In Virginia, most employees are considered “at-will” which usually means they can be terminated at any time and for any reason, unless illegal. Even if an employee is considered “at will” when an employee’s employment ends, an employer may offer severance to an employee in exchange for the employee’s waiver of his or her rights, including the right to file a lawsuit or other claim for any work-related issues. When dealing with severance agreements in Virginia, it is important to have a lawyer review them before they are signed. This article discusses the importance of hiring a severance agreement lawyer and how they can assist employees when they leave an employer.
Most Typical Ways in Which Severance Agreements Arise
In the Commonwealth of Virginia, in the absence of an employment contract, an employer typically has no obligation to provide an employee severance pay or make other agreements with the department employee. If severance pay is offered, an employer will almost always provide the employee with a severance agreement, along with a release to sign. It is important for an employee to obtain legal advice and an agreement review before signing such an agreement.
What is a Severance Agreement?
In Virginia, a severance agreement is a contract between an employee and an employer that specifies the terms of an employment departure. Severance agreements can be offered in cases of terminations, resignations, layoffs and/or retirements. Severance agreements may be available in other types of situations as well. In order for a severance agreement to be upheld, it must usually provide something of value to the employee to which the employee is not already entitled. For example, in most cases, a certain amount of compensation or salary is provided to the departing employee by an employer in exchange for a waiver of rights, usually referred to as a general release, by the employee.
Other Severance-Related Laws
Additionally, in Virginia, along with many other states, employers are generally required to provide an employee necessary time to consider a severance agreement before signing. The Older Workers Benefit Protection Act (OWBPA), in part, requires that an employer provide employees that are over 40 years of age with a 21-day consideration period, or a 45-day consideration period in the case of a large reduction-in-force (RIF), along with a 7-day revocation period. It is too often the case that employers inform an employee of their pending termination and then push them to sign a severance agreement and do not adhere to the procedures for severance agreements. The terms of a severance agreement are generally negotiable between the employer and employee. However, an employee will not usually be told this when the employer offers the severance agreement. This is why it is very important for an employee to obtain legal advice before signing a severance agreement in Virginia.
Typical Issues and Terms in Negotiating Severance Agreements
Some of the more common issues to consider in advance of signing a severance agreement may include, but are not limited to, the following:
(1) Financial terms and timing of severance payments; (2) Continuation of employment benefits (i.e. health or disability insurance); (3) Unemployment compensation challenges; (4) Non-disparagement clauses; (5) Re-employment/re-hiring possibilities for departing employee; (6) Defining the employee and employer claims which are waived; (7) Confidentiality terms and exceptions; (8) Scope of non-competition after leaving employment; (9) Preservation of trade secrets; (10) References and points of contact for prospective employers; (11) Reference Letters; and (12) Consequences of violating the severance agreement
Each severance agreement and termination are different and individually fact-based. Before an employee signs a severance agreement, he or she should consult with an experienced severance agreement lawyer to discuss the rights that he or she may be waiving and potential improvements to the terms of the severance agreement.
Reasons to Retain a Severance Lawyer
Given the above variables in severance agreements, it is crucial to have an employment lawyer review a proposed severance agreement. Besides understanding the terms like those discussed above, a severance agreement attorney can help with the following negotiable issues:
a. Terms: It is important to know that when an individual is given a proposed severance agreement that they can actually negotiate over the terms. Often, when the individual is unrepresented management is unwilling to change the terms of the proposed agreement. However, when an attorney is involved the chances of having a meaningful negotiation and the employee receiving better terms goes up.
b. Money Owed to Employee: If an employee is owed money by an employer (e.g. leave, expenses) the employer must usually pay it with or without a severance agreement. However, it is helpful to include terms in a severance agreement specifying when and how such payment will occur.
c. Severance Payment Terms: This is usually one the more important items in negotiating severance. Having counsel argue for a longer period of severance pay can often be important to an agreement. Experienced severance lawyers have a good sense as to the best arguments to obtain the best potential severance package.
d. Employee Benefits: Severance attorneys can also help clients negotiate over health insurance other employee benefits. This can be critical, especially where health issues are involved, children have insurance coverage, and must usually be negotiated.
