What is Scattered Castles for Clearance Holders?

Many new to the security clearance world are not familiar with Scattered Castles. Scattered Castles is a centralized database maintained by the U.S. Intelligence Community (IC). Its primary function is to track security clearances, accesses, and affiliations across various intelligence agencies. Unlike the Department of Defense’s Defense Information System for Security (DISS), which covers most military and defense contractors, Scattered Castles is unique to the Intelligence Community.

This database acts as a secure, internal database of who has been vetted for specific clearances, including Top Secret, Sensitive Compartmented Information (SCI), and Special Access Programs (SAP). It ensures that when an individual moves between agencies or projects, their clearance status and investigation history can be verified quickly without duplicating costly and time-consuming background investigations.

Scattered Castles is Important to Clearance Holders

For employees, contractors, and military personnel seeking to work in intelligence roles, Scattered Castles can be both beneficial and confusing:

• Streamlined Transfers: If you move from one intelligence agency to another, your clearance record in Scattered Castles can often (not always) help expedite reciprocity (recognition of your clearance by the gaining agency).
• Accountability: The database provides agencies with a way to confirm that you hold the correct level of access before being “read in” to certain classified programs.
• Limitations: Scattered Castles is not directly accessible to applicants or even all security officers. This can make it difficult for individuals to verify their own status without legal or security office assistance. Often, individuals can request, by themselves, or through counsel, a copy of their Scattered Castles records.

Common Misconceptions of the Database

A common misunderstanding is that Scattered Castles is strictly a database of holder negative information. In reality, it is not a disciplinary or derogatory database. It does contain information about access approvals and denials. However, it is a database that records security accesses/denials, dates and other relevant data for future review. Another misconception is that placement in Scattered Castles guarantees other employment opportunities. While the database can confirm your clearance level, employment decisions are still up to individual agencies and employers. There are often issues involving reciprocity that need to be resolved. The database does not fix these issues.

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The Scattered Castles database is one of the key aspects of the IC clearance process. For cleared professionals working in or seeking roles that involve access to classified intelligence, understanding how Scattered Castles functions, and where its limitations lie, can make a critical difference in career planning. If you believe your clearance status in Scattered Castles is preventing you from advancing, it is time to consult a security clearance attorney who can advocate on your behalf and guide you through the often-complex bureaucracy of intelligence community access.

An interesting topic in Virginia employment law involves an employee’s right to privacy within the workplace. While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing almost as fast as technology is. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and our court system.

Thoughts on Employee Use of Employer Computers

In general, for a number of reasons we recommend that employees avoid using employer technology to conduct their own personal business. Virginia employers have been given a fair amount of leeway under existing laws to monitor employees in the workplace which means that employers can attempt access in reviewing their own computers and networks.

Regarding this issue, one of the biggest concerns that we have run across in representing employees in wrongful termination cases in Virginia involves an employee’s use or alleged misuse of an employer’s email, computers, network or Internet. Frequently, one of the first actions taken by an employer following a contentious termination is to conduct an examination of a former employee’s computer or prior Internet usage. The usual result is that the employer often claims that the former employee was conducting personal business or misusing the employer’s network. An employer may then claim that the employee violated Virginia’s Computer Crime Act, VA. Code § 18.2-152.3 or misappropriation or theft of trade secrets.

The best way for an employee to avoid these types of issues from arising either during or after employment is to not use the employer’s computer or network for any personal business.  While it can be inconvenient to consult legal counsel over these types os issues with employers, it can also be very costly to get it wrong and pay the costs of legal defense when an employer wants to pursue a former employee in some way.

Email and Internet Monitoring of Employees

Employers that monitor employee email or Internet use should obtain legal advice ahead of time to avoid the risk of running afoul of criminal and other statutes. This cannot be overemphasized. That said, an employer in Virginia typically has the ability to monitor emails and Internet usage on their own networks. Employers should warn employees about monitoring in advance. We usually advise employees that they should expect that their work email account may be monitored and should not be used for personal business even if they have not been so informed of a company’s decision to monitor email.

Employers also need to be careful to avoid accessing employee private, non-work email accounts to which they may have access. For example, an employer should avoid attempting to inappropriately log into a former employee’s private email account that remains accessible from the employee’s former computer. Virginia also has enacted the Virginia Computer Invasion of Privacy Law. If an employer does something egregious in the course of monitoring email or Internet usage, then it could be subject to a potential claim under this law or perhaps a tort (personal injury) claim.

