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by ARLnow.com Sponsor December 5, 2016 at 3:50 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.

When an individual is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized more thoroughly. 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 his or her 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 clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.”

Clearance Upgrade Issues

One common problem with security clearance upgrades is when an employer submits an individual’s information to a different security clearance agency or to the same agency for the purpose of upgrading 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. An individual can be approved for a lower level security clearance, but he or she can be denied when submitting for a security clearance upgrade even if there are no new security concerns.

For example, suppose an individual is approved for a Top Secret security clearance by the Department of Defense, after mitigating some security concerns about past due debts or bad credit, but is then submitted for SCI access at an intelligence agency. The intelligence agency may consider those debts more serious than at the previous approval for Top Secret, and then 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 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, 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 security clearance 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 at www.facebook.com/BerryBerryPllc.

by ARLnow.com Sponsor November 21, 2016 at 2:30 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 Berry

Most employees in Virginia are considered “at will,” which means they can resign and/or be terminated at any time. When employment ends, an employer may offer a severance package to an employee in exchange for the employee’s waiver of rights. However, employers in the absence of an agreement or severance policy, generally have no obligation to provide employees severance pay. If severance pay is offered, an employer will offer the employee a Severance Agreement.

A Severance Agreement is a contract between the employee and an employer that provides the terms of the end of employment between the employer and the employee. Severance Agreements may also be offered to employees who are laid off or facing retirement. In addition, depending on the circumstances, a Severance Agreement may be offered to an employee who resigns or is terminated. The Severance Agreement must have something of value (also referred to as consideration) to which the employee is not already entitled.

Employers are generally required to provide an employee time to consider the Severance Agreement before signing. An employee typically has a 21-day consideration period to accept and at least a 7-day revocation period to revoke an employer’s Severance Agreement if the employee is over 40 years of age. For a group or class of employees (i.e., two or more employees) age 40 or over, employers must provide a 45-day consideration period and at least a 7-day revocation period.

Items and/or terms that the employer and employee may place in these agreements include:

  • Financial terms, tax issues and timing of severance payments
  • Continuation of employment benefits (i.e. health, etc.)
  • Issues related to unemployment compensation
  • References
  • Claims to be waived (i.e. discrimination, etc.)
  • Confidentiality
  • Non-Disparagement
  • Re-employment possibilities
  • Scope of possible non-competition
  • Preservation of trade secrets
  • Recommendation letters
  • Consequences of violating the agreement
  • The state law governing the agreement

Severance Agreements will usually include a general release or waiver that requires that the employee cannot sue his or her employer for wrongful termination or attempt to seek unemployment benefits upon the effective date of a fully executed Severance Agreement. Before an employee signs a Severance Agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the Severance Agreement.

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 November 7, 2016 at 3:45 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 Kimberly Berry

The White House recently asked states to enact legislation banning non-compete agreements for low-wage workers in an effort to increase competition and improve the economy. In a White House report issued on October 25, 2016, it explained that these types of agreements often prevent out-of-work employees from finding new jobs in their career fields. The White House also stated that these non-compete agreements interfere with worker mobility.

A non-compete agreement typically bars an employee from working for a competitor or starting his or her own business once the employee leaves the employer.

The White House report cited the fact that 20 percent of U.S. workers have signed non-compete agreements preventing them from working for competitors. The figure included an approximate 17 percent of employees who do not hold a college degree. As such, the White House is requesting that states pass bans on non-compete agreements for workers who do not possess trade secrets. Additionally, the White House is asking that states require companies to be more transparent about contracts.

The three principal recommendations in the White House report on state changes to non-compete agreements include:

  1. Enact State Bans on Non-Compete Clauses for Certain Categories of Workers: (1) workers under a certain wage threshold; (2) workers in certain occupations involving public health and safety; (3) workers who are unlikely to possess trade secrets; or (4) those who may suffer undue adverse impacts from non-competes, such as workers laid off or terminated without cause.
  2. Improvement in Transparency and Fairness: of non-compete agreements by, for example, disallowing non-competes unless they are proposed before a job offer or significant promotion has been accepted (because an applicant who has accepted an offer and declined other positions may have less bargaining power); providing consideration over and above continued employment for workers who sign non-compete agreements; or encouraging employers to better inform workers about the law in their state and the existence of non-competes in contracts and how they work.
  3. Give Incentives to Employers: to write enforceable contracts, and encourage the elimination of unenforceable provisions by, for example, promoting the use of the “red pencil doctrine,” which renders contracts with unenforceable provisions void in their entirety.

These proposed changes are hopefully raising more awareness regarding the issue of arbitrary and meaningless overuse of certain non-compete agreements. Unfortunately, it is not uncommon to see lower wage-earning employees being forced to sign unnecessary and overly restrictive non-compete agreements. However, there have been some positive developments, and three states have already enacted changes to non-compete agreements, including California, Oklahoma and North Dakota.

If you need assistance with a non-compete 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 at www.facebook.com/BerryBerryPllc.

by ARLnow.com Sponsor October 24, 2016 at 2:30 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.

What is the Hatch Act?

The Hatch Act of 1939 (Hatch Act), 5 U.S.C. §§ 7321-7326, was enacted by Congress in an attempt to keep politics out of normal government operations. The Hatch Act is a federal law that prohibits civilian federal government employees of the Executive Branch from engaging in certain political activities, such as influencing elections, participating in or managing political campaigns, holding public office or running for office as a member of a political party.

Purpose of the Hatch Act

The Hatch Act was intended to prohibit federal employees from engaging in partisan political activity that might influence normal government activities. Government authorities typically apply the Hatch Act when attempting to curtail political activities by federal employees and supervisors while on duty.

