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Legal Insider: New Virginia Legislation Introduced Regarding Workplace Violence

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.

The new proposed law requires the employee or applicant to prove by clear and convincing evidence that any false comments were known to be false or made with reckless disregard. A better route would be to lower this standard due to former supervisors or employers who make it difficult for a former employee to get a job by making false statements about him or her.

Something should be done to help alleviate workplace violence, but the proposed legislation may not be enough to ensure the protection of employees given that an employer could potentially pass false information against a former employee that could cause him or her to not get hired.

Our law firm represents and advises employees on employment-related matters in the District of Columbia, Maryland 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.

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Legal Insider: Responding to Workplace Investigations

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.

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Legal Insider: Employee Advice for Handling a Termination

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.

It may seem like the end of the world when one is terminated, but in the vast majority of employment cases that we see individuals bounce back and obtain new employment relatively soon. Many of our former clients contact us a year or so after being terminated and tell us that they are in a better place of employment and are much happier. The odds of this happening will increase when a termination is handled with grace.

We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. 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 visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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Legal Insider: It’s Time to Reform the Congressional Accountability Act

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.

Furthermore, Congress fully funds its legal defense counsel. For instance, there have been cases where as many as three congressional attorneys have been assigned to one case. As a result, there is often no way that a congressional staffer can usually afford to fund adequate legal representation in which to prevail on his or her regular salary.

One of the most important fixes for the CAA would be for Congress to be held accountable for funds used to pay for inside and outside counsel to defend against these cases. An even better fix would be for Members of Congress and other congressional employers to be held accountable for their legal fees in defense from their own funds or budgets. If congressional employers had to pay for their own legal fees, they may start to resolve and address sexual harassment complaints earlier and remediate problems.

  1. Members of Congress have a private fund to pay settlements and judgments.

The CAA pays not only for congressional attorneys’ fees but also for settlements or judgments. In other words, a Member of Congress or other congressional employer can engage in egregious behavior and not have to pay for the consequences of their actions. Currently, Congress sets aside a private account to pay for these costs from a special Treasury Department fund created by the CAA. Members of Congress and congressional employers should have to pay these costs through their own funds. This, more than anything, might deter their egregious behavior.

Proposed Changes to the CAA 

New changes to the CAA have been proposed. One Congressman has proposed making congressional employers responsible for claims. Another Congressman has proposed exposing the settlements made under the CAA and requiring Members of Congress to pay back the Treasury. The bottom line is that Congress needs to do more than simply require sexual harassment training. It needs to make the CAA and the Office of Compliance function more like the Equal Employment Opportunity Commission and provide better and more efficient access to putting an end to unlawful sexual harassment and discrimination.

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.

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Legal Insider: Polygraph Examinations in Virginia

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.”

The law is rarely reviewed by the courts in Virginia, but has been approved. Denzler v. Henrico Cty Sch. Bd., 27 Va. Cir. 486, 488 (Henrico Cty. Aug 1984). As noted above, employers have a duty to keep the results of these tests confidential. §40.1-51.4:3. Violation of Virginia’s polygraph law, specifically regarding the types of questions asked and confidentiality, is a misdemeanor with a penalty of no more than twelve months in jail and/or a $2,500 fine.

If you need assistance with issues related to polygraph examinations in the workplace or other employment law issues, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on our Facebook page.

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Legal Insider: Administrative Investigations by Employers

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.

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Legal Insider: D.C. Federal Court Bars Transgender Military Service Member Ban

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.

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Legal Insider: Be Wary of Non-Compete Agreements for Independent Contractors in Virginia

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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.

Sturgill signed an agreement with Reading to work as an independent contractor for one year to obtain her license. In the agreement, Sturgill agreed “not to employ any contracted employee or contract with any current client of the other for a period of two years.” The language of the agreement was found to be confusing by the court.

Sturgill obtained her certification and left for full-time employment with a local charter school as a speech therapist. The local charter school had used Reading for some subcontracting work in the past. Reading then sued Sturgill in Fairfax County, claiming that she had breached her non-compete agreement by accepting employment at the charter school. Sturgill prevailed in her case on several grounds.

