Workplace Investigations in Virginia
By John V. Berry, Esq.,www.berrylegal.com
Our Virginia Employment Lawyers defend Virginia employees in employment investigations involving employee alleged misconduct. This article talks about the issues involved when an employer conducts an investigation in the workplace. Virginia employers (and employers in other states) usually conduct workplace investigations into employee complaints because they can face legal consequences (or more severe consequences) if […]
Using the MSPB’s Online Appeal System
Merit Systems Protection Board Online Appeals The Merit Systems Protection Board (MSPB) recently overhauled its electronic appeal system, e-Appeal. The new system is now the only way to electronically file MSPB cases as of October 2023. When pursuing a case before the MSPB, it is therefore important for a federal employee to understand the latest […]
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Virginia Non-Compete Agreements
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Reasonable Accommodations for Virginia Employees
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Representing NSA Employees and Federal Contractors in NSA Security Clearance Appeals Our security clearance lawyers represent government contractors before the National Security Agency (NSA) in security clearance matters. As those seeking cleared positions know, the NSA is an intelligence agency with its own unique security clearance process through Executive Order 12968 and Security Executive Agent […]
The Informal EEO Complaint Process for Federal Employees
Federal employees begin the EEO complaint process with an informal complaint. The informal complaint process is just the initial step for federal employees who believe that they have been discriminated against. Federal employees bring claims on the basis of race, color, religion, national origin, age, disability, genetic information, pregnancy or other grounds against their agency. In order to begin the EEO process, a federal employee (complainant), must initiate contact with agency’s EEO office.
How to Initiate Contact
A federal employee must initiate contact with an EEO counselor within 45 days of the discrimination. This is how the informal EEO Complaint process begins. Specifically, the individual must initiate contact with a counselor “within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105 (a) (1). There can be exceptions where the conduct at issue has involved an ongoing hostile work environment. Additionally, there could be an exception where circumstances outside of the individual’s control prohibited timely contact.
That said, it isn’t always clear who a federal employee should contact first to begin the informal process. Every federal agency has different organizational structures for their EEO offices. A federal employee complainant can usually meet this requirement by contacting an agency official who is connected to the EEO process. It is best, however, for the complainant to reach out to the agency’s EEO office, in advance of the deadline. Doing so puts the complainant or counsel in the best position to find the best contact. The agency’s EEO office should readily provide this appropriate EEO counselor or contact.
In our practice, we generally prepare a notice of the discrimination that has occurred, in writing, as part of the informal process where possible. This can be used later as proof that timely contact occurred and also demonstrate what claims were brought within the 45-day period. It is not uncommon for agencies to later argue that not all of a complainant’s claims were brought through the informal EEO process.
After Initial Contact – Counseling or ADR/Mediation?
After contact with the EEO office has been initiated, the next step is to consider which initial option the federal employee wants to pursue. The EEO counselor will provide a federal employee and his or her counsel with paperwork outlining the rights they have in the process. For many federal agencies, the complainant will have an option to request immediate EEO counseling or to seek to mediate their EEO dispute. Our lawyers often resolve EEO disputes early on through the mediation process.
a. Pre-complaint EEO Counseling
Pre-complaint EEO counseling is mandatory. It may not be waived by either the agency or the complainant. It is a requirement to filing a formal EEO complaint. Pre-complaint counseling is also referred to as “informal” counseling. This is because the commission’s regulations, at 29 C.F.R. 1614.105(a), require counselors to “try to informally resolve the matter.”
b. EEO Mediation
Some complainants will have the option of using alternative dispute resolution (ADR) processes such as mediation to resolve their complaint early. An agency has discretion to decide whether it will offer ADR in a particular given case. In sum, an agency is required to have an ADR program, but it is not required to offer ADR in every case. Our firm frequently represents federal employees in the EEO mediation process. If successful, the EEO mediation process will result in a settlement agreement between the federal employee and the agency. The written settlement agreement will then resolve all claims between the parties.
Conclusion & Notice of Final Interview
If the EEO informal complaint has not been resolved through early counseling or mediation and settlement, a final interview will be conducted. This is the end of the informal EEO complaint process. This is often conducted by email, where the individual receives a notice of right to file a formal EEO complaint. The notice will explain the next steps and deadlines associated with continuing in the process.
