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by ARLnow.com Sponsor April 23, 2018 at 12:25 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

We defend federal employees in proposed disciplinary actions. When a federal employee is facing proposed discipline it is important for them to speak with an attorney knowledgeable in federal employment law for legal advice and representation. This article outlines some brief thoughts for federal employees as they respond to proposed disciplinary actions.

Types of Proposed Discipline

Most proposed disciplinary or adverse actions for federal employees fall into 3 general categories for federal employees: (1) proposed suspension or demotion actions based on misconduct; (2) proposed removal actions based on misconduct; and (3) proposed removal actions based on performance deficiencies (i.e. a PIP).

Proposed Disciplinary Action

When a federal employee receives a proposed disciplinary action (suspension of 14 days or less) or an adverse action (suspension of over 14 days to removal), they should read over the notice very carefully. Each federal agency sets their own deadlines for submitting responses and requesting information relied upon and these deadlines are usually strict.

Along with a copy of the proposed discipline, when it is issued, the federal agency may provide an employee a copy of the materials in the evidence file (documents, reports, emails, recordings, video, photographs, etc) that they are relying upon in proposing the action (often referred to as the “information relied upon.”).

It is critical for a federal employee to request and obtain these materials prior to responding in writing or orally.

Response to the Proposed Disciplinary Action

It is important for a federal employee to not only submit a comprehensive written response, along with documentation (affidavits, character letters, statements or other evidence) refuting the charges and specifications or in providing arguments for mitigation, but also to request an oral response. (more…)

by ARLnow.com Sponsor April 9, 2018 at 12:45 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

When an individual with a security clearance is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized again, but at a higher level.

For instance, if an individual has been previously approved for a Secret level clearance and is then submitted for a Top Secret (TS) level clearance by their employer, the individual could be denied based on the same concerns that existed when he or she was approved for a Secret level clearance.

This more often occurs when the individual holds a Top Secret (TS) clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.”

Clearance Upgrade Dilemma

One common problem with security clearance upgrades occurs when an employer submits a request to upgrade an individual’s security clearance (e.g., from Secret to Top Secret).

Sometimes the individual is made aware of the requested upgrade by the employer and sometimes he or she is not. It is possible that an individual can be approved for a lower level security clearance with existing security concerns, but that he or she can still be denied when submitting for a security clearance upgrade even if there are no new security concerns.

As an example, suppose an individual is approved for a Top Secret security clearance by the Department of Defense (DoD), after mitigating some security concerns about past due debts or bad credit, and is then submitted for SCI access at an intelligence agency.

The intelligence agency may consider those debts more serious than the DoD, and deny the person SCI access approval based on the same financial issues that were first resolved favorably when the individual applied for his or her Top Secret clearance.  This upgrade denial can potentially have significant consequences.

Result of Unfavorable Upgrade

The result of a clearance upgrade denial might be that the individual, at best, likely has to list the prior denial in future clearance applications, and at worst, could cause the individual to lose (or have to defend) his or her existing security clearance.

Depending on the employer and federal agency involved, there are appeals processes to challenge the clearance upgrade denial, but it is something to seriously consider if there are security concerns in one’s background and a clearance upgrade is proposed.

Conclusion

It is important to consider the impact of upgrading a security clearance or security access before applying when there are previous security concerns at issue. Individuals should consult with counsel if they have any security concerns at issue.

If you need assistance with a severance agreement or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.

by ARLnow.com Sponsor March 12, 2018 at 12:45 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

While it is not always possible to avoid litigation in employment cases, resolving an employment dispute without litigation, if possible, is strongly recommended and should be considered by both employees and employers.

We have represented both employees and employers and the benefits of resolution usually far outweigh the lengthy litigation process. Some benefits to consider include:

1. Avoid Extended Litigation: We have had employment cases in extended litigation that take between three to six years in the court process.

When going into an employment case, an employee and employer should consider whether it makes sense to litigate these types of cases over such a potentially long period of time.

Usually, employees do not want to have such a long period of uncertainty to their career, and an employer does not want to spend $50,000 to $100,000 (or more) litigating an employment case. Employers can also have similar uncertainties about staffing while a case is pending.

2. Limiting Costs: Extended litigation can cost a lot of money for both employees and employers.

Employees usually pay for these fees out of pocket and employers either pay these fees out of pocket or through increased premiums in their use of insurance defense policies.