Interestingly, because Sturgill was still pending licensing, she was directly supervised by Reading personnel (since it had approved her schedule), and her supervisors had provided final approval on many issues associated with her work. As a result, the Reading court found that Sturgill was not an independent contractor and had been misclassified.

The court determined that Sturgill was really an employee and, as a result, the non-compete agreement violated public policy. Specifically, the court found that because Sturgill was misclassified, Reading had not complied with Virginia and federal laws regarding employment taxation. In other words, the employer should have refrained from filing suit as doing so subjected it to other legal and tax issues. The case does not appear to have been appealed, so it is likely that the employer realized the mounting issues and walked away.

The Misclassified Employee Can Seek Damages

If an individual makes a claim that he or she was a misclassified employee, the individual can seek losses related to taxes and overtime. The DOL and other organizations can then seek fines and other penalties regarding the misclassification. The DOL has issued guidance on misclassification. Again, if the individual was a misclassified employee, then the employer might very well be liable for multiple tax issues and payments, in addition to other potential overtime payments and damages.

If you need assistance with non-compete or other employment law issues, 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 at www.facebook.com/BerryBerryPllc.

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Legal Insider: Wrongful Termination in Virginia

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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.

So, while a lot depends on unique factual circumstances in each case, and each case should be discussed with an attorney, it may very well be worth it to consider filing for unemployment compensation in Virginia even if the employer has alleged misconduct or egregious performance issues in the termination.

While our firm principally represents employees in wrongful termination proceedings (as opposed to representing employees in the actual unemployment compensation hearings), we often advise them on issues involving their unemployment compensation matters and factor these issues into separation or severance negotiations as they can relate to their wrongful termination cases and factor these issues into separation and severance agreement negotiations.

When facing wrongful termination issues in Virginia it can be helpful and important to obtain the advice from and representation of an attorney.

Our law firm advises and represents individuals in wrongful termination matters, including separation and severance agreement matters, in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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Legal Insider: Security Clearance Process Tips

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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.

Don‘t React Defensively to Security Clearance Questions

Refrain from reacting defensively when asked by an investigator about potential security concerns in a security clearance application. It is important to be calm and positive about the issues when speaking to an investigator. In addition, arguing with an investigator will never benefit an individual since the investigator can have significant influence over the application process in the initial stages.

Be Courteous and Professional With the Investigator

It is important for all applicants to treat the investigator with professionalism. If an investigator attempts to contact you, be timely and courteous in your response. Even if it is inconvenient to meet or return calls, not doing so could be detrimental. Promptly responding to the investigator can give the investigator a positive impression, especially if the investigator will be providing a recommendation regarding your ability to obtain or retain a clearance.

Be Patient During the Security Clearance Process

It is important to understand that the security clearance process can often take a few months to complete depending upon a number of other factors, including: (a) whether the individual is a federal employee or government contractor; (b) the number or significance of the security concerns; (c) delays in obtaining responses from federal agencies in seeking an investigative file; (d) the general investigative backlog; and (e) the specific employer involved.

There are a multitude of other considerations that can also delay adjudication so it is important to remain patient during the investigation.

If you need assistance with a security clearance 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 at www.facebook.com/BerryBerryPllc.

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Legal Insider: Leave for Virginia Employees

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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

We thought it might be helpful to provide information on leave laws and rules that cover Virginia employees. Leave issues always come up either during the course of an employee’s employment or immediately following the end of employment.

Leave laws and regulations also vary by the type of employer. For instance, federal, state, county and private sector employers have different laws and rules governing leave. Virginia has not codified many areas of employee leave as of yet, but that may be changing as other states enact improvements.

Virginia is one of those states where most forms of employee leave are not mandatory, but I suspect that may change in the future as Northern Virginia grows larger with more employers.

Some jurisdictions, like the District of Columbia have moved towards expanded paid leave. Fortunately for most Virginia employees, many forms of leave, while not mandatory are typically provided by employers in order for them to remain competitive in retaining employees. I will go through each form of leave in Virginia below:

Vacation Leave/Annual Leave

In Virginia, private sector employers are not required by law to provide employees with vacation/annual leave, either in a paid or unpaid status. This is different for federal, state and county employees in Virginia.

For instance, federal employees accrue a certain amount of annual or vacation leave each pay period and can then use this leave for vacation or taking days off.  When a federal employee leaves the federal government, they are paid out for the remaining balance of annual leave.

