Court-Ordered Benefits
What Federal Employees and Retirees Need to Know About Dividing Federal Retirement and Other Benefits During Divorce
Kimberly H. Berry — Court-Ordered Benefits
Attorney Kimberly H. Berry discusses issues pertaining to court orders that award retirement and other benefits to former spouses of retired federal employees in the January 2018 issue of the National Active and Retired Federal Employees Association (NARFE) magazine.
Divorce and Federal Employee Retirement Benefits
Kimberly H. Berry — Court-Ordered Benefits
Federal employees and their spouses should be aware of the special rules governing federal retirement benefits while negotiating the terms of their divorce.
Creditable Service
Redeposit Issues Affecting Federal Employee Annuitants
Kimberly H. Berry — Creditable Service
Former federal employees who retire prior to reaching the minimum retirement age or required length of service and withdraw from their retirement contributions based on misinformation can potentially redeposit their retirement contributions.
Discrimination and EEO
How do Employees Prove a Hostile Work Environment?
John V. Berry — Discrimination and EEO
Hostile Work Environment claims for employees are discussed in this article.
Changes to Employment Sexual Orientation Laws and Enforcement
John V. Berry — Discrimination and EEO
Until the last few years, employees had very few, if any, protections from discrimination in the workplace due to their sexual orientation. However, there have been some significant changes to sexual orientation discrimination laws and enforcement in recent years.
Federal Adverse And Disciplinary Actions
Representing Federal Employees in Misconduct Investigations
John V. Berry — Federal Adverse and Disciplinary Actions
The importance of hiring a federal employment attorney for federal employee investigations
Responding to Proposed Disciplinary Actions
John V. Berry — Federal Adverse and Disciplinary Actions
When federal employees receive proposed disciplinary actions, there are a number of important issues that they must consider before submitting a response.
Indefinite Suspension for Federal Employees
John V. Berry — Federal Adverse and Disciplinary Actions
Federal employees facing indefinite suspension without pay must be provided with a written notice, an opportunity to respond, and due process.
Performance Improvement Plans for Federal Employees
John V. Berry — Federal Adverse and Disciplinary Actions
Federal employees facing a Performance Improvement Plan (PIP) should take the process very seriously.
The Douglas Factor Defense for Federal Employees
John V. Berry — Federal Adverse and Disciplinary Actions
One of the most important areas in defending federal employees in agency disciplinary and adverse action cases involves arguing the application of the Douglas factors.
Federal Erroneous Retirement Coverage Corrections Act (FERCCA)
COULD YOU BE IN THE WRONG FEDERAL RETIREMENT SYSTEM?
Kimberly H. Berry — Federal Erroneous Retirement Coverage Corrections Act (FERCCA)
Federal Erroneous Retirement Coverage Corrections Act (FERCCA) errors can arise when a federal employee experiences a break in service, especially during the mid-1980s when the Federal Employees Retirement Systems (FERS) plan was created.
Merit Systems Protection Board (MSPB)
Are You Representing Yourself At The MSPB?
John V. Berry — Merit Systems Protection Board (MSPB)
Federal employees who represent themselves in their own Merit Systems Protection Board (MSPB) appeal should know that the process is very similar to court proceedings and has a number of legal technicalities.
The Importance of Discovery During an MSPB Appeal
John V. Berry — Merit Systems Protection Board (MSPB)
It is important for a federal employee to take advantage of the discovery process during an MSPB appeal by utilizing Production Requests. The amount of information that one can uncover through this process can make all the difference in pursuing a successful appeal.
What to Expect During an MSPB Hearing
John V. Berry — Merit Systems Protection Board (MSPB)
This article focuses on what federal employees can expect during a typical MSPB hearing.
Due Process Issues in MSPB Cases for Federal Employees
John V. Berry — Merit Systems Protection Board (MSPB)
Before federal employees can be disciplined for alleged misconduct or performance deficiencies, they are entitled to due process of law.
Settlement Agreements at the MSPB
John V. Berry — Merit Systems Protection Board (MSPB)
Settlement agreements at the Merit Systems Protection Board (MSPB) often occur. These settlements relate to appeals filed by federal employees against their federal agencies.
The MSPB Pre-Hearing Process
John V. Berry — Merit Systems Protection Board (MSPB)
During the litigation of MSPB appeals, the pre-hearing written submission and pre-hearing conference are important.
Appealing a Final Federal Agency Decision: MSPB vs. Arbitration
John V. Berry — Merit Systems Protection Board (MSPB)
When federal employees receive a final federal agency decision sustaining a removal or significant suspension of 15 days or more, there are two possible options if they want to appeal the final decision.
Taking Depositions of Relevant Witnesses at the MSPB
John V. Berry — Merit Systems Protection Board (MSPB)
Deposing key witnesses during an MSPB appeal can potentially increase a federal employee’s ability to obtain a positive settlement or hearing result in a case if important facts are uncovered during the process.