e. Non-Disparagement and Reference Terms: If a severance lawyer is representing an employee, they can be useful in addressing and resolving how the parties will refer to the dispute and termination (i.e., will it be changed to a resignation, will the individual receive a reference or reference letter, etc.). A severance attorney can also negotiate the terms of non-disparagement involving a former employer and co-workers. A severance lawyer can navigate and propose solutions to these types of issues in advance.
f. Non-Compete Clauses: Included within many severance agreements are non-compete clauses that can be negotiated. Sometimes attorneys can get the employer to agree not to include one and other times an attorney can potentially get the terms favorably altered.
g. Confidentiality Information Clauses: In most boilerplate severance agreements, there are strict confidentiality clauses. A severance attorney can assist an employee in ensuring that exceptions are made where appropriate.
h. Proprietary Information: When an employee is represented by a severance attorney, they can negotiate over the issues involved. For instance, an employer will want to protect their confidential business information, but an employee may also have personal information that they wish to retain and can be part of the severance negotiations.
i. Release of Claims: An attorney can help to maximize the types of claims released in a severance agreement and claims that can be asserted against the employee. This can often be very important.
If you need assistance with negotiating a severance agreement in Virginia, please contact our law firm at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook. It is very important to have an employment attorney review all severance agreements. Given the legalese that is prevalent in these types of agreements, most employees are fully aware of what they are agreeing to or the ramifications of certain provisions. We review and advise on severance agreements in Virginia and the District of Columbia.
Welcome to the law firm of Berry and Berry, PLLC in the Metropolitan, Washington D.C. area where we specialize in the nationwide legal representation of individuals in security clearance matters. We take our responsibilities to clients very seriously in attempting to help them keep or obtain security clearances. We often represent security clearance holders or applicants in different areas of the country, or even internationally to defend them.
Please visit our main law firm webpage at www.berrylegal.com. We provide legal advice and representation to federal employees, military personnel and government contractors regarding their security clearances. We represent clearance applicants and holders at all steps of the security clearance process, from legal advice prior to completing their initial clearance questionnaires to the final steps of the appeals process, if needed.
We represent clearance holders and applicants before all federal agencies. Our goal is to represent individuals effectively before security clearance authorities, while at the same time understanding that security clearance issues are not always easy to discuss. Discussions with attorneys in the firm are privileged and confidential. The law firm’s founder, John V. Berry, Esq. teaches other attorneys about the security clearance process through continuing legal education courses in multiple states.
We are also members of the Security Clearance Lawyers Association. Please visit our website, www.berrylegal.com and feel free to contact us at (703) 668-0070 or through our contact page should you wish to schedule a time to discuss your individual security clearance issues. You can also visit our security clearance blog where we cover and review legal issues for clearance holders and applicants.
Douglas factors for federal employee disciplinary cases are critical. There are typically two parts to a federal employee’s disciplinary case: (1) whether the federal employee committed the offense charged; and (2) if they committed the offense, what should the penalty be? One of the most significant issues in defending a federal employee in disciplinary cases involves arguing for mitigation of the penalty in a disciplinary case. Arguing for mitigation generally means that we argue for the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case.
The Douglas factors, in federal employee cases, are also referred to generally as mitigating factors. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981).
In Douglas, the Merit Systems Protection Board (MSPB) established 12 different factors that should be considered by a deciding official when evaluating the reasonableness of a disciplinary penalty for a federal employee. When our firm prepares an MSPB appeal for a federal employee client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employee’s case. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. In sum, it is critical for federal employees to understand the Douglas factors or to have counsel that does.
The following is a list of 12 Douglas factors that should be taken under consideration if a disciplinary action is warranted with explanations as to how they can apply to a particular federal employee case.
THE DOUGLAS FACTORS
(1) The nature and seriousness of the offense — and its relation to the employee’s duties, position, and responsibilities — including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was frequently repeated.
The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. This has often been considered one of the most important Douglas factors by the MSPB. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a supervisory position. The first Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (i.e. a repeat offense) and whether the misconduct at issue was intentional. Generally, this Douglas factor one tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty in a given case.
