The Informal EEO Complaint Process for Federal Employees

Over the last several years in our employment law practice in Virginia, we have been advising employees on the proper use of social media in connection with their duties as an employee. Social media is one of the most unique and changing areas of employment law today. This article provides some basic tips for employees and a summary of their current rights in Virginia.

Social Media Tips – Advice for Virginia Employees

1. Avoid Adding Supervisors: Avoid (where possible) becoming friends or connected with supervisors (and sometimes co-workers). It has often been the case that we have had employees face discipline resulting from Tweets, Facebook or Instagram posts that even well-meaning individuals forward to the employer. For instance, we have seen posts ridiculing a supervisor eventually make it to the supervisor. It tends to create an atmosphere ripe for retaliation and discipline.
2. Avoid Workplace Criticism on Social Media: Avoid mentioning problems or other issues that arise at work. We have usually found that even a well-meaning friend can pass on information to a supervisor or company official that can lead to discipline or, at minimum, a less comfortable work environment.
3. Don’t Discuss Company Clients or Projects on Social Media: Avoid mentioning clients or other work specific information from your employer in your social media posts. Sometimes these clients get word of the post, see it online, or it makes the news. As a result, the employer often then takes disciplinary action against the employee.
4. Avoid Social Media Usage During Work Hours: While this may or may not be feasible for everyone, it is a good idea to avoid social media posting while at work. We have seen employees written up for social media posting during work hours or when using employer computers. In some cases, employers have argued, where social media posts include the time and date posted, that they have not been working their duties while getting paid. It is important to consider when and where you post on social media if it occurs during work hours.
5. Avoid Major Political Debates: While everyone has the right to an opinion, it is best for employees not to engage in political debates in social media where others connected to your employer can see them. Politics is deeply personal these days and has the tendency to draw retaliation in the workplace in some instances.
6. Don’t Overshare Private Information: It is not uncommon for individuals to share a lot of personal information on social media. It is important to think ahead as to whether or not you want your employer knowing information about your personal life. We generally recommend that you keep an eye on the amount and type of personal information that you share on social media.

Virginia Employee Protections for Employees and Social Media

Some states have begun to legislate the first protections for social media accounts held by employees. This has been the case in the Commonwealth of Virginia. While the laws in Virginia doesn’t protect an employee from the content that they post online through social media, it offers some protection for employees from employers who demand that an employee share it with them. Specifically, the new law bars employers from demanding or requiring access to an employee’s social media information as part of their employment.

Virginia Code § 40.1-28.7:5 protects employees from employers in:

(1) requesting their sign on information to media accounts; and

(2) requiring an employee to add a company manager or representative as a friend or contact on the social media account.

Furthermore, the Virginia law bars retaliation from employers that seek such information and are turned down by the employee.  The Virginia law provides that:

“An employer shall not:

1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his rights under this section; or

2. Fail or refuse to hire a prospective employee for exercising his rights under this section.”

It is likely that this is only the first step in legislative protections for this area given the significant of social media today.  It is pretty clear that more protections for employees are needed and will come into place as states such as Virginia tackle the issue of how social media affects the workplace. In general, it is better to be safe than sorry in what you post on social media if that information is going to be shared with your co-workers and supervisors.

Conclusion

Keep in mind that not all companies take offense to social media posting and can have lax policies. The best idea is to find out company policy from the employer as early as possible. When facing employment issues it can be important to have the assistance and advice of counsel. If you need assistance with an employment issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation.

This article discusses 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 filed through the EEO process proceed to mediation, which is often a good idea.

This article discusses the EEO 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 where the parties attempt to avoid litigation and resolve a complaint early in the process. Once the EEO complaint process has started federal employees and agencies can attempt mediation first. If mediation is agreeable, then a mediator is assigned. The EEOC provides an excellent general summary of the general mediation process.

The mediator assigned to a case does not make a finding as to who is right or wrong 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 mediation 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. 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 over the terms agreed to.

How Does EEO Mediation Work?

Usually, mediation will be held at a location located in a conference room at the federal agency. Sometimes mediation is conducted by Zoom or Microsoft Teams. The session will usually last from a few hours to a day. Once the mediation session begins, the process usually will proceed as follows:

1. The mediator provides a copy of the mediation agreement.  The mediation agreement will ensure that any discussions at mediation are held confidential; they can’t be used later in litigation if settlement does not work out.

2. The mediator will begin by explaining the mediation process to the parties. Mediators, depending on their experience, how many different ways of conducting a mediation.

3. The parties will each provide an opening statement about their position in the case. It is often helpful for the employee to explain how they suffered discrimination, sexual harassment, or retaliation. The Government will then provide their own statement in response.

4. The parties will then usually discuss the EEO complaint.  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 resolving the complaint or the parties may be separated in separate rooms.  A mediator may go back and forth between the parties discussing proposals and responses from each side.