VA Code § 18.2-152.5 provides for privacy protections for all individuals for unauthorized access.  Specifically, the privacy provisions of the Virginia Code provide that:

A person is guilty of the crime of computer invasion of privacy when he uses a computer or computer network and intentionally examines without authority any employment, salary, credit or any other financial or identifying information, as defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3, relating to any other person. “Examination” under this section requires the offender to review the information relating to any other person after the time at which the offender knows or should know that he is without authority to view the information displayed.

Telephone and Voice Mail

Some employers also monitor work-related employee telephone calls. A Virginia employer who wants to monitor telephone calls of an employee or voice mail messages must usually warn the employee in advance and the monitoring must be done in the scope of normal business. This is often accomplished by the employer at the beginning of employment, through policies listed in an employment contract or handbook. There are many pitfalls in monitoring telephone calls and voice mails of employees and this ideally should be done after receiving legal advice given that potential criminal issues could result if done incorrectly under both federal and Virginia wiretapping laws.

Security Camera Monitoring of Employees

With the widespread use and availability of small wireless cameras, a number of employers have attempted to monitor their employees using such technology. The courts have generally upheld an employer’s right to monitor its employees with security cameras so long as the monitoring is not particularly invasive. This has not yet been subject of major litigation in Virginia but it is no doubt forthcoming. In other jurisdictions, some courts have upheld employee privacy rights in situations where camera monitoring of employees has been very invasive such as with cameras in locker rooms or bathrooms. Many courts have permitted the use of such camera monitoring to the extent that employees are aware of it and can see the cameras, and that it is not misused.

Finally, Virginia does not yet recognize the traditional claim of invasion of privacy, which could help in employee rights claims when an employer goes too far. However, serious breaches of employee privacy can result in other types of tort claims for intentional infliction of emotional distress. Virginia case law and national trends continue to change and more employment rights and the ability to sue for egregious privacy violations are likely to develop in the future.

Social Media

In Virginia, state law puts prohibitions on employers attempting to inject themselves into an employee’s social media accounts. VA Code § 40.1-28.7:5  prohibits employers from seeking an employee’s social media login credentials or requiring an employee to add an employee, supervisor, or administrator to their social media contacts associated with their accounts.

Microchipping Employees as a Form of Monitoring

While definitely a potentially future issue, at least 1 employer was in the news for offering employees a microchip to facilitate employer tasks.  Three Square Market, a technology company in Wisconsin asked workers to consent to having a microchip, about the size of a grain of rice implanted between their thumb and forefinger.  Approximately 50 of the 80 company employees agreed to this procedure.  The microchip will allow employees to check into work, access computers, open doors and purchase company food and drink.

This is clearly a major issue coming down the road, but is likely to take a number of years to develop through litigation.  For instance, it could easily be the case where states vote to ban such a practice, in advance, or otherwise regulate it. For now, it is just something to keep in mind for the future.

Employee Monitoring Cases Nationally

While Virginia has not been subject to too many employment cases as of yet involving employee monitoring, the issue has reached a number of other states.  a U.S. District Court has held that employees have no reasonable expectation of privacy even when employers have promised it. In Smyth v. Pillsbury, 914 F.Supp. 97 (E.D.Pa. 1996), the court ruled that an employer could read personal e-mails even when it had told employees it would not.

The U.S. Supreme Court, in Quon v. City of Ontario, 130 S. Ct. 2619 (2010), held that a police officer, through his department issued device had no expectation of privacy in his text messages, even though his commanding officer had promised him that his messages would not be monitored. In Quon, the Court held that the officer should have ignored what his commanding officer told him and relied upon the boilerplate language in a form he was given with the device.

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If you need assistance with Virginia employment law issues or issues involving the use of employee monitoring, please contact our office at (703) 668-0070 or here to schedule a consultation.

Our security clearance attorneys represent government contractors and federal employees in the security clearance process at the Defense Intelligence Agency (DIA). Each federal agency is different in evaluating security clearance issues and the DIA is no different. The DIA security clearance appeals process is initially governed by Executive Order 12698, which delegates clearance processing to the individual federal agencies. Lastly, the DIA has its own rules for handling security clearance appeals. These DIA rules are enforced by the Defense Intelligence Central Adjudication Facility (DICAF).