While payout of accrued vacation or annual leave has not been mandated for private sector employers, if it is pursuant to a consistent company practice or policy, the employer in Virginia may be required to pay such leave out to departing employees.

Sick Leave

In Virginia, there is also no state requirement that employers provide employees with sick leave benefits. Virginia is different in this respect when compared to many other states.

However, if an employer chooses to provide sick leave to employees, it must follow the established policy. There are some other notes on sick leave.

First, federal, state and county employees are generally given sick leave in increments. Furthermore, under federal law, private sector employees of larger Virginia companies (more than 50 employees) are entitled to sick leave when given under the Family Medical Leave Act (FMLA).

Under the FMLA, private sector employees in Virginia may take up to 12 weeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies. This type of leave renews every 12 months as long as the employee continues to meet the eligibility requirements set out above.

Employees may also take up to 26 weeks of leave in a single 12-month period to care for a family member who was injured on active military duty.

Administrative Leave

While there is no entitlement to administrative leave for employees in Virginia, it can and is often granted. Typically, this type of leave is granted for reasons related to misconduct or equal employment opportunity investigations or other miscellaneous issues that arise. Federal, state and county employees have their own unique policies for administrative leave, which vary.

Holiday Leave

Additionally, the Commonwealth of Virginia does not require private employers to provide employees with either paid or unpaid holiday leave. Additionally, a Virginia employer does not have to pay an employee premium or enhanced pay for working on a holiday.

Again, different standards apply for federal, county and state employees, depending on position (.e.g. law enforcement), who may receive holiday pay for their work and/or premium pays.

Voter Leave

In Virginia, an employer is not required to give leave for an employee to vote. However, Virginia does require an employer to accommodate an employee who has been appointed as an election official. Some federal and other public employees have policies of permitting some administrative leave for voting where necessary.

Jury Duty Leave

In Virginia, an employer is not required to provide leave for jury duty, but cannot discharge or retaliate against the employee if they have given reasonable notice to their employer.

Additionally, an employer may not charge a private sector employee vacation or annual leave for jury duty service. An employer that violates these provisions is guilty of a misdemeanor (VA Code. §18.2-465.1).

If you need assistance with an employment 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.

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Legal Insider: Sexual Orientation Discrimination – Dueling Government Positions

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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

In an unusual departure from the previous administration, the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) are taking opposing positions on sexual orientation discrimination in a case that is currently pending before the U.S. Court of Appeals for the Second Circuit.

In Zarda v. Altitude Express (Case No. 15-3775), Donald Zarda, who was a skydiving instructor, was terminated by his employer after he disclosed his sexual orientation to a female customer, who then complained that he had done so. The allegation in the underlying lawsuit was that the employer did not punish other instructors who openly discussed their heterosexual orientation with customers.

At issue is whether sexual orientation discrimination is discrimination based on sex. Basically, the semantics are being argued. Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” From the statute, the two conflicting government positions have emerged.

Dueling Government Legal Positions

Although the DOJ and EEOC are not parties in the case, both have filed legal briefs on the issue of whether sexual orientation discrimination is prohibited in the workplace.

The DOJ Legal Argument

The DOJ filed a brief arguing that it was not illegal to fire an employee based on his or her sexual orientation under federal law. The DOJ’s argument, from its brief, can be summarized as follows: “The term “sex” is not defined in Title VII, but in common, ordinary usage in 1964–and now, for that matter–the word ‘sex’ means biologically male or female. As for the term “discrimination,” the Supreme Court has held that Title VII requires a showing that an employer has treated “similarly situated employees” of different sexes unequally. Title VII does not proscribe discrimination because of sexual orientation because the term ‘sex’ in Title VII refers only to membership in a class delineated by gender.”

The EEOC Legal Argument

The EEOC filed their brief arguing that the Civil Rights Act of 1964 protected workers from sexual orientation discrimination. The EEOC’s position can be summarized as follows: “In passing Title VII, Congress made the “simple but momentous announcement” that sex, like other protected characteristics, is “not relevant” to employment decisions; thus in making such decisions, employers “may not take gender into account.” . . . Sexual orientation discrimination requires the employer to take the employee’s sex into account. In short, an employer cannot discriminate against an employee based on that employee’s sexual orientation without taking the employee’s sex into account– precisely what Title VII forbids.”

