Ask The Lawyer

By Debra Roth

Q & A Session: Obtaining a Security Clearance—It’s All in the Details

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Q:

I have maintained my security clearance for over 10 years. I was recently hired for a position which required a Top Secret/SCI clearance. About five years ago, I had some back pain while visiting a friend’s home. I was offered a pain reliever and I took it. I found out afterwards that the pain reliever was prescription. This only happened one time. When asked on my SF-86 clearance form if I had ever taken prescription medicine without a prescription, I was unsure of how to answer, so I said no. I disclosed what happened in my interview, though. There are no other issues in question. Do I have a chance to obtain a clearance still?

A:

You do still have a chance to obtain a clearance, but how good that chance is depends on the details. If the facts are as innocuous as you describe, then I do not believe that the one-time inadvertent consumption of the prescription medicine will be an issue. What could be an issue is your inaccurate reply on the SF-86 form. Your failure to provide a truthful and candid answer to that question may result in an unfavorable clearance decision.

Disqualifying conditions may include the deliberate omission, concealment or falsification of relevant facts on the SF-86. An applicant could mitigate security concerns by making a prompt, good faith effort to correct the SF-86 before being confronted with the facts. Therefore, if you were confused or unsure how to respond to the question, and you were immediately candid with the interview, the security concerns may be mitigated and you could be granted a clearance.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Including Prior Acts of Harassment in EEO Complaint Alleging Hostile Work Environment

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Q:

Can I include prior acts of harassment in my EEO complaint alleging a hostile work environment?

A:

According to 29 CFR § 1614.105(a)(1), complaints of discrimination should be brought to the attention of the EEO counselor within 45 days of the date of the matter alleged to be discriminatory, or with respect to personnel actions, within 45 days of the action ‘s effective date.

The U.S. Supreme Court has held that an individual alleging a hostile work environment will not be time-barred if all acts constituting the claim are part of the same unlawful practice, and at least one act falls within the filing period.  See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).  In other words, you may use events that occurred more than forty-five (45) calendar days prior to your initiation of the EEO process to prove your hostile work environment claim, so long as your claim is timely (i.e. the days between the latest discriminatory event and your contact with the EEO office is within a 45 day period).

However, if you prevail on your hostile work environment claim, you are only entitled to legal relief for the specific acts that occurred within forty-five calendar days of your initiation of the EEO process.  For example, if an employee is not selected for a competed promotion in three consecutive years, and then that employee files a timely hostile work environment claim within forty-five (45) calendar days of the third non-selection, the employee may use the first two non-selections to prove his/her hostile work environment claim, but the employee, if he/she prevails, would only be entitled to a legal remedy for the third non-selection which occurred within forty-five calendar days of the date he/she initiated the EEO process.

This response is written by Christopher J. Keeven, associate attorney of Shaw Bransford & Roth PC, a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Records-Amendment Request with a VA Hospital

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Q:

About 3 months ago, I filed a records-amendment request with a VA hospital, asking them to remove certain information. Under the federal statute, the hospital was required within a certain number of days to acknowledge in writing its receipt of my request and either make the requested corrections or explain its refusal to do so and permit and permit administrative review of the refusal. The hospital’s response was grossly out of the required time frame.  Do I have cause of action for statutory damages?

A:

You may have a cause of action for any agency’s failure to timely respond to a request per the Privacy Act to amend records, and for an agency’s denial of your request to amend a record pertaining to you. The Privacy Act affords the right to file a civil action in U.S. district court including but not limited to the following circumstances:  an agency declines an individual’s request to amend a record about that individual that is contained within a system of records see 5 U.S.C. § 552a(g)(1)(A), and an agency fails to comply with any provision of the Privacy Act.  See 5 U.S.C. § 552a(g)(1)(D).

If you prevail on your claim that the agency improperly declined your request to amend a record pertaining to you, contained within a system of records, the court may order the agency to amend the record and award attorney’s fees and costs.  See 5 U.S.C. § 552a(g)(2).  If you prevail on your claim that the agency violated provisions of the Privacy Act by failing to timely respond to your request to amend a record pertaining to you that is contained within a system of records, you must also prove that the agency “acted in a manner which was intentional or willful.”   See 5 U.S.C. § 552a(g)(4).  If the court determines that the agency’s failure to timely respond to your request to amend a record was “intentional or willful,” then you will be entitled to an award of damages “equal to the sum of actual damages sustained” by you, which will require you to prove how you were harmed or damaged by the agency’s intentional or willful untimely response, and an award of attorney’s fees and cost.

This response is written by Christopher J. Keeven, associate attorney of Shaw Bransford & Roth PC, a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

No ‘high times’ for federal employees

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With the legalization of marijuana for recreational use by the states of Colorado and Washington, and the growing number of states (and the District of Columbia) that have legalized the drug for medical purposes, there’s discussion among the federal workforce wondering how this affects them. What I typically hear is: “if it’s legal for me to smoke marijuana on vacation in Colorado, how can the federal government come after me for it?”

The answer is quite simple. Since 1970, marijuana has been a Schedule I substance under the federal Controlled Substances Act and it remains so today. That means any use of marijuana is illegal under federal law, regardless of state law. As a federal employee, yes you must comply with federal law or suffer job consequences.

Whether and how the federal government chooses to enforce the federal criminalization of marijuana is also irrelevant to your federal employment, as long as it remains covered by the Controlled Substances Act. This is due to a 1986 Executive Order (EO 12564) issued by then-President Reagan, which mandates the federal workplace as a drug free workplace. Specifically, Section 1 of the Executive Order 1) requires federal employees “to refrain from the use of illegal drugs,” 2) establishes that “the use of illegal drugs by Federal employees, whether on duty or off duty, is contrary to the efficiency of the service,” and 3) holds that “persons who use illegal drugs are not suitable for Federal employment.”

So even if your federal position does not require a security clearance or subject you to random drug testing, use of an illegal drug by a federal employee is prohibited. This prohibition means that a misconduct action could be taken against you for on- or off-duty marijuana use, and such use can adversely affect a determination on whether you are “suitable” for federal employment.

Expect also to place your security clearance in jeopardy for current and future recreational use in a legalized state. It’s the federal government that issues security clearances, not the states. and intuitively you should know you must comply with federal law to obtain a clearance. Indeed, question 23 of the SF-86, Questionnaire for National Security Positions, the form every person must complete to be considered for a security clearance, requires you truthfully disclose whether “in the last seven (7) years have you illegally used any drugs or controlled substances? Use of a drug or controlled substance includes injecting, snorting, inhaling, swallowing, experimenting with or otherwise consuming any drug or controlled substance.” Marijuana is specifically listed. There are a series of sub-questions that ask about the time period and nature of your use, including whether your use occurred “while possessing a security clearance.” The form does not inquire whether your use occurred in a state where marijuana is legal. These inquiries should also serve to inform you how seriously the federal employer considers the use of marijuana for purposes of obtaining a security clearance.

And just to drive this point home, the government-wide adjudicative guidelines used to determine a person’s eligibility for a security clearance, list as Guideline 8 “Drug Involvement.” This guideline states the government’s concern with the “use of an illegal drug or misuse of a prescription drug” as raising questions about a person’s “reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person‘s ability or willingness to comply with laws, rules, and regulations.” For me, that’s all you need to know if you hold or intend to be issued a security clearance. What the government wants to know is your track record on complying with law, and federal law still prohibits the sale, distribution and use of marijuana.

In sum, with the benefits of federal employment comes the obligation to comply with federal law, which as of now, strictly prohibits use of marijuana.

Q & A Session: Precluding Retirement to Prevent Annuity Apportionment

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Q:

Can a federal employee preclude retirement when they reach the maximum retirement percentage in order to prevent a former spouse from receiving their court ordered annuity apportionment?

A:

Yes, if you keep working, then you will not be a retiree, and thus will not receive an annuity.  If you are not receiving an annuity, then your former spouse will not receive the court ordered portion of the annuity.  Unless you are in a position which has a mandatory retirement age, you can continue to work even after you “max out.”  However, you should keep in mind that court orders are not designed to be easily evaded by individuals who hope that they will not have to pay a former spouse what a judge has determined is legally due.  Once you retire, if the court order has been properly filed with OPM or your employing Agency, then you former spouse will very likely receive what he or she was apportioned in the court order.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC, a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

Q & A Session: Non-Supervisory Billet from Permanent Supervisory Billet

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Q:

Can a federal employee assigned to a permanent supervisory billet be re-assigned to a non-supervisory permanent billet without any disciplinary or adverse action?

A:

Assuming that you maintain the same grade and were not demoted, then yes.  Your employing Agency has broad discretion to place you where you best fit its needs, so long as that is not for any illegal reason, such as whistleblower reprisal or discrimination.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC, a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Reduction in Force: Really?