Background of the DIA Security Clearance Appeals Process

The security clearance process for federal employees and government contractors at the DIA is known as having more due process than most of the other Intelligence Community (IC) agencies. The process is more like the Department of Defense (DoD) process than other IC agencies. That said, the basic rules remain the same under the Executive Order and Security Executive Agent Directive 4 (SEAD 4). 

The DIA security clearance process is managed internally by DICAF. Like many other federal agency security clearance processes, there can be some unique steps in the process.  The typical steps in the DIA contractor security clearance process are as follows:

1.  The Individual is Notified of Revocation or Denial

When an DIA clearance holder or applicant runs into security concerns, the DIA, usually after some review and followup in the investigation process, makes a decision. Either they accept the security concern as is and adjudicate it favorably or they issue a Notice of Intent to Revoke or Deny (also known as a Statement of Reasons (SOR)). This document will provide the security concerns at issue and other rights in a Memorandum. 

The security concerns will be usually set forth briefly in a 2-4 page letter. The SOR will usually provide copies of the security guidelines at issue and a page entitled Information and Instructions for responding. The rights on review are set forth in some detail in the documents. There is a right to request a review of the decision.

2. Timely Request a Review and Personal Appearance

There is a right to request the DIA Clearance File containing documents in the case. Individuals appealing the DIA decision will want to ensure that they specifically request that they are seeking a Personal Appearance (hearing) as well. This is critical. Currently, these rights must be exercised within 10 days to be timely. Keep in mind that these deadlines have shifted over the years, so it is important to be read the SOR carefully.

3. Receipt of the Security Clearance File

If requested, you will receive the DIA Security Clearance File before you have to draft the written response. After your properly formatted request, you will be provided with documentation relied upon by the DIA in proposing to deny or revoke your security access. As opposed to some federal or IC agencies, the DIA does a fairly good job of explaining the specific security concerns at issue.  This provides a better basis in which to respond. When the Clearance File is received it is important to subsequently file a written response and to prepare for the PA at the DIA. In the response letter, in a PA has been requested, you will be scheduled for a a hearing in due course.

4. Written Response to the DIA

Upon receipt of the Clearance File, the individual will generally want to provide a written response in preparation for the PA. It is usually important to provide supporting documents, in advance, to give the adjudicator time to review them in advance of the PA. The documents usually need to be provided within a sufficient time prior to the scheduled PA.

5. The Personal Appearance (PA) Hearing

The next step in the DIA security clearance process is for the individual to present their response to the adjudicators during the PA. We have represented individuals both in the DC and Reston locations for these purposes. 

The DIA will notify you by letter about the PA hearing scheduling. You should retain a security clearance lawyer to assist you with this presentation. These types of hearings typically take about an hour or more in length. The individual seeking to overturn the initial security clearance decision should be prepared to respond to the concerns at issue and also for potential questions by the adjudicator. 

The meeting will typically have a number of participants including a panel of individuals. There will likely be DIA counsel, a DIA psychologist and other adjudicators from DICAF. They will then issue a decision on the security access appeal following the PA.

6. Appeal to the DISAB

Following the PA, a written decision will be rendered. If the decision is unfavorable, the individual has the ability to appeal the decision to a second step appeal at the DISAB. The second step appeal is conducted by a panel of senior security officers. This stage is in writing only and must be submitted within 15 days of the receipt of the denial. It is important to note that you must also complete the election to appeal to the DISAB form within 5 days of receipt from the denial 

7. Final Clearance Decision and Next Steps

Once the second step review is completed by the DISAB, the panel will issue a final decision. If unfavorable, then the individual will not be able to apply for a security clearance through DIA for one year. A DIA denial, in some cases, can affect a Department of Defense security clearance as well.

The DIA Clearance Process for DIA Employees 

The DIA security clearance process for federal employees is different than that for government contractors that was described above. The dual nature of being employed and maintaining a security clearance causes the DIA to bring employment actions (removal) together with a security clearance revocation. If you do not succeed in the revocation action, a removal by DIA from federal employment will move forward and likely be upheld.

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When an individual is facing security clearance issues at the DIA 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.

