Feds issue ‘first-ever’ social media policy for security clearance determinations

As the Washington Post reports, the Director of National Intelligence has issued a directive that Facebook, Twitter, and other social media platforms will now figure in the government’s investigation of federal employees and would-be employees who are applying (and re-applying) for security clearances.

The Post calls it a “first-ever” policy.

The ‘whole-person’ approach includes looking into social media accounts.

The Post quotes Beth Cobert of the Office of Personnel Management:

“Agencies make security clearance decisions using a ‘whole person’ approach to assessing who is an acceptable security risk. One component of that approach in the 21st century is social media.”

Investigators will look only at info that is ‘readily available.’

Apparently, a key aspect of this new policy is that the government won’t look into everything posted online, nor will it take everything it finds into account in its security clearance determination – though the Post report lacks details as to how this will be policed.

Indeed, some lawmakers are skeptical.

“How will this work?” asked Rep. Gerry Connolly. “How do we flag the serious from the trivia?”

“Alan gave me the information I needed to save my federal career.” – Former client

If you have an issue with your security clearance, consider contacting Alan Lescht & Associates, P.C. Based in Washington, D.C., we regularly represent federal employees facing trouble with security clearances – whether at-risk or suspended/revoked. For more information on our practice, visit this page about security clearances, or call 202-463-6036.

Financial considerations and revoking or denying security clearance

The federal government will revoke, suspend or deny security clearance for many reasons. Some of the most common reasons are personal conduct, which often includes lying on the application, a criminal history, or the appearance of foreign influence or foreign preference. Far and away the most common reason for denying or revoking security clearance is financial considerations. In 2015, the Department of Defense used financial considerations to deny hundreds of security clearance applications.

In many of these cases, individuals filed bankruptcy, had delinquent student loans, or were having trouble paying their mortgage. In rare cases, individuals had gambling debts that prevented them from gaining security clearance. Regardless of the type of debt, the government will look closely at any person with significant financial issues.

Why does the federal government analyze a person’s finances?

The federal government takes the position that individuals with significant debt are more likely to engage in illegal activities to pay their debts. People with serious financial problems may be at greater risk for selling classified or top-secret government information. When analyzing a person’s finances and their eligibility for security clearance, the government will consider many factors, including:

  • How the debts were incurred: For example, student loan debts are less damaging than debts incurred by reckless behavior
  • The steps the applicant took to mitigate the debt: Undertaking a repayment plan will be looked upon more favorably than taking steps to avoid repayment
  • How much debt was incurred: The larger the debt, the more likely the government will carefully scrutinize the person’s application

The law firm of Alan Lescht & Associates represents federal employees across the United States in security clearance matters. If you received a Statement of Reasons (SOR) that your security clearance was revoked or suspended, our lawyers are ready to take action. We can present an appeal before the appropriate agency and help you take appropriate steps to mitigate these concerns. Call 202-463-6036 to schedule a consultation.

You’ve received a Notice of Proposed Removal. What do you do next?

By sending a Notice of Proposed Removal, your agency is informing you that it intends to terminate your employment. As a federal employee, you have rights. You have the right to show your agency why your removal is unreasonable or unwarranted under the circumstances. It is critical to act quickly.

What are the timelines after a Notice of Proposed Removal?

Unless an employee is believed to have committed a crime, federal agencies must provide a minimum of 30 days notice to any employee who is being removed. Furthermore, the employee must have a reasonable time frame (at least seven days) to respond to the notice. Employees also have the right to an attorney. An attorney will be critical in presenting the strongest possible case in your support.

If an agency removes me, what do I do next?

Federal employees can appeal a removal. Most appeals go through the Merit Systems Protection Board (MSPB). Depending on the circumstances, employees can appeal through the EEO or through a collectively-bargained grievance procedure. An appeal to the MSPB will involve discovery, in which you will have the opportunity to request documentation surrounding your removal and refine arguments in support of your position. Depending on the facts, these arguments could include:

  • The agency made a harmful error in applying its procedures
  • You were fired due to discrimination or on the basis of retaliation for whistleblowing
  • The penalty was excessive, disproportionate or otherwise unreasonable.

You will then have the opportunity to present your case in a hearing before an administrative judge. After getting a Notice of Proposed Removal, your choice of lawyer is a critical decision. With decades of experience in the field of federal employment law, the lawyers of Alan Lescht & Associates have successfully represented federal employees facing all types of actions, including removal. Our firm is ready to begin exploring all potential defenses to your removal. Call 202-463-6036 to schedule a consultation.

