Tuesday, January 26, 2010

Federal Security Clearances:  Fighting to Get & Keep One

FEDERAL SECURITY CLEARANCES:  FIGHTING TO GET & KEEP ONE*

By John P. Mahoney, Esq., Partner, TULLY RINCKEY, PLLC, Washington, DC† (http://fedattorney.com)

The Federal Government is pretty good at keeping secrets.  When it comes to national security, the Feds do their best to ensure that only trustworthy people have access to classified government information and operations.  In order for federal employees and federal contractor company employees to have access to national security secrets, their personal backgrounds must be thoroughly investigated and they must be granted security clearances.  Since September 11, 2001, most workers on federal government facilities are required to qualify for and possess a security clearance as a condition of their continued employment.  For such employees, the loss or suspension of their security clearance means the loss of their jobs.  There are due process rights that apply when a federal agency proposes to suspend, revoke, or deny an employee’s security clearance.  However, unlike most federal employment due process procedures, there is no right to court review of an adverse federal agency’s security clearance decision, as the privilege to possess a federal security clearance is solely within the discretion of the Executive Branch of the Government of the United States.  Given that, an employee fighting to get or hold on to a security clearance must convince the Executive Branch that he or she qualifies for that employment privilege. 
   
Federal employees and contractors are often hired for their secured jobs before all their background checks have been completed.  On occasion, the government may ultimately determine that a provisionally hired employee or contractor is not suitable to possess a security clearance.  If the employee is unsuccessful in convincing the government to change its initial determination, he or she will be terminated.  People who are ultimately terminated by the federal government based upon a denial or revocation of a security clearance will often find it very difficult to secure another job, either in the federal or private sectors, as getting fired by the federal government based upon national security concerns does not make one very employable thereafter.

For most federal employees, the process of deciding to revoke a security clearance is governed by Executive Order 12968, which was signed by President Clinton on August 2, 1995.  Under that Executive Order, a federal employee has the right to a “personal appearance” before a federal administrative judge, which is akin to an oral reply in a federal disciplinary case.  Federal contractors actually have more due process rights than do federal employees, as contractors have the right to a full contested evidentiary hearing before a judge.  In the case of a federal employee, the judge’s decision is merely recommended, as the employing agency has the final decision as to who receives a security clearance from that particular agency.  For a contractor, the judge’s decision is final, although it can be appealed to the Department of Defense’s Office of Hearings and Appeals. 

When an agency initially determines that an employee does not meet the standards for access to confidential information, that employee shall be:

1. Provided as comprehensive and detailed a written explanation of the reasons for the denial of the clearance as national security interests and applicable law permit, usually called the “Intent to Revoke Access Eligibility” or the “Statement of Reasons”;
2. Provided documents, records and reports upon which the clearance denial is based, to the extent such documents would be provided under the Freedom of Information Act and the Privacy Act, within 30 days;
3. Informed of their right to counsel or other representative, to request documents, and to request the entire investigatory file,  If requested, these materials shall be promptly provided prior to the time set for the written reply;
4. Provided a reasonable opportunity to reply in writing to the determination, and to request a review of that determination;
5. Provided written notice of and reasons for the results of the review, the identity of the deciding official, and written notice of the right to appeal;
6. Provided an opportunity to appeal in writing to a high-level panel appointed by the agency head.  The panel shall be compromised of three members, two of whom shall be selected from outside the security field.  Panel decisions are to be in writing and are final; and
7. Provided an opportunity to appear personally and to present relevant documents, materials, and information at some point in the process before an adjudication or other authority, other than the investigative authority, as determined by the agency head in an ex parte nonadversarial hearing.  A written summary or record of such appearance shall be made part of the employee’s security record, unless the appearance occurs in the presence of the panel.
 
The purpose of the security clearance review process is to give the employee or contractor the opportunity to convince the federal government that, when considered as a “whole person,” any security concerns that the agency had against the employee are sufficiently mitigated by corrective action taken by the employee in a timely fashion so as to convince the government that it is clearly in the national security interests of the United States that the employee’s clearance be granted or restored.  Given the complexities and stakes of a federal security clearance decision, it is advisable that someone facing the denial or revocation of their security clearance seek representation by a qualified attorney who specializes in security clearance representation.

* Copyright© 2010 TULLY RINCKEY, PLLC.  All rights reserved.

† John P. Mahoney, Esq. is a Partner in the Washington, DC Federal Employment Law Firm of TULLY RINCKEY, PLLC.  (http://www.fedattorney.com).  Mr. Mahoney specializes in representing federal government agencies and officials, as well as federal contractors, in all facets of federal employment law, including security clearance litigation.