We defend federal and local (Virginia, DC, Maryland) law enforcement officers and supervisors in integrity issues. As you know, integrity is the cornerstone of law enforcement. The public’s trust, the judicial system’s reliability, and the pursuit of justice all depend on the credibility of those sworn to uphold the law. Yet, a single lie or even an omission—on a report, under oath, or in any official or unofficial capacity—can end a career, compromise a case, and permanently tarnish an officer’s reputation. This is especially true under the legal doctrine established in Giglio v. United States (1972), a landmark Supreme Court case that has lasting implications for law enforcement officers today. It leaves little room for even one mistake. When these types of issues arise, we defend law enforcement officers. 

What Is the Giglio Rule?

The Giglio decision mandates that the prosecution must disclose any information that could impeach the credibility of a government witness—including law enforcement officers. If an officer has a known history of dishonesty, bias, or other impeaching conduct, prosecutors are obligated to inform criminal defense attorneys. Failure to do so can violate a defendant’s right to due process and result in overturned convictions.

Put simply, Giglio means that an officer’s credibility isn’t just important—it’s critical. Many prosecutors, when faced with an officer with negative Giglio information to produce will simply drop an otherwise completely good case. 

When a Lie Becomes a Career-Ending Problem

An officer caught in a lie—whether it’s falsifying a report, shading the truth in testimony, or misleading internal affairs—may be placed on a “Brady list,” “Giglio list,” or “Lewis List” by prosecutors. These lists identify officers whose testimony may no longer be considered reliable. Being on such a list can make it nearly impossible to testify in court, which, in turn, can severely restrict an officer’s ability to perform essential duties.

In many federal agencies and departments, officers who become Giglio-impaired are reassigned to non-enforcement roles or face proposed termination. When this happens, the prosecutor may inform the department or federal agency that they will decline to ever use you again as a witness. This frequently will cause a federal agency or department to place the officer on leave and initiate the termination process. A good example of how this can affect an officer came up in the case of Marin v. DHS (2025). In that case, the U.S. Court of Appeals for the Federal Circuit upheld a removal because a U.S. Attorney deemed the federal law enforcement officer to have credibility issues (i.e. Giglio).

And the stain of Giglio doesn’t just disappear—it can follow an officer throughout their career, even across state lines. When seeking a new law enforcement position, you almost always have to allow the new employer access to your old employer’s records.

Examples of Potential Giglio Violations in Action

• An officer falsifies or omits a detail in a report to make probable cause appear stronger in a criminal case.
• An officer is found to have lied during an internal affairs investigation.
• An officer was found to have lied in his tax filings and the department or agency finds out.
• An officer doesn’t lie but omits key details during an investigatory interview.
• An officer withholds key facts during testimony, later discovered through body-worn camera footage.

Each of these actions, if exposed, can render that officer’s future testimony suspect—potentially undermining any case in which they are involved. When this happens, it is commonly the case that the officer will potentially face termination. In some cases, the officer will be fortunate to be assigned to duties which wouldn’t subject the officer to having to testify in court.

How Giglio Can Affect You and Others

The damage extends beyond individual consequences. A single Giglio violation can:

• Cause other officers or supervisors to be forced to testify against you.
• Lead to civil liability for the officer.
• Cause overturned convictions.
• Require closed investigations to be reopened.
• Damage the public’s trust in an entire department.
• Invite civil liability for the agency.
• Harm prosecutorial partnerships and coordination with the federal or local prosecutor’s office.

Protecting Your Credibility: Best Practices

1. Tell the Truth—Always: This may seem basic, but it cannot be overstated. Accuracy and honesty must guide all official conduct. Of course, if there are legal issues involved, it is important to obtain legal advice from an attorney. If there is a criminal issue involved, legal advice before participating in an interview is critical. In some cases, not testifying will be the best course of action.
2. No Omissions: If there is a material fact that is important in a case, but you are not asked about it in an interview, it is often important to disclose it. Not doing so can lead to a large of lack of candor, which is different than a dishonesty charge.
3. Document Everything/Save Data: Meticulous, truthful documentation helps prevent misunderstandings and protects against false accusations. When situations that are unusual arise, it is often important to keep a journal of the actions you took (or other steps) if you know that you will be interviewed later.
4. Own Mistakes Early: If you make an error, report it promptly. Transparency can mitigate long-term damage. Inlack of candor cases, coming forward early can sometimes avoid disciplinary issues. 
5. Understand Departmental and Legal Obligations: Stay educated on your agency’s policies, Brady/Giglio requirements, and ethical expectations. They basically boil down to two things: (1) tell the truth in all situations, and (2) if questioned about an incident, do not leave out important details.  
6. Seek Legal Guidance When in Doubt: If you face a potential credibility issue, consult a law enforcement attorney before proceeding. Disclosures, when criminal issues are at stake, may change how you approach investigative interviews or disciplinary defense.
7. Legal Defense: If accused of dishonesty or lack of candor, it is critical to hire a law enforcement attorney to help defend you. Our lawyers defend law enforcement officers and supervisors in trial (civil service) boards, before police departments, before federal law enforcement agencies, and in front of the Merit Systems Protection Board or in arbitration.