Some of our most satisfied clients are those who have decided to resolve their disputes early in the process and save themselves money. They may reach a compromise that is not perfect, but sometimes it is far better than the result of the litigation.

3. No Stress from Discovery: Because we have taken a number of depositions over the years of managers, witnesses and employees, we can tell you that going through the discovery process can take a stressful toll on both employers and employees.

The former employee often undergoes a high level of stress in telling his or her story to an opposing attorney who is looking to disprove their account through questioning.

For employers, it is no better because managers also get stressed about telling the truth while being loyal to the company. Managers also tend to be far less productive at work when they’re under this type of stress.

For both sides, discovery also means going back through emails (sometime work, sometimes personal emails) and other documents and producing them to the other side. (more…)

by ARLnow.com Sponsor February 26, 2018 at 12:45 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

The U.S. Women’s Hockey Team not only just won Olympic Gold, but significantly advanced the equal pay argument for all women.

Their victory and Gold Medal ended a difficult year on and off the ice for the team. They worked together despite almost losing their positions on the team in a hard fight for equal pay before the most recent Olympics in Pyeongchang, South Korea.

In March 2017, about twelve months before the Olympics, the U.S. Women’s Hockey Team threatened to sit out of the Ice Hockey Federation World Championship unless USA Hockey agreed to treat them the same as the U.S. Men’s Hockey Team. The female hockey players sought equal treatment in comparison to the men’s team. Specifically, the U.S. Women’s Hockey Team sought the same salary, equipment, staff, travel, per diems and media publicity as the U.S. Men’s Hockey Team.

It is hard to believe that the dispute lasted nearly a year, but the U.S. Women’s Team won. They were awarded up to $70,000 a year in salary (up from $6,000). USA Hockey also agreed that the women’s hockey team would receive the same travel stipends and accommodations as the men’s hockey team, along with better marketing and media efforts.

In our practice involving equal pay, we are seeing more women employees challenging and demanding equal pay for equal work.

In April of 2016, we wrote about a similar challenge that was advanced by the U.S. Women’s Soccer Team, despite the fact that they had already won the World Cup in 2015.

The combined efforts of the U.S. Women’s Hockey Team and U.S. Women’s Soccer Team illustrate the fact that collective action and success by women can be key to eliminating egregious pay disparities for the same work. Their efforts also have a direct and positive impact on all other types of employment and equal pay disputes.

We represent employees in Equal Pay matters. If you need assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.

by ARLnow.com Sponsor February 12, 2018 at 12:45 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Not too long ago, maybe 5 years or so, there were clearly two groups of individuals that would apply for security clearances.

There would be a group of individuals at the highest levels of our government that would be allowed to obtain security clearances despite having very significant security concerns, and then there was everyone else (federal employees and government contractors) that had to go through a often lengthy clearance appeals process to obtain a security clearance with nearly the same issues, sometimes going months without pay while they wait.

This disparity, in this author’s opinion, is starting to fade. In my interview last Thursday with Wolf Blitzer on Inside Politics about the emerging Rob Porter crisis, I spoke about the disparity that exists between highly placed employees (e.g. White House) and most of the rest of employees and contractors that attempt to obtain security clearances.

It occurred to me as I was speaking that we, as a society, may have reached critical mass on this issue. Perhaps it was inevitable due to increased use of social media (Facebook, Twitter, etc.) or just the society we live in today, but change is definitely on the horizon.

It was not too long ago that I would represent security clearance clients at both sides of the spectrum with nearly identical security concerns (e.g. prior drug use, assault allegations or financial issues), where they were treated differently.

Too often, the higher-level employees I represented (usually appointees) would be treated more preferentially than other federal employees or contractors. I always felt that, in that sense, the clearance process was unfair. It certainly doesn’t follow the principles in Executive Order 12968.

In any event, with the recent scrutiny involving the White House security clearance process for Robert Porter and Chief of Staff John Kelly, along with other recent issues and trends, I think that the tide has started to turn.

I believe that we are moving towards a future where employees seeking to obtain a security clearance, at all levels, will start to be treated more similarly. I think that the fear of not doing so, and then being called on it later in social media, may help enforce this; that is a good thing.

I enjoy representing all types of employees and appointees in security clearance matters, but feel that the process should be fairly applied across the board.