A Federal Employee’s Guide to Burden of Proof Issues at the MSPB
John V. Berry — Merit Systems Protection Board (MSPB)
It is important for federal employees to understand how a federal agency will attempt to prove its allegations against them during an MSPB Appeals hearing process.
The Completion and Submission of an MSPB Appeal
John V. Berry — Merit Systems Protection Board (MSPB)
Federal employees who plan to initiate an MSPB appeal should file in a timely manner and follow proper guidelines.
MSPB Retirement Appeals
MSPB Takes Action Where OPM Fails to Issue Final Decision in Retirement Case
Kimberly H. Berry — MSPB Retirement Appeals
The Merit Systems Protection Board (MSPB) recently held that when the Office of Personnel Management (OPM) fails to issue a final appealable decision, engaging in substantial delays, the MSPB may be able to hear the appeal on the merits without waiting for a formal decision from OPM.
OPM Disability Retirement
Disability Retirement and Position Descriptions for Federal Employees
Kimberly H. Berry — OPM Disability Retirement
Position Description issues in OPM disability retirement
5 Important Questions to Consider Before Applying for OPM Disability Retirement
Kimberly H. Berry — OPM Disability Retirement
The following five questions identify a few of the initial considerations that federal employees should examine when determining whether they should pursue OPM disability retirement.
Disability Retirement in the Federal Sector
Kimberly H. Berry — OPM Disability Retirement
Federal employees considering disability retirement should seek legal advice early to avoid potential mistakes.
Security Clearance
The Whole-Person Concept in Security Clearance Cases
John V. Berry — Security Clearance
Understanding the Whole-Person Concept in Security Clearance Cases
Responding to the Statement of Reasons in a Security Clearance Matter
John V. Berry — Security Clearance
Responding in a timely and accurate fashion to a Statement of Reasons can provide a federal employee or government contractor with the best opportunity to mitigate security concerns raised in connection with a security clearance.
Security Clearance: The Duty to Self-Report
John V. Berry — Security Clearance
Federal employees and contractors holding a security clearance have a duty to self-report serious security concerns or they will risk losing their security clearance.
Disclosing Criminal Violations in the Security Clearance Process
John V. Berry — Security Clearance
Federal agencies may consider disclosing an individual’s criminal violations to law enforcement if investigators or polygraphers come across them in the security clearance process.
Psychological Conditions and Security Clearances
John V. Berry — Security Clearance
There are a number of security concerns relating to psychological conditions that can be potentially mitigated if the right evidence is presented.
Requesting Reconsideration After a Security Clearance is Denied
John V. Berry — Security Clearance
When federal government contractors lose their security clearance or are unsuccessful in obtaining one, the most common question they ask is “When can I reapply for one?”
8 Tips for the Security Clearance Process
John V. Berry — Security Clearance
8 tips for federal employees and government contractors when facing security clearance issues.
Meeting With Security Clearance Investigators
John V. Berry — Security Clearance
Preparation for the initial security clearance meeting with an investigator can make the difference between a government contractor/federal employee successfully obtaining a security clearance or being denied a security clearance.
A Summary of the Security Clearance Appeals Process
John V. Berry — Security Clearance
When an individual receives a security clearance denial, there are a number of appellate options for federal employees and government contractors.
Seeking Information Regarding Security Clearance Incident Reports
John V. Berry — Security Clearance
When government contractors and federal employees encounter problems in attempting to resolve Joint Personnel Adjudication System (JPAS) Incident Reports, the first step is to formally request a copy of all of their security documents.
Polygraph Examinations for Federal Employees and Contractors
John V. Berry — Security Clearance
Federal employees and government contractors may be expected to undergo a polygraph examination in connection with their security clearance process.
The Importance of Properly Completing Security Clearance Forms
John V. Berry — Security Clearance
When security clearance issues arise or if there is reason for concern when completing a security clearance application, individuals should seek advice from an attorney prior to submitting the application.
Suitability Lawyers for Appeals
Suitability Lawyers for Federal Employees and Applicant Appeals
Representing federal employees and applicants in suitability appeals is important. Our suitability lawyers frequently handle these types of appeals. If an agency takes a suitability action, they may remove an employee, cancel eligibility for appointment, debar an individual from a contract, or cancel their eligibility for a position.
Suitability Process
Typically, suitability issues come up during the application for federal employment or contractor hiring process. They often come up when an individual has been given a conditional offer, only to later have concerns about an individual’s character for the position. OPM has delegated suitability decision making to each federal agency. The processes between agencies vary. Our suitability lawyers often represent individuals in suitability appeals before federal agencies. Suitability determinations are somewhat similar to security clearance determinations, but there are some differences. Basically, the same concept is involved and mitigating factors can apply, but there is a different criteria and slightly less scrutiny for suitability determinations as opposed to security clearance investigations.
For purposes of suitability determinations under federal regulations, the following factors are considered a basis for finding a person unsuitable for federal employment and taking a suitability action:
(1) Misconduct or negligence in employment;
(2) Criminal or dishonest conduct;
(3) Material, intentional false statement, or deception or fraud in examination or appointment;
(4) Refusal to furnish testimony;
(5) Alcohol abuse, without evidence of substantial rehabilitation, of a nature and duration that suggests that the applicant or appointee would be prevented from performing the duties of the position in question, or would constitute a direct threat to the property or safety of the applicant or appointee or others;
(6) Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation;
(7) Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force; and
(8) Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in question.
There are additional considerations in suitability cases under these regulations which can involve potential mitigation of suitability concerns. These types of mitigating factors include the following considerations:
(1) The nature of the position for which the person is applying or in which the person is employed;
(2) The nature and seriousness of the conduct;
(3) The circumstances surrounding the conduct;
(4) The recency of the conduct;
(5) The age of the person involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or presence of rehabilitation or efforts toward rehabilitation.
Suitability Responses
If a federal agency makes a decision to rescind their offer of employment for a federal employment position or take other suitability action, there are certain notice requirements that must be first met. A federal agency must generally provide notice and the reasons why they believe that the individual is unsuitable for employment due to suitability criteria. The federal agency must also explain the individual’s rights to obtain the information upon which the suitability decision is based. Additionally, the federal agency must provide information about an individual’s ability to make a written response to the suitability decision where applicable.
We recommend representation when responding to a suitability determination. It is important to fully explain and rebut all issues concerning the suitability issues alleged by the agency. It is also very important to support an individual’s case for mitigation of the suitability issues. For instance, if the suitability issue involves a prior arrest, it is important to obtain all of the documents possible which support the individual’s version of events as to the issue in question. It is always very important to obtain and use documents which explain the individual’s good character (i.e. awards, commendations, good work performance, etc.).
Suitability Appeals
If a federal agency decides to make a final adverse suitability decision against a federal employee, the individual must generally be notified in writing and informed of any appeal rights, i.e. filing an appeal to the Merit Systems Protection Board (MSPB). Not all individuals are eligible to file an MSPB appeal (typically this depends on the particular federal agency involved) so it is important to speak with an attorney about these issues as soon as possible because of the deadlines involved.
Conclusion
When a federal employee is undergoing the suitability response or appeals process, it is important to have legal representation. Our law firm represents federal employees in issues of suitability. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
Virginia Employment Law
Virginia Prohibits Sexual Orientation Discrimination
John V. Berry — Virginia Employment Law
Virginia Makes Sexual Orientation Discrimination Illegal
Independent Contractors and Non-Compete Agreements
Kimberly H. Berry — Virginia Employment Law
Independent Contractors and Non-Compete Agreements in Virginia
Non-Compete Agreements in Virginia for Independent Contractors
Kimberly H. Berry — Virginia Employment Law
Non-compete agreements in Virginia for Independent Contractors
Severance Agreements in Virginia
Kimberly H. Berry — Virginia Employment Law
Severance Agreement Tips in Virginia
Filing Sexual Harassment Complaints in Virginia
John V. Berry — Virginia Employment Law
Filing complaints of sexual harassment for Virginia employees.
Final Wages Owed to Virginia Employees Must Be Paid
John V. Berry — Virginia Employment Law
In Virginia, final wages to former employees must be paid in a timely manner.
Fairfax County Office of Human Rights Complaints
John V. Berry — Virginia Employment Law
This article discusses the legal issues that arise for employees in Fairfax County filing discrimination complaints before the Fairfax County Office of Human Rights.
Employee Access to Personnel Files in Virginia
John V. Berry — Virginia Employment Law
This article discusses the ability of employees in Virginia to review and/or obtain a copy of their personnel file.
Virginia Non-Compete Agreements for Employees
Kimberly H. Berry — Virginia Employment Law
This article discusses the legal issues that arise for Virginia employees faced with signing a non-compete agreement.
Wrongful Termination in Virginia
John V. Berry — Virginia Employment Law
A number of legal issues arise for Virginia employees when they face wrongful termination.
8 Tips When Facing Virginia Employment Law Problems
John V. Berry — Virginia Employment Law
It is important for employees who are experiencing workplace problems in Virginia to keep focused while issues are developing and to follow 8 general guidelines.
Virginia’s Grievance Process for State Employees
John V. Berry — Virginia Employment Law
Employees who are employed by an agency of the Commonwealth of Virginia and file an initial grievance to resolve an employment dispute will proceed through a 3-step grievance process.
Whistleblower and Office of Special Counsel
Filing Complaints at the Office of Special Counsel
John V. Berry — Whistleblower and Office of Special Counsel
The U.S. Office of Special Counsel (OSC) principally investigates complaints filed by federal employees involving prohibited personnel practices and Hatch Act violations.
Legal Articles
- Court-Ordered Benefits
- Creditable Service
- Discrimination and EEO
- Federal Adverse And Disciplinary Actions
- Federal Erroneous Retirement Coverage Corrections Act (FERCCA)
- Merit Systems Protection Board (MSPB)
- MSPB Retirement Appeals
- OPM Disability Retirement
- Security Clearance
- Suitability Lawyers for Appeals
- Virginia Employment Law
- Whistleblower and Office of Special Counsel