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We defend federal law enforcement officers nationwide, in addition to officers in Virginia, DC, and Maryland. Giglio issues must be handled carefully. In a profession built on public trust, even a single lie can dismantle years of honorable service. We defend law enforcement officers who run into Giglio issues. We can be contacted at (703) 668-0070 for a consultation or through our website.

We represent Virginia employees in non-compete agreement issues. Non-compete agreements and clauses are important for employees to consider in joining or leaving an employer. Northern Virginia, given its proximity to Washington, DC, has numerous businesses engaged in government contracting. Given this fact, and the fact that these types of businesses tend to be very competitive, there has been a significant rise in the number of employees that are required to sign non-competition or “non-compete” agreements as part of their employment requirements. Over the past 10 years or so, we have noticed that businesses in Virginia are using “non-compete” agreements in their hiring processes far more than before. The rise in non-compete agreements in Virginia has not been limited to just government contractor positions, but also includes many types of other businesses as well ranging in size from small to large. At the same time, the laws regarding non-compete rules are evolving in Virginia and elsewhere.

What is a Non-Compete Agreement?

A non-compete agreement is merely a written agreement where an employee agrees not to leave an employer and then compete for the same business when they leave that employment. Typically, non-compete clauses are inserted in employment agreements by an employer during the hiring process and have become somewhat commonplace. Common characteristics of non-compete agreements include duration of the non-competition period, limits as to competition for certain customers and the geographic boundaries of the non-competition area. If you work in Virginia and have signed a non-compete agreement with your employer, former employees can face legal issues if they violate them. That is why it is important to get legal help in negotiating these agreements and attempting to resolve issues that later arise from alleged violations by an employer.

Types of Issues That Arise in Virginia Non-Compete Agreements

There are any number of issues that can arise because of a non-compete agreement or clause in Virginia. An employer may accuse a former employee of violating the prior agreement. In such cases, hiring a Virginia employment attorney is critical to resolve the issues before they get into court. Non-compete agreements in the Commonwealth of Virginia tend to be viewed as somewhat disfavored and have been viewed somewhat negatively as a type of restraint on business. As a result, in Virginia, non-compete agreements have a better chance of success, if enforcement is attempted, the more narrowly tailored they are. Courts in Virginia will enforce reasonable non-compete agreements. Non-compete agreements, in this narrow sense, must be prepared to: (1) protect a bona fide employer’s interest; (2) must be reasonable; and (3) must not be against public policy. There are a number of specific features that come into play in Virginia with respect to these 3 variables. Typically, a valid business interest is considered the extent to which a non-compete agreement protects the employer from poaching existing customers, trade secrets, or other confidential information.

Non-Compete Agreements Should be Narrow

Keeping in mind that these types of non-compete agreements must be drafted narrowly, courts in Virginia will not enforce agreements that are overbroad or unreasonable. Some pitfalls in non-compete agreements include the following: (1) agreements that impose overbroad geographical limitations (i.e. a prohibition on competing in the United States where the service area is only a portion of Virginia); (2) unreasonable time constraints (i.e. a 20-year restriction; although each determination is based on the individual facts of a case); (3) agreements prohibiting an employee from working in any capacity for a competitor; (4) agreements whose terms and not clear or discernible; (5) agreements for licensed professionals (physicians, lawyers, etc.) which may be barred on public policy grounds; and (6) agreements that unfairly burden an employee’s ability to obtain alternative employment. The bottom line is that employers should be reasonable in drafting non-compete agreements for employees.

Other potential issues with non-compete agreements exist and it is important for an employer to structure a clear and fair non-compete agreement in order for it to be upheld by the Virginia courts. It is important for an employee to understand their obligations as well. Since July 1, 2020, with a change in law, Virginia has prohibited employers from entering into, enforcing or threatening to enforce non-compete agreements with low wage employees. The definition of low-wage employee changes based on the Commonwealth’s average weekly wage. A good case to review by the Virginia Supreme Court on these issues can be found at this link. Additionally, the federal government may or may not be successful in attempting to further reduce the ability of some employers to use non-compete agreements for employees in the future. As mentioned above, this area of law is in the process of evolving.

Obtain Legal Advice from Virginia Non-Compete Lawyers About Non-Compete Agreements

When negotiating a non-compete agreement or clause or when questions arise as a result of a non-compete agreement it is very important to seek an experienced Virginia employment lawyer. This is best accomplished prior to signing an agreement or when potential violations arise.  Our law firm represents employees and businesses with respect to non-compete agreements. We can be contacted at www.berrylegal.com for legal advice and consultation in such matters.

On January 20, 2025, President Trump issued a Presidential Memorandum (PM) directing federal agencies to, as soon as practicable, take all necessary steps to terminate remote work arrangements and require employees to return to work in person at their respective duty stations on a full-time basis, provided that the department and agency heads shall make exemptions they deem necessary. On January 22, 2025, more detailed guidance was provided on the Return to Office through the Office of Personnel Management. The OPM guidance instructs agencies to revise their telework policies to require employees to work full time at their respective duty stations, unless excused from this requirement based on disability, qualifying medical condition, or other compelling reason certified by the agency head and the employee’s supervisor. OPM’s guidance recommends that agencies be in full compliance with the PM within 30 days.

Things to Keep in Mind

Communicate with Leadership

One of the first key things to keep in mind with the Return to Office order is to maintain open lines of communication with your supervisors and leadership. Every employee’s circumstances will be different and making sure to keep your supervisor and leadership informed of your specific situation and any barriers you may have for a Return to Office may help down the road in trying to obtain an exception to the requirement. Such exceptions will need to be based on compelling reasons and be approved by the employee’s supervisor and agency head. It is not yet clear what will qualify as compelling reasons, but one example that has been discussed pertains to military spouses who work remotely. It is likely that there will be other exceptions as well.

Medical Conditions, Disability, and Reasonable Accommodation

The OPM guidance instructs that employees can be excused from the Return to Work order based on disability or qualifying medical condition. For employees who already have such conditions on file with their agency and are working with Reasonable Accommodations in place, employees should make sure that these accommodations address telework or remote work to ensure that they remain in place as the Return to Office process unfolds. For those employees who have a disability or qualifying medical condition, but do not have a reasonable accommodation in place yet, the employees should work quickly to initiate those requests to seek accommodations that will address their specific conditions and needs. The Rehabilitation Act still protects reasonable accommodations that can include telework.

Union-Related Issues 

Some employees who are members of bargaining units within federal agencies may be covered by previously negotiated collective bargaining agreements that address remote work and telework. Currently, it appears that OPM will not interfere with those agreements. However, it is likely that efforts may be taken to change those agreements. Such efforts will take time to unfold but employees should remain aware of their Union’s activities in this regard. Furthermore, the likelihood of litigation over many of these return to work orders by national unions remains high.

Avoidance of Discipline

Once deadlines are established for Return to Office, employees who fail to do so and are not on approved reasonable accommodations or who do not have an exemption based on compelling reason could run into disciplinary issues for failure to follow directives. In the event that such discipline is issued, employees should be cognizant of their rights to respond to such disciplinary actions and challenge those actions through established procedures.

Deferred Resignation

Federal employees were recently notified, on January 28, 2025, of an option for a deferred resignation. The deferred resignation instructs employees to make an election by February 6, 2025, and will theoretically provide employees with leave pay until September 30, 2025. For those employees who cannot physically return to the office, this may seem like a reasonable alternative. However, federal employees should be cautious of this program and seek legal advice before making any such election. The legal basis for the program is not clearly established which may subject the program to legal challenge. There is also the potential that the deadline could be extended or curtailed. It is just too soon to tell.

The program’s email also fails to provide much-needed clarity around how the program would be implemented, whether administrative leave would be utilized, who would be required to continue working, and how an election may impact an employee’s ability to transfer to a different position. Due to these various unknowns, employees should speak with experienced legal counsel before electing to participate.

Contact Us

It is important for a federal employee with telework issues or considering the deferred resignation issues to speak with counsel. Berry & Berry, PLLC represents federal employees in these types of federal employment issues and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding these or other federal employment issues.

Security Clearance Representation Nationwide

Welcome to the law firm of Berry and Berry, PLLC in the Metropolitan, Washington D.C. area. We specialize in the nationwide legal representation of individuals in security clearance matters. We have represented thousands of clients across the country in their security clearance matters for over 25 years. Our goal is to work hard for our clients in attempting to help them keep or obtain their security clearances. Our firm represents security clearance holders or applicants in different areas of the country, or even internationally, to defend them. We represent security clearance applicants at all levels, including Secret, Top Secret, Sensitive Compartmented Information (SCI), Special Access Programs (SAP), Yankee White and others. We also defend these individuals in suitability or public trust appeals which are slightly different but involve many of the same principles.

Security Clearance Assistance Available

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 (SF-86) to the final steps of the security clearance appeals process. Our lawyers represent clearance holders and applicants before all federal agencies. We also specialize in representing security clearance clients before Intelligence Community agencies. Our goal is to represent individuals vigorously before security clearance authorities. At the same time, we understand that many security clearance cases involve sensitive issues. Discussions with attorneys in the firm are privileged and confidential.

Additionally, we realize that security clearance issues can happen to anyone and treat our clients with respect no matter what the issues involve. Given the changes in technology, it is easier than ever, to represent individuals nationwide. In the past, we might have had to fly to a location across the country to represent an individual in a security clearance hearing, the Government has incorporated Microsoft Teams and Zoom for many security clearance proceedings. This has made it easier than ever to represent clients no matter where they live and work.

Types of Nationwide Security Clearance Defense Available

There are many different types of issues where we can represent security clearance clients nationwide. Some of the areas where our security clearance attorneys assist individuals include:

1. Pre-application Guidance (SF-86 or electronic forms);
2. Investigative Interview Guidance;
3. Polygraph Considerations;
4. Responses to Security Clearance Interrogatories;
5. Responses to Statement of Reasons or Notices of Intent to Revoke;
6. Representation in Security Clearance Written Responses; and
7. Representation in Security Clearance Personal Appearances before Administrative Judges and Adjudicators.

Security Clearance Background of Firm

Our lawyers are extremely experienced in security clearance law. The law firm’s founder, John V. Berry, Esq. teaches other attorneys about the security clearance process through lawyer continuing legal education courses in multiple states. Our firm has multiple attorneys who are very experienced in representing individuals in security clearance matters. We are also members of the Security Clearance Lawyers Association. You can also visit our security clearance blog where we cover and review legal issues for clearance holders and applicants. Furthermore, please review our website resources for helpful information about the security clearance process.

Contact Us

Our security clearance lawyers represent individuals throughout the United States. We would be happy to meet and try to assist you with your security clearance matter. Please contact Berry & Berry, PLLC to schedule a consultation with a security clearance attorney. You should 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. We would be honored to go over your security clearance issues and attempt to find a solution for you.

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 they do not do so. As an example, if an individual alleges sex harassment / discrimination in the workplace and the claims are not investigated, an employer can be more readily held liable by employees affected by the conduct. The same type of investigation is necessary when dealing with claims of whistleblowing or other alleged inappropriate conduct at work.

The Steps in a Workplace Investigation

The beginning of the process starts with an employee complaint about misconduct in the workplace. This can happen where the employee reports it through a supervisor or other management personnel.  Once reported, the misconduct complaint can lead to an investigation. Almost always, in most employment investigations, the employer will hire an outside law firm (or occasionally use internal attorneys) to conduct an employment investigation and will act as the investigator. Once the investigator is appointed, they will start their investigation. Keep in mind that the employer’s goal in these investigations is to minimize liability for the employer. The complaining employee may also be represented by legal counsel.

While an investigator may find an individual employee at fault, the investigator usually wants to conclude and document that there was no fault on the part of an employer. The following steps usually take place in an employer investigation:

1. An employees files a workplace complaint;
2. An investigator is usually hired or appointed to investigate the complaint;
3. The investigator will review the complaint and plan for a thorough investigation;
4. The investigator will review any documentation or emails or other evidence available to prepare for interviews;
5. The investigator will interview the complainant or complainants about the conduct complained of;
6. The investigator will interview the employees with knowledge of the issues in the complaint;
7. The investigator interviews the accused employee or employees for their side of the story;
8. The investigator conducts follow-up interviews of any witnesses as needed and ties up lose ends;
9. The investigator issues a final report with recommendations to an employer; and
10. The employer will take action based on the findings in the report, usually referred to as a Report of Investigation or ROI.

Results of Workplace Investigation

Once the employer’s investigation is over, the results and actions taken by the employer can vary. A formal report is usually prepared, along with recommendations on actions to be potentially taken. The investigation can result in the termination or other discipline for an accused employee. The investigation can also vindicate the accused employee. In either event, an employer must be careful in avoiding retaliation against a complaining employee, even when their complaint is found to not be justified. Each investigation is different, and different employers vary in how they handle workplace investigations. The proper handling of an employment investigation can protect employees in the workplace from potential disciplinary action.

Importance of Having Legal Counsel

When facing an employment investigation in Virginia it is important to have legal counsel advising you. Otherwise, the employer’s attorney will essentially run the show with respect to a likely predetermined outcome.  Often, this type of outcome can lead to termination so it is important to be represented.

Contact Us

If an employee needs assistance with an employment investigation or other issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation.

We are often asked about reasonable accommodations by employees in Virginia when they develop a medical condition that requires a change in
their duties or other adjustments. We advise private, federal, state and county sector employees in Virginia this regard. The reasonable accommodation process applies to both employees and job applicants in all states including the Commonwealth of Virginia.

What is a Reasonable Accommodation?

The usual first question that comes up is what is a reasonable accommodation?  A reasonable accommodation is an employee’s request to modify their employment conditions, assignments, hours, etc. in order to allow them to continue working in a position despite a disability. Most employees are covered under the Americans with Disabilities Act (ADA) which covers reasonable accommodations. Federal employees are covered under the Rehabilitation Act which is very similar to the ADA. According to these laws, employers are required to engage in the reasonable accommodation process to qualified employees unless it would create an undue hardship for them. The Equal Employment Opportunity Commission (EEOC) and other civil rights governmental entities enforce reasonable accommodation matters.

In the Commonwealth of Virginia, employees are also covered under the Virginians with Disabilities Act which applies to all employers. Under both the federal and state laws, the goal of the reasonable accommodation process is to enable a qualified employee with a disability the opportunity to enjoy an equal opportunity in employment.

How Does an Individual Request a Reasonable Accommodation?

A request for reasonable accommodation can be formal or informal. Some employers have created specific forms covering reasonable accommodation requests and others simply involve verbal discussions between the employee and their immediate supervisor. The most typical reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements. Usually, an employee will ask for a reasonable accommodation by approaching their supervisor or Human Resources department, depending on the employer and asking for one. Once requested, there is usually a discussion about the reasonable accommodation requested.

The Interactive Process

The reasonable accommodation discussion between an employer and employee is often called the “interactive process” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request. The interactive process does not mean that an employer has to grant every accommodation sought, or even the specific one requested. The employer is required to give a reasonable effort at resolving the reasonable accommodation at issue.

Examples of Reasonable Accommodations

The following are some examples of reasonable accommodation requests. There are far too many to list, but the following are examples.

Example A: An employee develops carpal tunnel syndrome and needs a new keyboard because their current keyboard is aggravating their condition. A request for a new keyboard is a request for a reasonable accommodation.

Example B: An employee is undergoing medical treatment in the morning for epilepsy. He informs his supervisor that he needs an adjustment in his starting time so that he can take his medication in the morning before starting work. This is a request for a reasonable accommodation.

Example C: An employee develops a heart condition and needs to take daily breaks at a certain time in order to take their medication. A request to take breaks in order to take medication is a reasonable accommodation.

Example D: An employee develops a disability that causes them to be unable to perform the duties of their position. An employee’s request for reassignment is a request for reasonable accommodation.

There are far too many examples of reasonable accommodations to list here, as they vary based on an employee’s specific medical condition and needs.  Additional examples of reasonable accommodations for specific conditions can be found here.

Conclusion

When a Virginia employee is in need of a reasonable accommodation, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.