(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
The second Douglas factor for federal employees involves the level of federal employee a case involves. It is traditionally used to attempt to aggravate a disciplinary penalty, as opposed to mitigating one. For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisor, such as GS-15) or type of position (e.g., law enforcement) as an aggravating factor. Many agencies may attempt to overplay their hand with this Douglas factor, but the MSPB will typically assess a position based on their own evaluation.
(3) The employee’s past disciplinary record.
The third Douglas factor involves an evaluation of a federal employee’s past record. The use of a federal employee’s past disciplinary record is one of the more commonly cited Douglas factors. This factor is generally used for purposes of mitigation unless an employee has a past disciplinary action, which is cited. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. For instance, if the federal employee at issue has worked for the federal agency involved for 25 years and has never received prior discipline during that time this can be used as an argument in mitigating the disciplinary penalty. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Sometimes, this third Douglas factor may be confused by federal agencies who attempt to aggravate a disciplinary penalty by basing it on previous misconduct that is not similar to the current action.
(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.
The fourth Douglas factor is one of the most often used arguments we use in support of mitigation of a disciplinary penalty. Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. past performance). For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employee’s outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty.
It is important to argue Douglas factor four with supporting documentary evidence (e.g., commendations, awards, copies of performance records, letters of commendation, letters about performance by supervisors or members of the public, letters of support) as you move forward.
(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties.
Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time after the underlying allegation has occurred and been known. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing so that they must have been trustworthy.
(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
This Douglas factor comes into play when an agency picks and chooses different penalties for similar level federal employees. This occurs quite often. Usually the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by a federal agency between different federal employees. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar.
(7) Consistency of the penalty with any applicable agency table of penalties.
Federal agencies may attempt to base a proposed or final penalty based on an agency’s table of penalties. A federal agency’s table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agency’s table of penalties. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table.
(8) The notoriety of the offense or its impact upon the reputation of the agency.
This Douglas factor generally involves how much the public has been advised of a federal employee’s alleged misconduct. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Generally, this factor comes into play when a federal employee’s alleged misconduct has been reported by the media (press or television). We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employee’s misconduct, arguing that the employee’s actions have caused the federal agency’s reputation to somehow become tarnished. It is important to rebut these issues in a Douglas factor defense.
(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
The ninth Douglas factor is important and is used in many cases where the policy that has been allegedly violated is not clear. In particular, the “lack of clarity” argument refers to the rules governing the underlying allegations at issue. Typically, a federal employee will be proposed for a disciplinary action in a case based on a violation of a particular agency policy. It can often be the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. For example, we might argue that the lack of a clear agency policy on Internet usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government resources.
(10) The potential for the employee’s rehabilitation.
The potential for an employee’s rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employee’s disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employee’s penalty. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action.
(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, or harassment; or bad faith, malice or provocation on the part of others involved in the matter.
This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Our firms often uses this Douglas factor to highlight personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. This is the most important Douglas factor for federal employees that we see.
(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
While not often used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. removal).
Douglas factors for federal employees to understanding potential penalties in pending adverse/disciplinary action or during the course of an MSPB appeal. As a result, it is very important for a federal employee to argue all relevant Douglas factors and provide documentary evidence (e.g. declarations, affidavits, performance ratings, SF-50s, letters of commendation) for the record.
Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. Berry & Berry, PLLC represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues.
New legislation has been passed in Virginia to protect employees from employers that do not pay wages that are owed. If Virginia House Bill 123 is either signed by Governor Ralph Northam or not acted upon by April 11, 2020, employees will have new rights to pursue unpaid wages. Virginia House Bill 123 has been passed by both the Virginia House and Senate. The new law would create a new right to sue in the collection of unpaid wages in Virginia. Virginia House Bill 123 also allow employees the right to seek triple damages and other remedies.