Our law firm represents and advises employees on security clearance matters nationwide. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

by ARLnow.com Sponsor January 29, 2018 at 12:45 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Virginia Delegate Chris Hurst has introduced new legislation that he hopes will reduce incidents of workplace violence in the Commonwealth of Virginia. Specifically, the proposed legislation would grant civil immunity to employers who share information about violent acts or threats made by current or former employees with potential employers or law enforcement.

In addition, a job candidate would not be able to sue a current or former employer for sharing his or her previous violent or threatening behavior with a prospective employer that will impact a hiring decision.

Delegate Hurst’s House Bill (HB 1457) would allow hiring managers to openly discuss job candidates with their current, prospective or former employers. The text of the proposed law reads as follows:

  • 8.01-226.10:1. Immunity of employers and potential employers; reports of violent behavior.
  1. Any employer who, in good faith with reasonable cause, makes or causes to be made a voluntary report about violent or threatened violent behavior, by an employee or former employee to a potential employer of such employee, or to any law-enforcement officer or agency, shall be immune from civil liability for making such report, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer knew such report was false, or made such report with reckless disregard for whether such report was false or not.
  2. Any potential employer who receives a report from an employer pursuant to subsection B of an employee or potential employee and takes reasonable action in good faith to respond to the violent or threatened violent behavior noted in such report shall be immune from civil liability for such action.
  3. Any employer or potential employer who has a suit dismissed against him pursuant to the immunity provided by this section shall be awarded reasonable attorney fees and costs.

Understandably, former employers would like the freedom to discuss workplace incidents by former employees with other employers without being subject to potential liability. However, some problems with this potential law relate to how to do so in a way that protects an employee’s rights or does not place him or her on some type of permanent “do not hire” list. Oftentimes, employees are wrongfully terminated or accused of significant misconduct (even about alleged threats) that is not true. As a result, some supervisors or employers may feel free to exaggerate or retaliate against a former employee under this new law. (more…)

by ARLnow.com Sponsor January 16, 2018 at 4:15 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kimberly H. Berry, Esq.

When an employee has been accused of engaging in workplace misconduct, the employer will sometimes conduct an administrative or internal investigation. Some reasons why employers investigate employees include discrimination complaints, threats against others, safety problems and workplace theft.

Purpose of Workplace Investigations

The purpose of workplace investigations is for the employer to gather relevant evidence regarding the employee’s alleged misconduct and determine whether the misconduct warrants a disciplinary or an adverse action (e.g., termination or significant suspension) within the requirements established by law, policy or regulation or with respect to the employer’s own liability.

Occasionally, these types of investigations can lead to a potential criminal investigation. Depending on whether the employer is federal, the District of Columbia, Virginia or involves a private employer, a supervisor or other designated investigator may be asked to conduct an investigation regarding the facts at issue. Employees may then be asked to provide verbal or written responses to questions regarding the alleged misconduct.

Duties to Cooperate

During an investigation, an investigator (often a law firm) will be hired to conduct a workplace investigation. They will review documents related to the investigation and/or interview witnesses, depending on the investigation. Employees, depending on their particular employer, may have a duty to fully cooperate with an assigned investigator or can decline to participate in the investigation unless they are ordered to do so.

For example, federal employees may decline to participate in an administrative investigation if it is voluntary. Refusing to cooperate with an investigation or providing false statements or answers during an investigation can be grounds for disciplinary action. Providing false statements, if made to a federal or other law enforcement investigator, can also subject an employee to potential criminal penalties.

Employer Risks in Not Conducting Investigations

Internal or administrative investigations can also involve risks for the employer. Inadequate workplace investigations may raise questions regarding the accuracy of the results or whether the employee was treated fairly. In addition, the employer may not like what the investigation uncovers and will have an obligation to resolve or address issues, such as a systemic problem or legal impropriety.

Consider Legal Advice if Serious

Prior to providing information to an employer, depending on the severity of the issues under investigation, it can be important for an employee to discuss with an attorney the issues associated with the information being sought by the employer and the employee’s role in the matter being investigated.

An attorney familiar with administrative or internal investigations can provide legal advice to assist an employee in preparation for responding to questions about his or her actions in the matter being investigated. In addition, an attorney, in many circumstances, can often accompany the employee during any investigative interviews.