Filing of Formal Complaint
While the formal complaint process is different than the informal process, they both have deadlines. It is important to note that when a federal employee receives notice of a right to file a formal complaint they normally have 15 days to file it. The formal complaint process is one where the federal employee specifies the exact issues of discrimination and remedies sought. It is important to have legal counsel for this process. Formal EEO complaints often require the completion of an agency-specific form. Additionally, the formal EEO complaint should include a detailed narrative of the discrimination claims.
Contact Us
Our law firm represents and advises federal employees in EEO complaints and mediation. If you need legal assistance regarding an EEO complaint, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
Virginia Wrongful Termination Lawyers for Employees
Our wrongful termination lawyers for Virginia employees often meet with individuals that believe that they have been wrongfully terminated from their employer. When dealing with these types of employment issues, it is important to seek out the advice of a Virginia employment lawyer knowledgeable in these areas of law. This article discusses the rights and […]
Representing Individuals in the NRO Security Clearance Process
NRO Security Clearance Appeals
Representing NRO Federal Employees and Government Contractors in Security Clearance Appeals
Our security clearance lawyers represent employees and government contractors in security clearance appeals before the National Reconnaissance Office (NRO). Each intelligence agency has their own unique security clearance appeals procedures so it is important to hire an attorney with experience before the NRO. This article focuses on the security clearance process for NRO contractors. The procedure for NRO civilian employees varies slightly but is similar in many respects.
The Security Clearance Process at the NRO
The NRO security clearance process is a hybrid of that used by the Department of Defense, but based on the same underlying clearance adjudication principles known as the adjudicative guidelines. Some of the most usual steps in the security clearance process at the NRO is as follows:
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Notification of Denial or Revocation of Security Clearance
When a NRO clearance holder or applicant has a security clearance issue with the NRO, they will receive a notice of revocation letter, usually sent by the NRO security staff, listing the security concerns at issue and other rights in a Memorandum. The security concerns will be usually set forth in paragraph form. The rights on review are set forth in some detail in the documents. Review rights generally include the ability to obtain documents (i.e the right to request the Investigative File) upon which the revocation or denial is based within 45 days and the ability to request a personal appearance with an adjudicator during that timeframe. A personal appearance is an administrative hearing before an adjudicator. An individual can also respond solely in writing and waive the personal appearance. In just about every case, a personal appearance is highly recommended.
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Receipt of the Investigative File
If the Investigative File has been requested from the NRO, the individual will usually be provided with the documentation relied upon by the agency in denying the request for security access. With that response, will come the documentation relied upon in making the adverse clearance determination and a notice usually providing 30 days in which to provide additional documentation and/or schedule a personal appearance. Some portions of the file may be redacted, but one can usually discern the issues that need to be addressed. When the Investigative File is received it is important to prepare to respond with a written response and to prepare for the personal appearance at the NRO.
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Responding to the Security Concerns in Advance of the Personal Appearance
Upon receipt of the Investigative File, the individual will generally want to provide a written reply in preparation for the personal appearance within the aforementioned 30 day period. It is usually important to provide supporting documents, in advance, to give the adjudicator time to review them in advance of the personal appearance which mitigate the concerns at issue. The documents usually need to be provided within a sufficient time prior to the scheduled appearance. The NRO follows the Adjudicative Guidelines set forth by the Directive of National Intelligence in ICPG 704.3 when reviewing security clearance matters.
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The Personal Appearance
The next step in the NRO security clearance process is for the employee to present their response to the adjudicator during their personal appearance at the NRO. This should be done with the assistance of a security clearance attorney. These types of presentations typically take about an hour in length. The individual seeking to overturn the initial decision should be prepared to respond to the concerns at issue and also for potential questions by the adjudicator. The meeting will usually take place at the NRO Visitor’s Center or at another specified location and may usually last for an hour.
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Clearance Decision & Further Appeals
Following the meeting with the adjudicator, a decision is made and issued by the NRO. If the decision is adverse, the individual has the opportunity to appeal, in writing, to the next level to a panel which consists of senior security officers. Alternatively, depending on timing, the individual can withdraw from further appeals and re-apply within a 1-year period from the denial, which could be a potential option to consider. If the decision overturns the earlier security concerns the clearance issue is resolved. Keep in mind that in some cases, following a response, it may make sense to withdraw an appeal. Seeking advice from a lawyer in this field is important.
Contact Us
When an individual is facing security clearance issues at the NRO or before another federal agency it is important to obtain legal advice and potential 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.
Virginia Wrongful Termination Tips
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