Where these Dueling Government Positions Leave the Public

As a result of the Zarda case, the DOJ and the EEOC are essentially opposing each other’s legal position on sexual orientation discrimination in the same case. The DOJ is not a party to the case, which is why it is significant that it chose to interject itself into this debate. The U.S. Court of Appeals for the Second Circuit will decide whose legal position is right.

For now, individuals with sexual orientation discrimination claims should pursue them as usual either through the EEOC or in the courts. The EEOC position is settled law for federal employees. The DOJ’s new position will not likely have an effect, if at all, until the courts finish ruling on the issue. A decision may ultimately be made by the U.S. Supreme Court as to whether individuals are protected from sexual orientation discrimination. Regardless of politics, it is this author’s opinion that it is very likely that the EEOC’s position will ultimately prevail. The next step in the Zarda case is for the DOJ, the EEOC, the plaintiff, the defendant, and the Lambda Legal Defense Fund to make oral arguments in New York City, NY, on September 26, 2017.

If you need assistance with an employment 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 at www.facebook.com/BerryBerryPllc.

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Legal Insider: Does the First Amendment Protect Hate Speech and Your Job?

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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

In the wake of the tragic events this past weekend in Charlottesville, a number of the white supremacists protesting have been identified and outed by social media and then subsequently fired from their employment.

One issue that has arisen is the argument that these individuals have a First Amendment right to speak their minds, however wrong they may be, and to not suffer negative consequences. That is not true. The First Amendment offers almost zero protection for individuals who engage in hate or other inappropriate speech who are then fired from private sector employment.

There are very limited forms of protection for federal and public sector employees under the First Amendment only because the government implements employment actions. Generally, a government employee must be engaging in speech that is considered a matter of public concern to receive some protection.

That protection can be taken away if it interferes with the function of a government agency. In our experience, a public sector employer might need to take additional steps but can usually find ways to fire a public employee for engaging in hate speech.

In sum, not much has changed since the 1892 case McAuliffe v. Mayor of New Bedford in the Supreme Court of Massachusetts when Justice Holmes, in a famous quote involving the termination of a police officer for engaging in politics, stated: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” 

First Amendment

The First Amendment provides the following rights:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The First Amendment protects private individuals from government suppression of free speech, but not from other private individuals and/or companies who take action as a result of speech.  For instance, there is no First Amendment issue with social media companies selectively banning users from their platform based on their speech.  There could be a First Amendment issue if a government entity made a similar type of decision based on speech.

State Laws

Some states, but not Virginia, have offered state legislation that protects employees from being terminated for legal, off-duty speech that does not conflict with the employer’s business-related interests.

States of note that offer this minimal protection include California, New York, Colorado, North Dakota and Montana.  Even under these laws, it would be relatively easy for an employer to establish that off-duty hate speech interferes with an employer’s business interests (e.g., boycotts). In short, there is no true legal protection for hate speech for private employees in these states.

Recent Issues Relating to the Charlottesville Tragedy

These issues have arisen principally as a result of the identification of far-right protesters by various social media groups that have identified hate-speech protesters and then contacted their employers, schools, and friends.

The principal group that has engaged in this tactic is the Twitter account, YesYoureRacist. The group has apparently had success in convincing employers to terminate employees based on their participation in the Charlottesville protest.

Obviously, employers would much rather terminate an employee involved in free speech than face the consequences of a boycott. Can they do so?  Yes, they can. Why? Because the First Amendment protects the right of people engaging in hate speech, but it also protects their employers who do not wish to be associated with them.

As such, First Amendment rights go both ways. Free speech protects the ability of citizens to speak and engage in other forms of hate speech without the government banning it.  However, it does not protect individuals who engage in hate speech from the consequences of their actions.  In other words, there should be no misconception that the Constitution provides a First Amendment right to engage in hate speech and not suffer the potential consequences of being fired for that very speech.

If you need assistance with an employment 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 at www.facebook.com/BerryBerryPllc.

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Legal Insider: New Thrift Savings Plan Options for Federal Employees

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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

The Thrift Savings Plan is a retirement savings and investment plan for federal employees and members of the uniformed services. It was established by Congress in 1986 as part of the Federal Employees’ Retirement Systems Act. The TSP offers the same types of savings and tax benefits that a 401(k) plan offers to private sector employees.

In April 2017, on the TSP’s 30-year anniversary, a bill was offered by Sens. Rob Portman (R-Ohio) and Thomas R. Carper (D-Del) to bring the TSP’s terms more up-to-date with similar programs. Specifically, the legislation seeks to expand investment and withdrawal options.

Last week, the Washington Post published a helpful Q&A that provided more details regarding the TSP’s new investment options. For instance, one of the TSP’s five funds, tracking international stocks, will be broadened in 2019 to include emerging markets and Canada. The TSP is also working towards allowing account holders to invest in funds outside of what’s currently offered.

Additional bills pending before Congress also allow for more withdrawal options post-retirement, including for federal workers and servicemen and women still employed and at least 59 1/2 years of age. Since current withdrawal options are limited, it is hopeful that these changes will allow participants more flexibility and freedom regarding their retirement savings.

Most TSP issues that we handle in our federal retirement practice involve withdrawal guidelines and requirements, including issues involving federal retirees who are divorced and ordered to divide their retirement benefits, including TSP benefits, with a former spouse.

In addition, federal employees and uniformed servicemen and women leaving employment for retirement or other reasons may keep TSP accounts open. However, they cannot add to their TSP accounts post-retirement or separation, but TSP monies can be transferred to an IRA or other tax-favored plans.

The transfer rules, including deadlines, can often be complicated and difficult to understand, but we hope that the legislation allowing for additional investment and withdrawal options will help bring more financial stability as well as a better understanding of the rules involving federal retirement plans.

If you need assistance with a federal employment, federal retirement or TSP 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 at www.facebook.com/BerryBerryPllc.

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Legal Insider: Federal Hiring Freeze – The Latest Update

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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

Many of our clients who are federal employees have been facing difficulties as a result of the hiring freeze enacted by President Donald Trump in January. While the initial hiring freeze has been rescinded in part, there are many restrictions still in place.

These restrictions have affected our federal employment practice since we often argue for or resolve cases involving changes, transfers, desk audits and promotions. This article covers the latest on the federal employee hiring freeze and where it presently stands.

Background

The federal hiring freeze began on January 23, shortly after the inauguration of the President, and covered most hiring actions for federal employees. This had the unfortunate result of causing many federal employees to take on additional jobs that were previously handled by other employees who had left but with no increase in compensation.

In many federal agencies, it appears that federal employees are unable to perform their basic work functions given the lack of staffing. The ban was eventually lifted, for the most part, on April 12. Additionally, there has also been a lack of staffing at the appointee levels as the current administration has only appointed one-third of the amount of appointees that the previous administration had in place at the same point in time.

Where We Are Now

While the original federal hiring freeze has been lifted for most agencies, some individual agencies have decided to leave the ban in place in order to reduce their number of employees. The somewhat understated goal is to reduce the size of the federal workplace.

For example, despite the lifting of the ban, the Environmental Protection Agency and Department of State currently still have varying restrictions on hiring new personnel as of right now. Other agencies have not openly continued the hiring freeze but have only been hiring on a limited basis.

In addition, since the lifting of the initial freeze, guidance has been issued intending to restrict hiring of federal employees. Other agencies, like the Department of Defense that lifted the hiring freeze, issued requirements that hiring officials comply with the intent of the Office of Management and Budget’s memorandum of April 12, which focuses on reducing the numbers of employees for agencies.

In getting back to normal following the freeze, there has also been a significant backlog of background and clearance investigations from dozens of federal departments that need employees. This will slow down the on-boarding process for these employees.

We suspect that hiring will eventually increase and the policies will be liberalized somewhat, because even agencies looking to reduce their size and scope have to perform basic functions.

We have run across a number of federal supervisors and other employees who have become overburdened to the point that they may leave federal government altogether because they have no assistance and are performing multiple jobs.  This will eventually lead to increased hiring.

It will also likely take a year in order for the federal government to get back to where it was in staffing and productivity before the change in administrations and the enactment of the hiring freeze.

If you need assistance with a federal employment 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 at www.facebook.com/BerryBerryPllc.

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