Our law firm represents and advises employees on employment-related matters in the District of Columbia and Virginia. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

by ARLnow.com Sponsor January 2, 2018 at 4:45 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

Termination from employment can be very devastating, especially when it is completely unexpected. Most often, employees allow their emotions to get the best of them and become angry upon receiving notice of termination from their employer. However, it is very important for employees to try to handle a termination the right way. Here are five tips to consider if you are being terminated:

  1. Handle Termination Day Without Getting Visibly Angry: This is by far the most important tip and usually one of the most difficult to do. Individuals who cannot keep their emotions in check often end up in a much worse situation than those who gather their belongings and leave quietly. For example, if an individual makes a scene when they are terminated, the employer may exaggerate the situation and call the police. Furthermore, leaving in a pleasant manner makes it much easier to settle a wrongful termination case with the employer later. By doing so, it also reduces the possibility that the employer will challenge the former employee’s attempt to obtain unemployment compensation or cause a problem if the former employee later applies for a security clearance or another employment position.
  2. Dont Take Employer Materials: Employees should be very careful not to take proprietary employer materials, physical items or other types of employer documents or digital materials without permission when leaving employment. If an employee brings forth a legal claim about termination it is often an employer defense to allege that the former employee stole materials (even information) or proprietary data.
  3. Dont Sign Agreements Presented at Termination: Employers will often try to limit their liability by presenting agreements to employees they are terminating. Such agreements might offer a week’s pay in exchange for extinguishing all of the employee’s rights or may even offer nothing. Given the emotional trauma of being terminated, individuals should never sign a binding agreement as they are being terminated. Before signing such an agreement, it is very important to have an attorney review it. Once such an agreement has been signed, it is very difficult to take any type of legal action later.
  4. Consult with an Attorney if Wrongful Termination Issues Arise: Not all terminations are wrongful under Virginia law. However, if an individual believes that he or she was wrongfully or illegally terminated and is concerned with his or rights, he or she should seek legal advice from an employment attorney in a timely manner since many employment rights are time sensitive.
  5. Obtain a Reference: If a former supervisor will not serve as a reference, try to seek others, such as former supervisors or coworkers, who no longer work for the former employer. Having employment references will vastly improve one’s chances of quickly obtaining new employment. Even if an individual has been terminated, having someone available who can speak to his or her work ability can help mitigate the damage of the termination.

(more…)

by ARLnow.com Sponsor December 18, 2017 at 12:45 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry

The Congressional Accountability Act (CAA) is a law that governs the complaint procedure against Members of Congress and congressional employers in cases involving sexual harassment, discrimination, retaliation and other related labor and employment matters.

The CAA has played a part in protecting Members of Congress and other congressional employers from having to pay or disclose settlements involving discrimination or sexual harassment. The CAA is flawed and changes to the law have been proposed. The CAA covers 13 employment-related laws, but the major problems in the law relate to the handling of sexual harassment and discrimination cases.

The problems with the CAA are many. First, the CAA itself was passed immediately after the Republicans took over Congress in 1995. It was essentially an attempt to place Congress under similar rules as other federal employers but with built-in protections for Members of Congress in order to protect them. The CAA was not debated extensively and many loopholes were left when enacted. Second, the CAA left out the ability of congressional employees to challenge improper employment terminations or adverse actions — rights given to most other federal employees through the Merit Systems Protection Board (MSPB).

Main Issues With the Current CAA

  1. Claims take too long.

The CAA takes too long to address claims, often stifling congressional staffers from filing complaints. Under the CAA, one cannot start the process of initiating a complaint of sexual harassment or discrimination for at least 30 days while waiting in a holding period known as the counseling process. A regular federal employee can initiate a complaint immediately, and regular federal agencies may take immediate remedial action against illegal practices. This is not the case for Congress.

Once a congressional staffer waits 30 days in the holding period, he or she must proceed to mandatory mediation with the congressional employer. This is not required for regular federal employees. This process can take at least 30 days or more. If mediation succeeds, it is confidential. If mediation fails, which it often does, then the next step is for the congressional staffer to wait another 30 days to file an administrative complaint or go to federal district court. Then after filing a complaint, the process in the courts can take years, or the congressional staffer can agree to expedite his or her case through the in-house confidential process, which only becomes known if the case decision is appealed.