6. The most important part of the mediation process are the caucus sessions; that is where most agreements are found.

7. The mediator will 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 a verbal agreement between the parties agreed to at mediation, a written settlement agreement is completed. 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.

According to EEOC statistics, the settlement rate at mediation is approximately 72-75%. 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.

When Mediation Doesn’t Work Out

If mediation doesn’t work out, then the parties can return to the normal complaint process without any loss of rights. An investigator will be assigned and conduct the investigation. It is generally a good idea to try to mediate an EEO complaint first before going through the investigative process, as many cases do settle.

If you are a federal employee in need of assistance with filing an EEO complaint or mediation, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

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.

Conclusion

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.

Clean record agreements for federal employees in light of Presidential Executive Order 13839 (EO) still exist given the right circumstances.  There is significant confusion over this EO which attempts to bar clean or clear records, which is confusing for both federal agencies and federal employees. Federal agencies themselves often disagree with what the EO actually means and when it is applicable to settlement of cases. The negotiation of clear records for federal employees in the right situations is still viable and complies with the EO. Hopefully, this article will provide some context for how the EO and negotiations can still factor into settlements for federal employees.

What is a Clear Record or Clean Record Agreement?

A clean record agreement is simply an agreement to clear or change the a personnel action or performance record as part of a settlement or other resolution of a case. This was a significant component of most settlement agreements over the past 20 years for federal employees. The EO, however, has provided some restrictions on such agreements, but in reality little has changed legally. It is important for both federal employees and federal agencies to understand that this is the case.

Why Has Little Changed for Clear Record Agreements?

The reason why EO 13839 has not truly changed the landscape of federal employee settlements is that the recent EO takes the position that “legitimate” personnel actions should not be changed. It is my experience that there are always two sides to a personnel dispute and most often federal supervisors or Human Resources allege disciplinary issues that do not correspond to the facts or other wrongdoing not supported by the facts.

Managers may also often also assert performance issues that truly do not exist as a means of attempting to terminate an employee. Most federal personnel actions and issues result because a federal supervisor does not like to work with a particular federal employee. As a result, the contentious nature of the workplace relationship results in a personnel action that is flawed or not legitimate.

On this basis, we have settled a number of cases despite the introduction of the EO. A number of Merit Systems Protection Board (MSPB) judges and federal agency attorneys have worked with our firm in settling personnel issues involving either MSPB or Equal Employment Opportunity (EEO) complaints. During such, there have often still been ways in which to resolve such cases with clear or modified record resolutions.  The point is that the parties have to keep an open mind and can still comply with both the EO and their mutual goals in resolving cases.

EO 13839 Require Allows Federal Agencies to Correct Records through Settlement

EO 13839 (5) does not prohibit changing federal employee personnel records, it merely sets procedures for doing so. There are options for fixing issues as explained by OPM and in practice with other agencies. OPM has offered additional guidance on correction which states that Section 5 requirements should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error.”

Examples of Potential Avenues to Correct Personnel Records

Here are some of the ways that we have been successfully able to settle cases with federal agencies:

1. Action Taken in Error: An agency can always correct a mistake. However, an action taken in error doesn’t mean that an employee gets to publicize the mistake. A good way of resolving these cases is for an agency to acknowledge that there was a mistake or potential mistake. It simply means that upon further review, some arguments have been raised that call into question the accuracy of the decision or penalty assigned. If you are considering settling a case at all, then a federal agency has obvious concern about how strong it is, or whether or not that penalty will be upheld (in error).

New information and review can cause always cause a new analysis which could by itself require an agency to correct an erroneous personnel action. As a result, the most common way that we have settled these cases with other federal agencies, in matters involving suspensions and even removals, is to have the federal employee waive their rights, have the agency modify the record due to new information which calls into question the specification sustains or in error, and then insert a confidentiality clause.

2. Rescind the Action and Rehear it: We have also settled cases where a federal agency rescinds a personnel action based on new doubts about the individual allegations, re-issue it with corrected charges (if appropriate) and then agree on a final disposition. Then a final decision can be rendered.

3. Settle a Proposed Suspension/Removal Prior to a Decision: This method is the easy way to settle an early a case under OPM’s guidance. OPM’s Interpretive Guidance on Section 5 Ensuring Integrity of Personnel Files Contained in Executive Order 13839 has made it clear that proposed actions can be resolved without issue: “When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action. Additional information may come to light at any stage of the process prior to final agency decision including during an employee response period.” As a result, for future cases we should try to settle cases at the earliest stage possible prior to the action being taken.

4. The Federal Employee May Not Be Covered by the EO: A final though is that an employee may not be covered by the EO, depending on the agency or position involved. I always check to see if your employee is an employee for purposes of the EO (i.e. Congressional employee, hybrid federal employee, federal employee not covered by the EO). Sometimes, certain agencies or agencies within agencies are not covered. Rare, but I have seen it.

Current State of Settlement Procedures

Some federal agencies will agree to a proposed change in personnel records given that it is a corrective action in settlement and not bat an eye to a change. Other federal agencies will not do so, because they are still confused about the application of EO 13839. However, it is important to fully understand the EO prior to entering a settlement agreement at the MSPB or the EEOC for enforcement purposes. Very specific language should be used in settlement agreements. Some administrative judges have even adopted a policy permitting such changes so long as the federal agency counsel asserts that it complies with EO 13839. There also remain other ways, outside of the MSPB and EEOC settlement enforcement process in which to process an agreement to clear an incorrect or debatable disciplinary or performance record.

Conclusion

If a federal employee needs legal representation in federal disciplinary or performance matters, then we can assist them in their employment matters.  Please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook and Twitter pages.

The 2019 primaries and 2020 national elections are approaching soon. Our law firm often represents and defends federal employees in Hatch Act violation cases. The Hatch Act was meant to curtail partisan political involvement for federal employees. There are certain restrictions that prohibit certain political conduct, both on-duty and off-duty. As these elections approach, this article is meant to help federal employees avoid the problems of committing potential Hatch Act violations.  

What is the Hatch Act?

The Hatch Act was first proposed by Senator Carl Hatch of New Mexico and enacted in 1939 prohibiting certain types of political participation by federal employees. This can vary between types of federal employees. For most federal employees, however, the rules are similar.  Federal employees may not seek public office in partisan elections, use their official titles or authority when engaging in political activities, solicit or receive contributions for partisan political candidates or groups, and/or engage in political activity while on duty. Even some non-partisan elections can give rise to Hatch Act violations by federal employees if a candidate is sufficiently backed by a particular party.

Office of Special Counsel Enforcement for Hatch Act Violations

For most federal employees, the Hatch Act is enforced by the Office of Special Counsel (OSC). The OSC has the ability to seek disciplinary action against federal employees if violations are uncovered. Typically, violations are investigated following a complaint being filed with the OSC.  Federal employees can potentially be disciplined or terminated for violations of the Hatch Act.  Generally, the OSC will first conduct a detailed investigation into the allegations and then if violations are found they may then seek to negotiate a resolution with the alleged offender.

In other cases, the OSC may file inform the individual that they are simply moving ahead with a disciplinary action filing with the Merit Systems Protection Board (MSPB) against the employee (usually seeking removal) and ask an MSPB administrative judge to take action against the federal employee for at the violations.    

General Hatch Act Tips for Federal Employees 

Federal employees are encouraged to seek advice before engaging in political activities. There are many types of federal employees and some are more restricted than others. Here are 8 simple tips for federal employees seeking to avoid potential Hatch Act violations:

1.   Don’t run for office in a partisan political election;

2.   Avoid partisan political discussions while in the federal workplace or while performing work;

3.   Don’t try to raise funds for partisan political candidates in the workplace (even passing along website links for candidates to co-workers); 

4.   Don’t post political opinion or discussion during work hours on social media;

5.   Don’t donate to a political campaign during work hours; 

6.   Don’t bring political campaign signs or buttons into the federal workplace;

7.   Don’t use government resources (email, internet) to engage in partisan politics; and

8.   Don’t use your government title or affiliation to endorse a political candidate.

Federal employees can usually still participate in many political activities, but doing so at work can be a violation of the Hatch Act. Federal employees can sometimes be candidates for non-partisan elections, assist in voter registration drives, express political opinions, attend fundraisers, sign nominating petitions or hold office in political parties.

For further information on potential Hatch Act violations, please see the information offered by the OSC. While it is doubtful that brief discussions about politics in the federal workplace would trigger an OSC investigation, the potential risk is there. The safest course for federal employees is to simply avoid partisan politics in the workplace and save them for off-duty.  

Conclusion

If you need assistance with Hatch Act defense or other federal employment law issues, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

The Federal workforce is presently undergoing significant changes in size. Many federal agencies are shifting their workforce into other areas.  In some instances, this has led to the Federal government to provide incentives for Federal employees to retire early.  This article focuses on these incentives and considerations in accepting early retirement.

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

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

The purpose of VERA and VSIP is to help agencies complete the necessary organizational change with minimal disruption to the workforce and to make it possible for federal employees to receive an immediate annuity payment years before they would normally be eligible. It is also a carrot as opposed to a stick approach.  The voluntary early retirement provisions are the same under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS).

Federal Employee Requirements for Early Retirement for FERS and CSRS

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

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

Other requirements can apply, but these and the major ones. It is very important for federal employees considering a VERA/VSIP offer to seek the advice of an attorney regarding their retirement issues prior to initiating the VERA process.  Our law firm represents federal employees that are considering early retirement and in other federal retirement matters.

Sometimes VERA or VSIP considerations can come up during settlement discussion involving a proposed removal or removal action.  It can be important, in those cases, to seriously evaluate one’s options at that time.

Conclusion

If you are in need of federal employee retirement law representation, or need guidance regarding VERA (early retirement) or VSIP (early retirment incentives) please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.