New Employer Damages and Penalties
Virginia House Bill 123 enables Virginia employees to bring suit against employers that fail to pay wages and also allows them to recover their wages owed, plus 8% interest from the date that the wages were due. In addition, Employees may awarded triple damages (three times the amount of their unpaid wages), attorney’s fees and/or other costs if a court finds that the employer knowingly failed to pay the wages that were due. There is also a $1,000 civil penalty against the employee for a violation.
Hypothetical: Under the new law, for example, if an employer fails to pay an employee $2,000 that is earned, they could be liable for that amount, plus 8%, potentially 3 times the wages that were not paid and attorney’s fees incurred by the employee. The $2,000 that was unpaid could easily become a judgment against the employer for $5,000 to $10,000 by the time damages, attorney’s fees and civil penalties are included.
Potential Employer Criminal Penalties
In addition to civil penalties, there are also criminal law penalties in the new legislation. Employers can be found guilty of a misdemeanor, punishable by up to 12 months in jail, if the wages owed are less than $10,000. Employers are to be considered guilty of a felony, punishable by a prison term of up to five years, if the value of unpaid wages is at least $10,000 or if the employer previously has a prior conviction involving a similar wage issue. Criminal liability now only applies if the non-payment of wages was willful with the intent to defraud. If Virginia House Bill 123 is signed or otherwise allowed to become law, it would be effective on July 1, 2020.
If you are in need of employment 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.
Virginia finally has passed new legislation that allows for public sector unions that can bargain for employee rights, their conditions of employment and enter into collective bargaining agreements. On May 1, 2021, Virginia’s new law, Virginia Code § 40.1-57.2, will take effect. This law completely changes the union movement in Virginia for public sector employees. Prior to the new law, counties, cities or towns were not allowed to recognize or negotiate with labor unions or associations representing their public sector employees. This new legislation will affect all types of public sector employees. Under the new law, the county or city has to authorize labor unions in their jurisdiction for them to exist.
The New Union Labor Law in Virginia
The new Virginia law reads as follows:
VA Code § 40.1-57.2. (Effective May 1, 2021) Collective bargaining.
A. No state, county, city, town, or like governmental officer, agent, or governing body is vested with or possesses any authority to recognize any labor union or other employee association as a bargaining agent of any public officers or employees, or to collectively bargain or enter into any collective bargaining contract with any such union or association or its agents with respect to any matter relating to them or their employment or service unless, in the case of a county, city, or town, such authority is provided for or permitted by a local ordinance or by a resolution. Any such ordinance or resolution shall provide for procedures for the certification and decertification of exclusive bargaining representatives, including reasonable public notice and opportunity for labor organizations to intervene in the process for designating an exclusive representative of a bargaining unit. As used in this section, “county, city, or town” includes any local school board, and “public officers or employees” includes employees of a local school board.
What the New Law Means
Collective bargaining for public sector employees had previously existed in a number of Virginia jurisdictions until a 1977 Virginia Supreme Court ruling in Commonwealth v. Arlington County, 217 Va. 558 (1977) which prohibited local governments from collective bargaining with unions. It appears that Fairfax, Arlington and Loudoun Counties are already studying the effects that the unionization will have. Additionally, in preparation for the new legislation Alexandria has proposed a public employees collective bargaining ordinance, including police, fire, labor and trades and general government employees. In general, unions will not be available for senior or managerial-level employees
The new Virginia law will allow counties, cities and towns the ability to adopt ordinances recognizing labor unions and enter into collective bargaining agreements with them. The new law is not mandatory, but allows localities the ability to permit employees to have unions. If such union interest arises, counties, cities, or towns must vote to adopt or not adopt an ordinance authorizing them within 120 days of receiving certification from a majority of public employees in an appropriate bargaining unit. The legislation will ultimately enable police officers, teachers, fire personnel and other types of government employees in Virginia to unionize.
The legislation shows that the days of Virginia is the first step in what will be evolving legislation over the coming years further broadening the scope of labor unions in this state.
If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
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.
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.
With the change in control of the Virginia House of Delegates and State Senate in November of 2019, there is an opportunity to modernize the employment laws in the Commonwealth of Virginia. While there are a number of other suggestions out there already regarding the raising wages, right to work laws and other wage-related issues, I think that there are also some less contentious fixes that could offer employees improved protections. The following 3 suggestions would improve the workplace for Virginia employees.