Congress should change the CAA to enable congressional employees and staffers to have the same rights as regular federal employees. Doing so might put an end to serious cases of sexual harassment, retaliation or discrimination rather than allow it to linger while the process unfolds.

  1. Members of Congress have extensive legal representation that they do not pay for.

(more…)

by ARLnow.com Sponsor December 4, 2017 at 1:30 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

Can an employer in Virginia require an applicant or employee to submit to a polygraph examination in order to make a hiring or retention decision?

Although employers in the private sector are permitted to use polygraph examinations on their applicants or employees, employers must adhere to strict rules. These include providing “the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.” In addition, there are federal and state restrictions on polygraph usage.

Employee Polygraph Protection Act

On the federal level, the Employee Polygraph Protection Act (29 U.S.C.§ 2001- 2009) provides for strict limits on the use of polygraphs in the workplace for applicants and employees. The EPPA bars most types of employers in Virginia (and other states) from requiring or even suggesting that a current employee or job applicant submit to a polygraph examination. The EPPA also prohibits employers from utilizing the results of any polygraph examination.

However, the EPPA does not apply to Virginia employees who work for federal, state and local governments. Polygraph examinations can often be part of the legal processing of a federal security clearance. The EPPA also does not apply to private sector employees engaged in security-related employment (e.g., security guard, armored car services). The EPPA permits polygraph testing, subject to restriction, of certain types of employees who are reasonably suspected of involvement in workplace theft or embezzlement that resulted in an economic loss to the employer. The Department of Labor has provided a good summary of the law under the EPPA act.

If an employer is found liable by a court under the EPPA for not following the law regarding polygraph use, the employer can be held liable for penalties up to $10,000; lost wages and benefits; and attorney’s fees. There is also equitable relief where an employee can seek reinstatement or lost promotions as a result of the employer’s violation of the EPPA. Thus, employers need to be extremely careful when considering the use of polygraph examinations under the EPPA.

Virginia State Polygraph Protections

Virginia provides additional protections for employees who submit to polygraph examinations. One major restriction bars questions about an applicant’s prior sexual activities. The 1977 Virginia law, in Va. Code Ann.§ 40.1-51.4:3, prohibits the use of certain questions during polygraph tests for employment, as follows:

“No employer shall, as a condition of employment, require a prospective employee to answer questions in a polygraph test concerning the prospective employee’s sexual activities unless such sexual activity of the prospective employee has resulted in a conviction of a violation of the criminal laws of this Commonwealth.

Any written record of the results of a polygraph examination given to a prospective employee by an employer shall be destroyed or maintained on a confidential basis by the employer giving the examination and shall be open to inspection only upon agreement of the employee tested. Violation of this section shall constitute a Class 1 misdemeanor.”

(more…)

by ARLnow.com Sponsor November 20, 2017 at 12:45 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

When an employee has been accused of engaging in workplace misconduct, the employer will sometimes conduct an administrative or internal investigation to determine the validity of such claims and also what actions, if any, must be taken against the employee.

Reasons for Employment Investigations

The purpose of an investigation is for the employer to gather relevant evidence regarding the employee’s alleged misconduct and determine whether the misconduct warrants a disciplinary or an adverse action (e.g., termination, demotion or significant suspension) within the requirements established by law, policy or regulation.

While less likely, sometimes an investigation can lead to a potential criminal investigation. Depending on the federal, state, local agency or private employer involved, a supervisor or other designated investigator may be asked to conduct an investigation regarding the facts at issue. Employees may then be asked to provide verbal or written responses to questions regarding the alleged misconduct.

Employee Participation in Interviews

Employees, depending on their particular employer, may have a duty to fully cooperate with the assigned investigator or can decline to participate in the investigation unless they are ordered to do so. For example, federal employees may decline to participate in an administrative investigation if it is voluntary. Private sector employers have different rules. Refusing to cooperate with an investigation or providing false statements or answers during an investigation can sometimes be grounds for disciplinary action.

Additionally, providing false statements, if made to a federal or other law enforcement investigator, can also subject an employee to potential criminal penalties. Internal or administrative investigations can also involve risks for the employer. Inadequate employer investigations may raise questions about the accuracy of the results or whether the employee was treated fairly. In addition, the employer may not like what the investigation uncovers and will have an obligation to resolve or address issues, such as a systemic problem or legal impropriety.