Monday, January 25, 2010

WORKPLACE VIOLENCE: EMPLOYERS NEED TO BE BETTER PREPARED

As an employment attorney and President of an HR Consulting Firm who makes my living conducting employment law training, I am hard-pressed to understand why employers are not better prepared for workplace violence.  I guess that one reason is that it takes years of litigation for employers to “get it”.  Similar to sexual harassment that first appeared in the 1970’s which took almost 35 years for most employers “to get” and to come to understand that they had to conduct training to avoid liability under the employment discrimination laws, I assume that the same is true of workplace violence.  Perhaps we are just in its infancy when many employers are not yet aware that it could happen in their workplace and also do not really know how to prepare.  Or perhaps it is due to the fact that many employers just really do not understand the consequences of having an instance of workplace violence occur in their workplace.

What are some of the consequences of workplace violence in a workplace?  Of course there is the immediate consequence of the horrific loss of life and unnecessary violence they and their employees have to endure.  In addition, there is the PR nightmare of being known as a company that failed to prepare for workplace violence and the appearance of your company on the evening news with police crime scene tape all around your workplace.  But perhaps employers don’t understand the deeper implications that failing to prepare for workplace violence can have on them.

What deeper implications you ask.  Well, first of all there is the possible liability under OSHA since all employers have an obligation under the general duties clause to provide a safe workplace for their employees.  Specifically, under OSHA employers must provide a place of employment “free from recognizable hazards that are causing or likely to cause death or serious harm to employees”.
But in addition, there is what is perhaps even more startling for employers, the fact that they can be held liable for the injuries caused by these instances of workplace violence under many creative theories of liability that plaintiff’s attorneys utilize.

First there are the negligent hiring theories of liability.  What does this mean? This means for example that a good plaintiff’s attorney would argue that had your human resources department done their part to check this employee’s background prior to hiring the employee, you would have known that he had been fired from his prior job for an instance of violence or that he had prior criminal convictions.  By failing to check his background, you were negligent in the hiring process and brought this dangerous employee onto your premises where there was a likelihood that he would be violent again.  What kind of damages are we talking about in these cases?  Damages that can be in the millions.  One reason this is such a worthwhile claim for plaintiffs to allege is because they can be awarded punitive damages in addition to compensatory damages.  This makes it very appealing as a claim for many plaintiff’s attorneys.

Then there are the negligent retention theories.  This is where the plaintiff alleges that you the employer were aware of the disgruntled worker’s tendency for violence and for jumping off the deep end and yet you failed to discipline him when he worked for you and failed to terminate him.  Thus, the theory goes that by retaining him without warning him to not continue to engage in discipline and by not getting rid of him, you subjected your employees to a person prone to violence and were thus negligent.

Either theory can lead to liability for employers.  For instance, in Yunker v. Honeywell, Inc., (496 N.W.2d 419 (Minn. Ct. App. 1993)) an employee at Honeywell had been previously fired for strangling an employee. The employee served five years in prison and then when he got out he applied to work for Honeywell again.  Honeywell hired him.  The HR professional who hired the employee hired him knowing he had been terminated for this prior incident of workplace violence.  Once the employee was rehired he engaged in numerous instances of harassing and threatening behavior toward co-workers and also became interested in a female co-worker.  After she rejected his romantic advances toward her, he shot and killed the co-worker in her driveway outside of her house.  The family of the victim sued Honeywell claiming both negligent hiring and negligent retention.  The court rejected the negligent hiring claim because he was rehired as a janitor whose job had very little interaction with other employees.  However, the court upheld the negligent retention claim on the theory that Honeywell had notice of the possibility of violence since the employee had harassed this woman at work and had painted a death threat on her locker door.  She had complained to the company and they had done nothing.  By failing to take action while continuing to retain him as an employee, the Court held that Honeywell had negligently retained the employee and they were held liable.

In another negligent hiring case, B&L Motor Freight was held liable for 4 million dollars for negligently hiring an employee who had prior criminal convictions even though he had stated he had none on his employment application.  This employee had raped another employee.  The court held that the employer should have checked his background for criminal convictions since he had access to interactions with others.  Similarly, in a Goodwill Industries case, the employer was held liable for 5 million dollars when a 15-year old employee was raped and murdered by an employee with a criminal background.  The employer had failed to do a background check on this employee.

What is the lesson for employers?  In my mind it is simple, training.  Training your managers and HR professionals to understand everything they need to know to prevent workplace violence.  Your managers and employees need to be trained on the importance of conducting background checks as well as on how to recognize the warning signs of workplace violence.  They also need to be trained on the importance of taking appropriate disciplinary action against employees for violent behavior they exhibit in the workplace.