Three suggestions for the Virginia Legislature to improve the workplace for Virginia employees:
- Enact a Private Sector Whistleblower Law: The Commonwealth of Virginia has been one of those states where whistleblower laws for the private sector are nearly non-existent. Currently, there is no general statute to protect employees employed in the private sector who are terminated because of their disclosures about illegal activities. There has been a common-law cause of action known as a Bowman claim but the courts have long avoided holding employers accountable without a statute in place. We are hopeful that the legislature is able to accomplish this. New York has a very good law that protects private-sector employees from whistleblower retaliation that should be considered. NY Consolidated Laws, Labor Law – LAB § 740.
- Include Sexual Orientation Discrimination in the Virginia Human Rights Act: The Virginia Human Rights Act does not currently protect employees from sexual orientation discrimination. It is time for the Commonwealth of Virginia to change this. Doing so would only require a minor addition to VA Code § 2.2-3900.
- Provide an Employee the Right to Dispute False Termination Allegations: While Virginia and other jurisdictions remain at-will states, there is no reason why an employee should not be permitted to rebut false allegations made against them in a termination matter which have been placed on file with the employer. Massachusetts has an excellent law (MGL Ch. 149, Section 52C) on this subject which provides an employee a complete copy of their personnel file and the opportunity to negotiate what their final employment record will reflect. Alternatively, the law provides the employee the opportunity to respond to negative termination allegations that would be kept in their employment file. Later, if a third party requests information about the person’s former employment, both the termination letter and the former employee’s response would be provided, not just the former employer’s side of the story. While amended recently, the Virginia Legislature would likely have to amend VA Code § 8.01-413.1 to accomplish this needed reform.
- Revamp the Administrative Grievance Process for State/Public Employees: The Administrative Grievance Process for Virginia public sector employees needs to be revamped. Presently, while there is a process that allows public employees to file a grievance and seek a hearing in termination cases, the truth is that the process is heavily slanted to the public employer. The hearing officers rule overwhelmingly on an employer’s behalf even when a termination is flawed. There is no reason why the hearing process cannot provide a level playing field for public sector employees. This would not require legislation, only changes and training at the hearing official level at the Virginia Office of Equal Employment and Dispute Resolution.
If you are in need of employment 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.
This is an article regarding the Equal Employment Opportunity (EEO) mediation process for federal employees. Our law firm represents federal employees in discrimination, harassment, retaliation and sexual harassment cases before the Equal Employment Opportunity Commission (EEOC) and/or individual federal agency EEO offices. Many retaliation, discrimination or sexual harassment cases that are filed through the EEO process proceed to mediation, but each has slightly different processes and procedures depending on a federal employee’s individual federal agency employer.
This article discusses the EEOC mediation process and the potential benefits associated with engaging in that process for both parties involved.
What is the EEO Mediation Process?
Mediation is a voluntary procedure in which both parties attempt to avoid litigation and attempt to informally resolve a complaint through ac meeting. Once an EEO / EEOC complaint / charge or other appeal has been filed, the parties are generally allowed the ability to start out in mediation first. If mediation is agreed upon by both parties, then a mediator is assigned to mediate the dispute. The EEOC provides a nice general summary of the mediation process which varies slightly between federal agencies.
The mediator assigned to the EEO dispute does not make a finding as to who is right or wrong with regards to the dispute and has no authority to impose a settlement on the employer and complainant. Instead, the EEO mediator attempts to assist the parties in exploring and resolving their differences and hopefully come to a settlement of the case. There is also no fee by from the federal agency for the mediator as it is a benefit provided by the federal government to resolve cases.
Who Attends the EEO Mediation Session?
Usually, once the mediation session is scheduled, both parties and their lawyers will attend, along with the mediator. The mediator can be someone employed by the agency or a third-party contractor. The background of a mediator varies significantly. Many of the Department of Defense agencies have their own mediators. It is very useful, however, to have an attorney for both parties to attempt to resolve the case at the earliest stage possible. Furthermore, once an agreement is reached you will need counsel to prepare a written agreement that is fair for the federal employee.
