Defending Federal Supervisors and Co-Workers From EEO Complaints

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By John V. Berry, Esq., www.berrylegal.com 

We often represent and defend federal employees and supervisors involved as respondents in Equal Employment Opportunity (EEO) complaints. While many attorneys represent only complainants in EEO complaints, we also represent those co-workers and supervisors accused of EEO misconduct in their defense. In cases where a federal employee or supervisor has been named a respondent in an EEO case by another federal employee, it is very important for them to obtain legal advice and counsel throughout the EEO investigation in order to avoid disciplinary action later.  An EEO respondent simply means that the individual has been named as part of the EEO violations or misconduct at issue.

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Federal Employee Rights in OIG Investigations

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By John V. Berry, www.berrylegal.com

We often represent federal employees in investigations before the Officeof Inspector General (OIG) of their federal agency. When a federal employee is under investigation (or going to be interviewed) by their respective OIG it is important for them to be aware of their legal rights, options and best plan of action for any potential legal defense. This article covers many of the issues that arise when a federal employee is contacted by their federal agency’s OIG.

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Privacy Act Requests for Federal Employees

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By John V. Berry, Esq., www.berrylegal.com

It is often the case that we have clients that are seeking information about their own personal records maintained by a federal agency. These requests can relate to a former employee’s Official Personnel Folder, an administrative investigation, security clearance records, and all sorts of other types of information that involve them. We are often
retained to assist client in making such requests.  privacy-actThis article is general in nature and an individual should consult an attorney familiar with the Privacy Act prior to making a request.

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Performance Improvement Plans (PIPS) for Federal Employees

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By John V. Berry, Esq., www.berrylegal.com

Our law firm represents federal employees who have been placed on a Performance Improvement Plan (PIP) relating to alleged poor performance. Federal employees should always be wary if they learn that a PIP is being recommended or considered as a means of correcting a federal employee’s work performance. In our experience, the issuance of a PIP almost always indicates the beginning of the removal or reassignment process for a federal employee. Federal employees, however, are usually told that a PIP is only designed to benefit them and make them better performers. This, unfortunately, is not the usual case.

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Office of Compliance Complaints for Congressional Employees

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By John V. Berry, Esq., www.berrylegal.comOOCRequestforCounselingForm.jpg-0001

We represent and advise congressional employees in the filing of Congressional Office of Compliance (OOC) complaints against congressional agencies / employers under the Congressional Accountability Act of 1995 (CAA). A number of issues can arise when an OOC complaint is contemplated that should be considered by a congressional employee before proceeding. This article is a short summary of the OOC complaint process.

Which Employees are Covered by the CAA?

The CAA roughly covers approximately 30,000 employees of Congress. The following congreOOCRequestforCounselingForm.jpg-0002ssional employees are generally covered by the CAA:

U.S. Senate employees (D.C. and state office staff)
U.S. House of Representatives employees (D.C. and state office staff)
U.S. Capitol Police employees
Architect of the Capitol employees
Attending Physician employees
Congressional Budget Office employees
Office of Compliance employees
Office of Congressional Accessibility Services employees

In addition, the CAA partially covers Library of Congress and Government Accountability Office employees.

What Employee Rights Does the OOC Enforce?

The OOC provides relief for congressional employees seeking relief for covered illegal actions taken by congressional employers which violate the CAA, involving, among other claims: (1) age discrimination; (2) disability discrimination; (3) Equal Employment Opportunity violations (race, color, religious, sex or national origin discrimination); (4) the Fair Labor Standards Act (FLSA); (5) family medical leave; (6) occupational safety and health; (7) uniformed services protections (USERRA); (8) Veteran’s Employment Opportunity Act (VEOA); (9) genetic discrimination and (10) labor law (collective bargaining) violations.

Considerations Before Filing a OOC Complaint

The first step prior to filing an OOC complaint is for a congressional employee to consider seeking legal counsel for advice and/or representation in the OOC process. Congressional employers are well represented in the OOC process, and a congressional employee should consult with their own attorney before starting the OOC process. This is highly recommended and can make a difference in providing needed details in an OOC request for counseling / complaint and also help to resolve a complaint as early as possible in the process.  It is also important to keep an eye on the timing of a complaint.  Generally, the counseling process must be initiated no later than 180 days after the violation.

Stages of OOC Complaint

There are 3 principal stages to an OOC complaint: (1) counseling; (2) mediation; and (3) administrative hearing or civil action.

Counseling

The first step of the OOC process involves filing a request for counseling with the OOC. A sample of such a request is attached to this article.  Once the request is received, a counselor from the OOC will speak to the congressional employee and their counselor about the issues in the case. OOC counseling is considered confidential and the congressional employer is not notified that the employee has filed the claim unless the employee decides to pursue the claim following the counseling period. During the OOC counseling stage, the assigned OOC counselor will discuss the OOC complaint process, attempt to answer questions and to clarify the claims. The OOC counseling process normally lasts 30 days.

Mediation

If the congressional employee goes forward, the next step, following counseling at the OOC, is mediation. Mediation is confidential and conducted before a neutral mediator hired by the OOC to hear both sides of the employment dispute and to assist the parties in possible settlement of their cases. Typically, the employee, through counsel, will present their view of the case and what they are seeking as a remedy and then the employer’s counsel will discuss their view of the case. Often, the sides are separated into caucuses in order for the mediator to help facilitate settlement. It is often the case that the parties can come to a settlement during the mediation phase. Mediation can take more than one session to complete if the parties are making progress.

Administrative Hearing or Civil Action

If mediation does not resolve a case, the next step is to consider taking the case forward to litigation. At this stage, the employee has a choice between going through the OOC hearing process or, alternatively, taking a case to U.S. District Court. We typically advise congressional employees to take their employment disputes through the OOC hearing process. During the OOC hearing process, the OOC will appoint a hearing examiner to preside over the case.

Both processes involve litigation, but the OOC hearing process tends to be quicker. The OOC hearing process is intended to provide a hearing within 60 days of the filing of a complaint. Obviously, this requires speed in moving through the discovery and depositions process, but typically the process is much quicker than going into U.S. District Court. The court process can take significantly longer. That being said, each individual case requires an analysis to determine the best approach because filing in court may be the better option depending on the facts of a case.

Appeals

Following an adverse decision at the OOC or in U.S. District Court there are available options for filing an appeal. If an employee is appealing a decision from the OOC administrative hearing process the first appeal would go to the OOC Board of Directors. If an employee is appealing an adverse decision from U.S. District Court the first appeal would go to the U.S. Court of Appeals.

Conclusion

When a congressional employee is considering the filing of an OOC complaint it is important to obtain legal counsel early in the process. Our law firm advises and represents congressional employees before the OOC. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The firm’s Facebook page is located here.