When to Seek Legal Advice

If a matter under investigation is serious, it is generally important to seek legal advice. Prior to an employee providing information to an employer, it is helpful for an employee to discuss with an attorney the issues associated with the information being sought by the employer and the employee’s role in the matter being investigated.

An attorney familiar with administrative or internal investigations can provide legal advice to assist an employee in preparation for responding to questions about his or her actions in the matter being investigated. In addition, an attorney can often accompany the employee during any investigative interviews.

Our law firm represents and advises employees on employment-related matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

by ARLnow.com Sponsor November 6, 2017 at 1:45 pm 0

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry

In a Memorandum Opinion dated October 30, 2017, the U.S. District Court for the District of Columbia barred the president from moving forward with his plan to ban transgender individuals from the military. The ban resulted from a July 26, 2017, statement from the president via Twitter informing the public of his intent to enact a ban. A Presidential Memorandum was formally issued on August 25, 2017. The court held that there was no support for the claim that the ongoing service of transgender people would affect the military at all.

Specifically, the court’s order bars enforcement of two important provisions in the Presidential Memorandum, which:

  • Prohibited the military from accepting additional transgender individuals into active service; and
  • Required the military to discharge current transgender service members by no later than March 23, 2018.

U.S. District Judge Colleen Kollar-Kotelly of the U.S. District Court of the District of Columbia issued the preliminary injunction, finding that a group of transgender service members would have a strong chance of prevailing in their lawsuit against the president in having the ban declared unconstitutional. The injunction will remain in place until the lawsuit is resolved or a judge or court of appeals removes it.

The Trump Administration would likely have to appeal all the way to the U.S. Supreme Court in order to attempt to enforce the new ban. Judge Kollar-Kotelly’s 76-page opinion can be found here.

If you need assistance with an employment law issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook.

by ARLnow.com Sponsor October 23, 2017 at 2:15 pm 0

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kimberly H. Berry

An interesting question that has arisen recently is whether Virginia employers can use non-compete agreements with independent contractors. The answer is not entirely clear. There are many potential pitfalls for both the independent contractors that sign such agreements and the employers that attempt to enforce them.

The Problems with Non-Compete Agreements for Independent Contractors        

One of the main problems with requiring independent contractors to sign non-compete agreements is that independent contractors are different types of workers. An independent contractor is essentially its own business. Generally, an employer cannot compel an independent contractor, which is a separate business, to forfeit his or her business simply because it gave the independent contractor business.

Independent contractors may appear similar to employees (and many employers cross the line in terms of who they think they can classify as an independent contractor), but there are different loyalties and duties. For the most part, the more that an individual becomes a part of an employer’s business or organization, such as through signing non-compete agreements and assuming duties of loyalty, the more likely that the individual can be classified an employee.

Suppose that an independent contractor is paid and taxed as an independent contractor, and then the employer has the independent contractor sign a non-compete agreement. The very existence of such an agreement arguably initiates a shift of the contractor’s status from that of an independent contractor to a misclassified employee who owes a duty of loyalty to the employer. If the independent contractor has been misclassified by the employer, then the employer may risk having an unenforceable non-compete agreement, and potentially subjects itself to serious tax, overtime and government fine issues as a result of not paying the worker properly.

The legal issues and determinations associated with non-compete agreements for independent contractors in Virginia are in the very early stages and cannot be fully predicted. Given the large amount of government contractors in Northern Virginia alone, it appears that this issue will be further litigated.

Despite the relative uncertainty, an employer can easily run afoul of Department of Labor (DOL) and Internal Revenue Service (IRS) guidelines regarding misclassification, and end up owing significant sums to the government as well as the misclassified employee following enforcement efforts related to a non-compete agreement.

To date, there are a few interesting Virginia cases on the topic, including the case of Reading & Language Learning Ctr. v. Sturgill, 94 Va. Cir. 94, Case No. CL-2015-10699 (Fairfax County Aug. 4, 2016). The Reading case involved an individual (Sturgill) who was training to be a speech therapist, but needed a clinical fellowship to obtain certification. (more…)

by ARLnow.com Sponsor October 9, 2017 at 3:00 pm 0

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kimberly H. Berry

It can be very difficult for an employee to be called into a supervisor’s office or to the human resources office unexpectedly and be informed that his/her employment has been terminated. Following the notice of termination, usually the employee is escorted out of the building and is faced with a sense of shock and loss.