How Does the EEO Mediation Process Work?
The EEO mediation process is a form of alternative dispute resolution (ADR). Usually, the mediation parties will meet at a location located somewhere within federal premises, and it will usually held in a conference room. The session will usually last a day, but can last longer if needed. Once the mediation session begins, a mediation proceeding can vary (based on the personality of the mediator and of the parties) but the process usually will proceed as follows:
1. The mediator will provide a copy of the mediation agreement, if not previously completed. The parties will sign the agreement to mediate. The mediation agreement will almost always ensure that any discussions at mediation, stay at mediation and are held confidential (they can’t be used later in litigation if settlement does not work). Sometimes, the parties are required to turn over their notes for destruction.
2. The mediator will begin by explaining the process of mediation to the parties and invite any questions before the session begins. The mediator may also provide helpful information about how she or he likes to run such proceedings. Mediators, depending on their experience, how many different ways of conducting a mediation.
3. Next, the parties will each provide an opening statement about their position in the case; often it is helpful for the complainant’s side to explain how they feel that they suffered discrimination, sexual harassment, or retaliation. Following the first opening statement, the other side will provide their view of the claim and how they feel about the complaint that was filed.
4. The parties will then usually discuss the EEO complaint, the merits of the complaint and any employer defenses. The mediator may attempt to steer the discussion into a dialogue to attempt to get the parties to begin a discussion.
5. The parties may then discuss resolution or the parties may be separated by the mediator in separate meetings (normally called caucuses). A mediator may go back and forth between the parties discussing proposals and responses from each side to the other side.
6. The most important part of the mediation process, from our experience are the caucus sessions. That is where most agreements are found.
7. The mediator will then, to varying degrees, attempt to bring the parties to terms agreeable to both sides, typically a compromise between what both sides want. Sometimes this occurs, and sometimes this does not.
8. If settlement terms are agreed to, the next step will be to reduce the agreement to writing and have all parties execute the agreement.
Formal Written Settlement Agreement
Following the verbal agreement between the parties agreed to at mediation, a written settlement agreement is prepared and entered into the record. Usually, where parties are represented by counsel, this will be drafted and reviewed by the attorneys. The agreement will bind both parties to a resolution and the agreed-to terms of the settlement (e.g. reinstatement, benefits, severance, backpay, promotion, attorney fees). When a settlement agreement is signed, the EEO complaint will be then withdrawn as part of the agreement in most cases.
According to EEOC statistics, the settlement rate at mediation was approximately 72-75%. A binding written agreement reached during the EEO mediation process or through a federal agency’s EEO office can be enforceable in court if a party does not live up to their side of the settlement. In sum, we consider it a victory if both parties can resolve a case and save the time and costs of further litigation through dispute resolution efforts.
If Mediation Doesn’t Result in Settlement
If mediation does not resolve an EEO complaint by a federal employee, then the parties will revert to the investigative process, where both the federal agency and complainant will retain their rights to have the matter investigated. The investigator will be assigned and begin the EEO investigation for the federal employee. In such a case documents will continue to be reviewed and discovered and relevant witnesses will be interviewed.
Following the investigation, a Report of Investigation (ROI) will be prepared by the investigator which will provide details of the investigation but not issue any findings. For federal employees, they will then have the initial option of proceeding to an administrative hearing before the Equal Employment Opportunity Commission (EEOC) (this is generally recommended) or one can request a final agency decision (FAD), which is an internal decision by the federal agency on the claim of discrimination. The court process, if needed, can then follow.
In conclusion, it is generally a good idea to attempt to mediate an EEO complaint prior to litigating a claim as many cases are often resolved. However, if this is not the case, then each party may resume the formal investigation and litigation process.
If you are a federal employee in need of assistance with filing an EEO complaint, 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.
Today marks the beginning of a new blog dedicated to employment law issues in Virginia. We hope to write articles once or twice a month on areas of employment law that interest employees in Virginia.
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.
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.
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.