Instances of workplace violence clearly are occurring more and more frequently.  Since the beginning of 2010 there have already been two serious incidents of workplace violence.  First there was the recent instance of workplace violence in St. Louis, Missouri on January 7, 2010 that left 4 dead including the shooter, Timothy Hendron.  Apparently Mr. Hendron was a disgruntled assembly-line employee upset about the high cost of his retirement benefits.  He worked at ABB Group, a transformer manufacturing plant in St. Louis.  He was so upset that he apparently had instituted a lawsuit against his company.  Seeking to take matters into his own hands, on January 10, 2010 he walked into the plant carrying an assault rifle and handgun and started shooting.  His actions left 4 dead including himself.  Witnesses described the scene as utter chaos.

Then there was the instance in which a former employee on January 12, 2010 returned to his former workplace, a truck rental company, and opened fire, killing 3.  Five others were also injured in this second instance of workplace violence in 2010.  Although we can never be ready for such instances of violence, I still find myself wondering if such incidents could not have been prevented by simple training and preparation that these employers might have done that could have saved these lives.  Were there missed warning signs by those who managed and worked with these employees?

Missed warning signs has emerged as a major factor in the violence that occurred at the Fort Hood shooting massacre in November 2009.  The Pentagon Report which was recently released indicated that there were numerous warning signs that supervisors did not see or failed to report.  Warning signs that if paid attention to could have possibly prevented the horrific instance of violence that took place in November at Fort Hood.  Warning signs that properly trained managers might have noticed and acted on.  In fact, the Army Report recommended severe reprimands for Hasan’s managers who should have noticed these warning signs and yet failed to act.

What lesson does all of this provide for employers?  I think the message is simple and clear.  Employers that wish to be proactive and protect and prevent workplace violence in their workplaces need to recognize that this is a case where an ounce of prevention can be worth a pound of cure.  What type of prevention?  First and foremost, employers should have a well-drafted workplace violence policy.  Next, they need to provide training as discussed above both on their workplace violence policy as well as on workplace violence in general.  Such training can be essential when it comes to having a viable defense to a case seeking to hold the employer liable for the workplace violence.  It shows that the employer recognized that there could be a problem and took affirmative steps to prevent such a problem.  Employers should also ensure that they thoroughly check references for all candidates including prior criminal convictions, driving records and any other relevant information.  They also need to ensure that they act promptly and impose discipline, up to and including termination if necessary, when an employee has evidenced violent tendencies on the job so that they can avoid any claims of negligent retention.

Clearly, this is where employers need to focus their training efforts in the coming months.  Training your workforce on how to recognize the warning signs of workplace violence and on how to prepare for instances of violence can help you prevent and be better prepared if violence should arise in your workplace.

Submitted by: Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
info@hrlearningcenter.com

Tuesday, January 19, 2010

Department of Labor Publishes COBRA Subsidy Extension Model Notices

The government has published updated model forms for the recently extended COBRA subsidy.

Congress passed legislation on December 19th extending the COBRA subsidy eligibility period and coverage period. The extension came as part of the Fiscal Year 2010 Defense Appropriations Act.

The 2010 DOD Act extends the COBRA premium reduction eligibility period for two months until February 28, 2010. This means that employees who are terminated on or before February 28, 2010 may be eligible for the subsidy.

Additionally, the legislation increases the maximum period for receiving the subsidy for an additional six months (from nine to 15 months).

The legislation also helps those who already exhausted their subsidy period under the original legislation. Individuals who had reached the end of the reduced premium period before the legislation extended it to 15 months will have additional time to pay the reduced premiums related to the extension. To continue their coverage they must pay the 35% of premium costs by 60 days after date of enactment or, if later, 30 days after notice of the extension is provided by their plan administrator.

Individuals who lost their subsidy and paid the full 100 percent premium in December 2009 should be told to contact their plan administrator or employer sponsoring the plan to discuss a credit for future months of coverage or a reimbursement of the overpayment.

In addition to the notice requirements already mandated under ARRA, the 2010 DOD Act requires employers to provide notice of the new rights.

The employer or its group health plan administrator must give notice to any individual who was already eligible for the subsidy as of October 31, 2009. The notice must be given within 60 days of enactment (i.e. by February 21, 2010). The notice must also be given within 30 days to any individual who becomes eligible for the subsidy (i.e. terminated) on or after October 31, 2009. The new notice must provide information regarding the 2010 DOD Act amendments.

The Act also requires notice to individuals who either dropped COBRA or paid the full premium for it when their nine-month subsidy ended. The notice explains that they have two options: to either reinstate their coverage retroactively at the 35% subsidized rate, or to receive a credit or refund.

The DOL has published the updated model forms on its website, which can be found at this link.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC