What Federal Employees and Retirees Need to Know About Dividing Federal Retirement and Other Benefits During Divorce
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.
Federal employees and their spouses should be aware of the special rules governing federal retirement benefits while negotiating the terms of their divorce.
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
Hostile Work Environment claims for employees are discussed in this article.
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
The importance of hiring a federal employment attorney for federal employee investigations
When federal employees receive proposed disciplinary actions, there are a number of important issues that they must consider before submitting a response.
Federal employees facing indefinite suspension without pay must be provided with a written notice, an opportunity to respond, and due process.
Federal employees facing a Performance Improvement Plan (PIP) should take the process very seriously.
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)
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.
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.
This article focuses on what federal employees can expect during a typical MSPB hearing.
Before federal employees can be disciplined for alleged misconduct or performance deficiencies, they are entitled to due process of law.
Settlement agreements at the Merit Systems Protection Board (MSPB) often occur. These settlements relate to appeals filed by federal employees against their federal agencies.
During the litigation of MSPB appeals, the pre-hearing written submission and pre-hearing conference are important.
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.
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.
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.
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
Position Description issues in 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.
Understanding the Whole-Person Concept in Security Clearance Cases
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.
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.
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.
There are a number of security concerns relating to psychological conditions that can be potentially mitigated if the right evidence is presented.
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 federal employees and government contractors when facing security clearance issues.
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.
When an individual receives a security clearance denial, there are a number of appellate options for federal employees and government contractors.
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.
Federal employees and government contractors may be expected to undergo a polygraph examination in connection with their security clearance process.
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
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.
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.
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.).
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.
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 Makes Sexual Orientation Discrimination Illegal
Independent Contractors and Non-Compete Agreements in Virginia
Non-compete agreements in Virginia for Independent Contractors
Severance Agreement Tips in Virginia
Filing complaints of sexual harassment for Virginia employees.
In Virginia, final wages to former employees must be paid in a timely manner.
This article discusses the legal issues that arise for employees in Fairfax County filing discrimination complaints before the Fairfax County Office of Human Rights.
This article discusses the ability of employees in Virginia to review and/or obtain a copy of their personnel file.
This article discusses the legal issues that arise for Virginia employees faced with signing a non-compete agreement.
A number of legal issues arise for Virginia employees when they face wrongful termination.
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.
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.