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When I took over this column late last year, I opined that in 2014 I would be writing about the legal mechanics of a reduction in force (RIF), as many of us in the federal community expected that agencies would be forced to move from furloughs to RIF’s because of sequestration. That expectation seemed to change in December, when Congress reached a budget agreement that mitigated much of the sequester. Notwithstanding, a few weeks ago OPM announced it was conducting a RIF, and that may foreshadow what to expect from other agencies regardless of whether an agency has had its sequestration level lifted. So it seems appropriate to talk a little, for now, about RIF’s.

Under regulations issued by the Office of Personnel Management (OPM), a reduction in force is authorized for lack of work, shortage of funds, insufficient personnel ceiling, and reorganization. In the 1990s, we saw RIFs based on reorganizations. If RIFs are going to be conducted in 2014, expect it to be based on funding decisions. When a RIF is conducted, it is essentially an internal competitive process among employees based on rank, tenure and performance. The manner in which the competition occurs is rather mechanical with little discretion left to your employing agency, except for the decision on whether to run a RIF in the first instance. Aside from that decision, conducting a RIF is a mechanical process based on objective information, which makes it essential that your agency use the correct data on you because any error on any employee affected by a RIF will likely cause a ripple effect.

There is some jargon attached to the process. The “scope of competition” in a RIF is set by a “competitive area” and “competitive level.” The competitive area is the agency’s organizational unit within a geographical location undergoing the RIF. For example, that could be the headquarters unit of the Office of the Chief Information Officer. Once the competitive area has been defined, the agency sets the competitive levels within the competitive area, which consists of all positions within the competitive area that are in the same grade and classification series, “and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that an agency may reassign the incumbent of one position to any of the other positions in the level without undue interruption.” In sum, an agency determines the geographic location of the work unit to be subject to the RIF, identifies all positions in that unit, and then places the employees in those positions into in each competitive level and onto a “retention register” from which it is determined who shall stay and who shall be let go.

Your standing in the retention register for your competitive level is determined again by OPM regulation. Per OPM, your order of retention is determined on the basis of your tenure of employment, veteran preference status, length of service, and your most recent three performance ratings of record received during the four year period preceding the issuance of the RIF notice. You are assigned points for each of these factors, added up, and then given a retention standing from which you will then compete with the other employees for a position.

As you can see, other than your performance ratings, you have no control over affecting your retention standing. It is for that reason that I write now about the possibility of RIF’s, so that you have time to ensure your personnel file correctly reflects your last three annual ratings of record, or to obtain a rating of record not already issued.

If 2014 brings about RIFs, I’ll write about how RIFs are challenged at the Merit Systems Protection Board, and what you can expect from appealing a RIF decision.

Q & A Session: Supporting Evidence for the Use of Sick Leave

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Q:

When I request time for a sick day, I complete the appropriate form and submit it to my manager for approval. My manager drills me with a series of questions, such as why I want off? What is the nature of the illness? Why do I need half the day for the appointment? When was the appointment made? How much information do I have to supply to my manager in regards to my sick leave?

A:

An agency may grant sick leave only when supported by administratively acceptable evidence. For absences that exceed 3 days, or for a lesser period when determined as necessary by an agency (i.e. a finding of a pattern of abuse of leave use), an agency may require a medical certificate or other administratively acceptable evidence. According to OPM’s website, an agency may consider an employee’s self-certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence. Employees should consult their agency-specific human resources guidance and review applicable policies set forth in collective bargaining agreements for information specific to their agency.

This response is written by Maria N. Coleman, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Limits of ‘Consent to be Searched’ Signs

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Q:

I work at the Pentagon. There are many signs that say something along the lines of “all those entering the building consent to be searched.” What are the limits of that? This morning, Pentagon police with surgical gloves were conducting pat down searches of random people. While I don’t mind walking through a metal detector, I do have an issue with someone laying hands on me.

A:

The majority of the time, entry screening at the Pentagon will consist of less invasive methods: walking through a metal detector or having hand-carried items searched, for example. However, at times when force protection conditions are escalated to higher levels, random screening measures may intensify.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask The Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask The Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Contractor Creating Hostile Work Environment

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Q:

What do you do when a contractor creates a hostile work environment for a federal employee? Should the federal employee file a complaint with the contractor’s company?

A:

As a federal employee, it is the federal government which has an obligation to keep you free from a hostile work environment. If you wish to file a complaint, you should file any complaint you have with your agency’s EEO office. The contractor’s company also may take action on its own, for example by distinguishing your complaint and subsequently  transferring or firing the employee.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask The Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask The Lawyer’s author is created by the transmission of information to or from this site.