It is important to know that termination proceedings in Virginia are at will, which generally leaves significant discretion to employers in decisions to hire and fire employees.

However, if the employer has violated a state or federal law in terminating the employee (e.g., discrimination, whistleblowing, retaliation), the termination can be considered wrongful and potential avenues to challenge the termination may be available.

One step that a Virginia employee can do following an involuntary termination is to make an appointment with a Virginia employment attorney to review the issues related to the termination action in order to determine whether it can be considered a wrongful termination.

An attorney can also help evaluate what steps may be taken to minimize the career damage that has just occurred and whether the action taken may be appealable.

Employees often have more options following a termination action than is apparent to them on the day of termination. The employer may have broken federal or Virginia laws with respect to the termination action.

If so, then it may be possible to negotiate a resolution, such as through a separation or severance agreement, on behalf of the employee with the employer. This generally happens when the employee retains an attorney to contact the employer about the inappropriate nature of the employee’s termination in violation of applicable employment laws.

Following an employee’s termination, many Virginia employees ask our firm whether they should also apply for unemployment compensation. The answer as to whether an employee should apply for unemployment compensation depends on the factual circumstances of the termination.

Even if an employer terminates an employee in Virginia for alleged misconduct, the employee may still be able to seek and obtain unemployment compensation.

In addition, in Virginia the employer has the burden of proof if they want to argue that the employee was terminated for misconduct. The employer essentially has to prove that the employee violated a significant company rule (and it usually must be a clear rule).

In addition, it is often the case that an employee, through wrongful discharge negotiations, may obtain a resolution where the employer agrees not to contest unemployment.

Finally, an employee should keep in mind that if the employee is terminated for poor performance, as opposed to misconduct, unemployment compensation is generally granted. However, any separation or severance compensation received by the employee will typically delay receipt of unemployment compensation.

(more…)

by ARLnow.com Sponsor September 25, 2017 at 2:45 pm 0

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Many federal employees and government contractors are required to apply for and maintain security clearances. In some cases, the security clearance application process is straightforward. However, if problems arise, they are typically discovered when the employee or contractor is about to complete his or her security clearance application through e-QIP or the government’s Standard Form 86.

If possible, you should seek the advice of an experienced attorney who handles security clearance matters since each case is different. The following are some general guidelines:

Take Time and Answer Security Clearance Forms Carefully

This is one of the most important tips. Individuals often receive clearance denials because they did not adequately read the questions asked or proofread their responses on the e-QIP/SF-86 application prior to submission.

In some cases, if an individual does not take the time to read the question and answers “no,” when they should have answered “yes,” to a question, a clearance investigator might conclude that the individual was attempting to be dishonest. This is important to understand as such an oversight can be very detrimental to obtaining or keeping a security clearance. Therefore, it is very important to carefully complete the security clearance application before submitting it.

Be Honest

This recommendation cannot be overstated. Individuals should be honest in all aspects of the clearance process. When an individual is dishonest during the clearance process, it could not only potentially bar the individual from receiving a security clearance, which would remain on his or her clearance record, but it could also raise a host of other legal issues, including potential criminal issues.

It is much easier for a security clearance attorney to mitigate security clearance concerns involving financial, prior drug or alcohol usage issues than defend against an allegation involving dishonesty in the clearance application or interview process. An applicant should consult with a security clearance attorney for legal advice if there are any possible criminal disclosures or issues.

Review Documents in Advance

Take the necessary time to gather and review relevant documents related to any potential security clearance problem in advance. Taking this step will help an individual in two ways: (a) it will help an individual remember all the details of the potential security concern, such as an arrest or bankruptcy filing that occurred three years ago, in preparation for answering questions; and (b) the documentation may help to mitigate the security concerns later, if necessary.

Prepare for the Investigative Interview

If an individual believes that there is a good chance that problem areas exist in a security clearance application, he or she should expect to be asked about these areas by the assigned investigator. The investigative interview can vary in duration from an hour to several hours depending on whether significant security concerns exist.

Early preparation for the security clearance interview can help minimize any problem areas. Unfortunately, many individuals go into the interviews without thinking about or preparing for the issues that could arise and often provide incomplete information. Interview preparation can also help the individual’s confidence when meeting with the investigator to explain application responses that raise any security concerns. (more…)

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