be helpful and important to obtain the advice from and representation of an attorney. Our law firm advises and represents individuals in wrongful termination matters, including separation and severance agreement matters, in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
The following is an article on leave laws and rules that cover Virginia employees. Leave issues generally tend to come up either during the course of an employee’s employment or immediately following the end of an individual’s employment. Leave laws and regulations also vary by the type of employer and jurisdiction of the employer. For instance, federal, state, county and private sector employers have different laws and rules governing leave.
Virginia has not enacted laws regarding many areas of employee leave as of yet, but that may be changing as other states enact improvements. Virginia is a state where most forms of employee leave are not mandatory on employers, but can become so if policies and practices are adopted by employers. I also suspect that there will be additional changes in the future as Northern Virginia grows larger and adds more employers. Some jurisdictions, like the District of Columbia have moved towards expanded paid leave. Fortunately, for most Virginia employees, many forms of leave, while not mandatory are typically provided by employers in order for them to stay competitive in keeping key employees.
I will go through the major types of employee leave in Virginia below:
Vacation Leave / Annual Leave
Except for those situations involving medical issues, the most important form of leave involves annual or vacation leave. In Virginia, private sector employers are not required by law to provide employees with vacation / annual leave, either in a paid or unpaid status. This surprises many employees. Additionally, the rules regarding this type of leave are different for federal, state and county employees in Virginia.
For example, federal employees accrue a certain amount of annual or vacation leave each pay period and can then use this leave for vacation time or taking time off. When a federal employee leaves the federal government, they are then paid out for the remaining balance of annual leave that they have not used.
While providing or paying out accrued vacation or annual leave has not been mandated for private sector employers in this state, if it is pursuant to a consistent employer practice or policy, the employer in Virginia may be required to pay such leave out to departing employees.
Sick Leave
In the Commonwealth of Virginia, there is also no state requirement that employers provide employees with sick leave benefits. Virginia is different in this respect when compared to many other states. For example, 7 states (Arizona, Connecticut, California, Oregon, Massachusetts, Arizona and Washington) and the District of Columbia have enacted state laws to require some form of paid sick leave. It is likely that such laws will eventually make it to Virginia.
That said, if an employer decides to provide sick leave to employees in Virginia, it must follow their established policy. There are some other important considerations on sick leave. First, federal, state and county employees are generally given sick leave in increments. Additionally, pursuant to federal law, private sector employees of larger Virginia companies (more than 50 employees) are entitled to sick leave when given under the Family Medical Leave Act (FMLA). Under the FMLA, private sector employees in Virginia may take up to 12 weeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies.
This type of FMLA leave renews every 12 months as long as the employee continues to meet the eligibility requirements set out above. Employees may also take up to 26 weeks of leave in a single 12-month period to care for a family member who was injured on active military duty.
Administrative Leave
Administrative leave is a form of temporary leave from duties, with pay and employee benefits left intact. There is no entitlement to administrative leave for employees in Virginia, but it can and is often granted. Typically, this type of leave is granted for reasons related to misconduct, internal investigations, equal employment opportunity investigations or other miscellaneous issues that arise. Federal, state and county employees have their own unique policies for administrative leave, which vary. In large part, administrative leave is used to pay an employee when they are being kept out of the workplace during the course of a disciplinary investigation.
Holiday Leave in Virginia
Additionally, the Commonwealth of Virginia does not require private employers to provide employees with either paid or unpaid holiday leave. A Virginia employer does not have to pay an employee premium or other enhanced pays for working on a holiday. Again, different standards apply for federal, county and state employees, depending on position (e.g. firefighter), who may receive holiday pay for their work and/or different types of premium pay. The good news is that most private sector employers voluntarily observe a paid holiday schedule.
Leave Without Pay in Virginia
Leave without pay is another type of leave available in Virginia, but not mandated by state law. LWOP, as it is called, takes the form of reduced hours or in taking an unpaid day off. LWOP could be used for intermittent FMLA, personal, sick or vacation time off. The employee receiving LWOP will not be compensated for this unpaid form of leave.
Military Leave in Virginia
Military leave is available to most Virginia employees. Leave to participate in military service is not covered under Virginia law, but under federal law. The Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA requires that employers permit the return of an employee who is a uniformed service member to their position after they return from military service or training.
Voter Leave in Virginia
At present, an employer in Virginia is not required to give leave for an employee to vote. However, Virginia does require an employer to accommodate an employee who has been appointed as an election official in the Commonwealth of Virginia. Some federal and other public employees have policies of permitting leave for voting where necessary.
Jury Duty Leave In Virginia
An employer is not required to provide leave for jury duty in Virginia, but cannot discharge or retaliate against the employee if they have given reasonable notice to their employer of a jury obligation. Additionally, an employer may not charge a private sector employee vacation or annual leave for jury duty service. An employer that violates these provisions is guilty of a misdemeanor (VA Code. §18.2-465.1).
VA Code 18.2-464.1 provides, in part: “Any person who is summoned to serve on jury duty or any person, except a defendant in a criminal case, who is summoned or subpoenaed to appear in any court of law or equity when a case is to be heard or who, having appeared, is required in writing by the court to appear at any future hearing, shall neither be discharged from employment, nor have any adverse personnel action taken against him, nor shall he be required to use sick leave or vacation time, as a result of his absence from employment due to such jury duty or court appearance, upon giving reasonable notice to his employer of such court appearance or summons.”
Conclusion
If you need assistance with an employment issue or resolving a matter with an employer regarding leave issues, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook.
The following are 6 employment tips that can be helpful when an employee in Virginia is facing significant employment issues like termination, discrimination or retaliation.
Six Employment Tips to Consider in Wrongful Termination and Discrimination cases
- Remain Calm.
When employment issues arise, it is extremely important that employees remain calm and keep their composure. As difficult as it may seem at the time, it is critical to stay calm while at work even when dealing with significant employment issues like termination, separation, or poor performance reviews. It is not helpful to argue with a supervisor over an employment issue that arises. Doing so can put an employee at risk for discipline, placement on leave, or even retaliation. In addition, employers could contact law enforcement or security if they feel the employee is irate and getting out of control.
- Do Not Use Social Media to Talk About Employment Issues.
We advise employees not to advertise their employment issues on social media (e.g., Facebook, Twitter, etc.). Almost inevitably, when employees discuss their employment issues on social media, one of their “friends” will pass it to someone who then passes it on to the supervisor who was a party to the problem compounding difficulties for the employee at work.
- Understand that Human Resources Supports Management.
A common misconception is that Human Resources is supposed to be a fair mediator of workplace disputes. This is not the case in 95 percent of employment issues. Human Resources is there to support management’s position in personnel matters. It is important to seek advice elsewhere before reaching out to Human Resources if an employee’s dispute involves a supervisor. HR generally tends to also pass on complaints by employees to supervisors and not treat them confidentially.
- Do Not Use Your Work Email Account or Computer for Discussing Employment Issues.
Employees should not use their employer’s email account to send personal or private information, especially related to their employment problems. We also recommend that employees not use work computers for drafting personal documents, storing pictures or other storage. Otherwise, the information employees store on their work computers can potentially be used against them. It is often very easy to use an employer’s email account or computer for private or workplace issues, but it can hurt an employee’s employment claims later or cause them to be terminated. The employer can potentially claim misuse of a work email account or computer. If an employer begins to suspect problems with an employee, the employer may take steps to review an employee’s email account or computer. Employers also usually archive emails for each employee.
- Don’t Talk With Co-Workers About Employment Problems.
It is also important to be very careful about discussing employment problems with co-workers in the office, even if they are your friends. It is quite common for an employee to tell a co-worker about his or her employment problems with a supervisor, then the co-worker will (even inadvertently) tell another supervisor or other co-workers where it eventually makes its way back to the supervisor involved. This can result in workplace retaliation.
- If Terminated or Separated, Get Legal Advice Before Signing an Agreement.
If an employee is terminated or separated and is presented with a severance, separation, or other settlement agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the agreement before signing it.
Conclusion
If you need assistance with employment law issues in Virginia, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation.