Retaliation among most common EEO claims of federal employees

Federal employees facing discrimination, harassment or retaliation in the workplace have the right to bring an Equal Employment Opportunity (EEO) complaint. These complaints can be powerful tools to hold employers accountable and to ensure that federal workplaces are as free as possible of illegal discrimination, harassment or retaliation.

Each year, the Equal Employment Opportunity Commission (EEOC) compiles data on EEO complaints. The most recent report, titled Annual Report on the Federal Work Force sheds light on the most common types of complaints federal employees make.

Retaliation is the biggest issue in EEO complaints

In fiscal year 2014, the most recent year this data was compiled, federal employees filed 15,013 EEO complaints, with many complaints involving multiple allegations. In 2014, federal employees filed 7,018 retaliation complaints. Under federal law, employers cannot take any adverse action against an employee who engages in a protected activity.

Harassment was a common allegation as well. In 2014, federal employees made 6,102 harassment complaints. These complaints do not relate to sexual harassment, but rather other allegations of illegal workplace harassment. Discrimination was frequently alleged as well, with age discrimination being the most common type of claim. In 2014, 4,697 federal employees filed age discrimination complaints. The second most common type of complaint was discrimination on the basis of race, with 3,838 complaints. Disability discrimination was a close third, with 3,817 complaints.

Any federal employee facing retaliation, discrimination or harassment at work should take careful steps to protect themselves. A skilled lawyer will be critical in presenting a powerful case based in the facts and law. Contact Alan Lescht and Associates today if you are a federal employee who has been discriminated or retaliated against.

What Do I Do If The Office Of Inspector General Wants To Interview Me?

The Office of Inspector General (OIG) is a federal agency that investigates fraud, waste and other alleged misconduct, including job nonperformance, by government employees. If you are under investigaiton by the OIG, or are requested to appear at an OIG interview, it is important to know what is at stake. If the OIG believes you are involved in criminal activity, you could be subject to workplace discipline as well as criminal prosecution by the Justice Department for prosecution.

You have the right to an attorney when meeting with representatives of the OIG. It is critical to exercise this right at the earliest opportunity. At Alan Lescht & Associates, P.C., our law firm has a record of vigorously defending the rights of federal employees facing all types of allegations. We understand the unique nature of federal laws protecting employees, and will use this knowledge to protect you.

How Does An OIG Interview Work?

The OIG cannot force you to answer questions; however, your supervisor can discipline you for refusing to do so. Employees can only refuse to answer questions if their answers could be used against them in criminal proceedings. The lawyer you select can make a dramatic impact in the way this matter is resolved.

If you are under investigation, an attorney can help you comply with the investigation while presenting your case in the best light. Should the OIG recommend employment discipline, we can represent you in a hearing before the Merit Systems Protection Board (MSPB).

Contact Alan Lescht and Associates, P.C.

From our office in Washington D.C., we represent federal employees throughout Maryland, Virginia and beyond. Our lawyers and staff will do everything possible within the law to protect your rights and your employment. Contact Alan Lescht and Associates today if you are under investigation by the OIG.

EEOC: Sexual orientation discrimination is prohibited under Title VII

The EEOC recently ruled that sexual orientation discrimination claims may be brought under Title VII of the Civil Right Act of 1964. The Commission’s recent ruling in Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015), represents another significant victory in the hard-fought battle for the rights of the LGBT community.

The case arose after a man in Florida alleged that his employer, the Federal Aviation Administration (FAA) repeatedly failed to promote him to a frontline manager position because he is an openly gay man. Although the EEOC has not yet issued a decision on the merits of the discrimination claim, the July 10, 2015 decision held that the FAA is required to process Mr. Baldwin’s complaint of discrimination based on his sexual orientation, stating: “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex,” thereby creating an entitlement to protection under Title VII.

This ruling directly impacts federal employees because it applies to all federal agencies. In short, this decision affords federal employees the immediate right to be free from discrimination based on their sexual orientation. Many believe that the next step in LGBT rights will involve federal courts’ similar interpretation of Title VII to include prohibition of sexual orientation discrimination in the private sector but, at present, those waters remain uncharted.

Mr. Baldwin’s case represents a significant step forward for the LGBT community and for federal employees. If you believe that your federal employer has subjected you to discrimination based on your sexual orientation, you should immediately contact a federal employment attorney who will assist you in determining your rights under this changing area of the law.

Source: Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015) pdf

Can a federal employee appeal a forced retirement to the MSPB?

We frequently consult with longtime federal employees who are towards the end of their careers and find themselves dealing with a new and unpleasant supervisor who makes their work life hell.  By the time they get to us the situation at work is bad.  Either the supervisor has issued discipline, rated them unacceptably, or placed them on a PIP.  We are frequently asked if they can claim that they were forced to quit and then pursue a claim against the agency at MSPB.

No MSPB rights unless retirement resulted from intolerable working conditions

MSPB rules hold that in order to state a claim for involuntary retirement, also called a forced removal or constructive discharge, the employee must establish that the retirement was the result of intolerable working conditions.

However, MSPB applies this rule narrowly.  It requires that the employee must show that the agency’s efforts to force the employee out were the result of improper acts by the agency and a forced removal will not be found where an employee retires “because he does not like agency decisions such as a new assignment, a transfer, or other measures that the agency is authorized to adopt, even if those measures make continuation in the job so unpleasant … that he feels he has no realistic option but to leave.”  Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013).

There are many avenues available to address problems faced by longtime federal employees.  Don’t go it alone or rely on advice you find from the internet.  Contact Alan Lescht and Associates today if you face these issues and we will put our many years of experience to work for you.

What to do if you receive a cease and desist letter from your former employer?

On behalf of Alan Lescht & Associates, P.C. posted in Non-Compete Agreements on Friday, May 9, 2014.

Ten years ago very few people were asked to sign contracts that included non compete, non solicitation and confidentiality provisions. Today, that practice seems commonplace. And in today’s economy, we see people nearly every week who, after leaving a job on their own or by firing, receive a letter from their former employer threatening a lawsuit and/or demanding that the person either inform the new employer about the restrictive covenants, quit or stop working in their chosen field.

What to do if you get a letter like this?

First, take a deep breath. It is not the end of the world. Many restrictive covenants are written in such a way that they are so overly broad or unreasonable that they are not enforceable. Courts do not want you unemployed and so will take a very hard look at these agreements before putting you out of a job.

Second, look through your files and locate a copy of the agreement you signed. If you can’t find it, then politely ask your former employer to provide a copy of it to you.

Lastly, contact a lawyer who, like us, handles this type of work BEFORE you respond to your former employer or tell your current employer about the situation. I say this because it is important that you know whether there is any validity to the allegations made in the cease and desist letter and what your potential recourse is before you begin to tell other people about it or respond to the allegations.

The employment lawyers at Alan Lescht and Associates, P.C., provide advice and representation in matters involving non compete, non solicitation and confidentiality.

Non-compete prevents CVS from hiring former Wal-Mart VP

Most are familiar with Wal-Mart’s success as a company, and its uncanny ability to drive smaller competing businesses into the ground. But people are not necessarily aware of the legal battles Wal-Mart engages in to protect its marketing strategy.

On December 15th, Wal-Mart won a court order preventing CVS Caremark Corp. from hiring the man who formerly served as Wal-Mart’s executive vice president. Wal-Mart claims that its former VP is bound by a non-compete agreement.

Wal-Mart hired its former executive VP in 2006 and formed a non-compete agreement with him in 2009 upon appointing him president of Northern U.S. division of Wal-Mart. The agreement prevents the former VP from working for competitors retailing more than $5 billion in revenue for two years after leaving Wal-Mart.

The agreement was reportedly made to prevent the former VP from disseminating confidential information concerning Wal-Mart’s pilot program involving small-format markets. The former VP had been the executive sponsor of Wal-Mart’s small-format plan, and had oversight of 1,312 stores in 19 states during his time with the company.

In a hearing concerning the contract dispute, CVS argued that Wal-Mart brought the former VP on because of his expertise in management rather than for his knowledge about Wal-Mart growth strategy, and that any knowledge he may have is outdated. But the judge ruled that the non-compete agreement was reasonable. Wal-Mart’s request was granted as a preliminary injunction, which will prevent CVS from making the hire until the issue is tried in early March.

In the area of pharmacy retail, Wal-Mart has established itself as a competitor with companies like CVS, Walgreens, and Supervalu. The company currently has over 4,000 pharmacies.

Wal-Mart announced its plans last October to open 30 to 40 small-format markets in 2012. Its small-format strategy will place it in direct competition with companies CVS.

Source: Bloomberg, “CVS Can’t Hire Ex-Wal-Mart Vice President, Judge Says,” Sophia Pearson; Phil Milford, 15 Dec 2010.

Contact Alan Lescht and Associates today if you need legal advice about a non-compete agreement. We can review your contract and try to negotiate more favorable terms for you.