In addition, the Hatch Act can also apply to certain state, local or District of Columbia government employees whose principal employment is connected to an activity that is financed in whole or in part by federal loans or grants. The Hatch Act was amended through the Hatch Act Modernization Act of 2012 (HAMA) to permit other state and local employees, even if they are otherwise covered by Hatch Act restrictions, to be generally free under federal law to run for partisan political office unless the employee’s salary is paid completely by federal loans or grants. HAMA was signed into law in December 2012. The most recent changes to the law are outlined in the OSC guidance on HAMA.

Who Enforces the Hatch Act?

The Office of Special Counsel (OSC) is typically the entity charged with investigating Hatch Act violations. First, a Hatch Act complaint is filed at the OSC. If a Hatch Act violation is found, but not egregious enough to warrant prosecution, the OSC may issue a letter of warning to the involved employee. If the OSC charges an employee with a Hatch Act violation, the charges are filed with and adjudicated before the Merit Systems Protection Board (MSPB). In addition, after investigating an alleged Hatch Act violation, the OSC may seek disciplinary action against an employee before the MSPB. The penalties for federal government employees can include removal from federal service, reduction in grade, debarment from federal employment for a period not to exceed five years, suspension, reprimand or a civil penalty not to exceed $1,000.

Our law firm represents and defends federal employees who are faced with alleged Hatch Act violations, require Hatch Act guidance or legal defense, or are subjected to illegal political discrimination in the federal workplace. If you need assistance with an alleged Hatch Act violation, political discrimination, 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 at www.facebook.com/BerryBerryPllc.

by ARLnow.com Sponsor October 10, 2016 at 2:30 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 Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry, Esq.

We often represent federal employees in federal agency misconduct investigations. The types of misconduct that a federal agency can investigate are too numerous to list here, but some of the most common types of misconduct involve:

  • Time card and attendance issues
  • Misuse of government computer and internet
  • Misuse of government credit card, vehicle or travel card
  • Allegations of discrimination or harassment
  • Alleged dishonesty or lack of candor
  • Allegations of off-duty criminal or traffic conduct
  • Inappropriate promotions and selections cases

The Investigation Process

The usual process for a federal employee misconduct investigation begins when a federal employee is notified that an investigator needs to speak with the employee. The alleged misconduct can be investigated by several types of investigators. The investigator can be a supervisor, someone from human resources, an agency investigator, an Inspector General agent, or another type of agency official or representative. There is usually short notice for the investigation and the investigator generally will want to conduct the interview fairly soon. Furthermore, the federal employee is usually never provided an explanation of his or her rights.

In many, if not most cases, the interviewer immediately starts asking questions and expects answers to his or her questions without providing a statement of rights. In some cases, the interviewer may ask that the federal employee sign a statement agreeing to be voluntarily interviewed (often referred to as a Garrity warning) and waiving all of the employee’s rights. In other cases, the federal employee may be asked to sign a Kalkines warning requiring that the employee acknowledge that he or she is being ordered to speak to investigators under penalty of disciplinary action.

While circumstances vary, it is usually preferable for a federal employee to be ordered to provide a statement as some protections may attach, versus providing a voluntary statement where there are no protections. Federal agencies generally prefer that voluntary statements be given. In cases where a federal employee is not ordered to provide a statement, but voluntarily provides one, no protections to the employee’s statement usually apply. As a result, it is important and wise for the federal employee involved in a misconduct investigation to have legal counsel to advise the employee prior to the interview.

The Investigation Format

Generally, the most common scenario for a federal employee misconduct investigation involves the federal employee being interviewed by one or, more often, two investigators. The duration of these types of investigations vary depending on the issues under review, but generally last between one and three hours. However, we have represented federal employees during longer interviews. Following the interview, many investigators summarize the employee statement and attempt to have the employee sign it for the record.

It is important to ensure that the investigator does not insert his or her own version or characterization of the employee’s verbal statement into a final and inaccurate written statement signed by the employee. All too often a federal employee makes a statement to an investigator that is taken out of context in the written summation, which is then signed by the employee.

How to Handle the Investigation

It is very important for federal employees to treat any misconduct investigation seriously. It is also important to seek advice early because doing so can help prevent or mitigate potential subsequent disciplinary action. Furthermore, it can often help when an investigator knows that you are represented by legal counsel. In our experience, investigators tend to follow the rules regarding investigations more closely when an individual is represented by legal counsel. Additionally, should the issues involved turn potentially criminal in nature it is important to be represented before making statements about conduct which can lead to criminal issues.

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

by ARLnow.com Sponsor September 26, 2016 at 4:55 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, Esq.

We are seeing the start of what may be a nationwide trend after Massachusetts recently became the first state to ban employers from asking job applicants about their salaries during the job interview process.

The bipartisan legislation that was signed into law in early August requires an employer to state a position’s compensation upfront based on what the job applicant is worth to the employer as opposed to what the job applicant made in his or her previous employment position.

Now other legislators are working at the Congressional level, as well as at the state level, to use this law as a model to create similar legislation. On September 14, 2016, a bill was introduced in Congress by Washington, D.C. Representative Eleanor Homes Norton and Democratic Representatives Rosa DeLauro from Connecticut and Jerrold Nadler from New York. Under the Pay Equity for All Act of 2016 (H.R. 6030), an employer could be subject to a fine of up to $10,000 if it asks questions about an applicant’s salary history. Employers could also be liable to employees or prospective employees for special damages up to $10,000, in addition to attorneys’ fees.

There has already been an effort, although not entirely successful, to strengthen equal pay laws. However, there is hope that a bill prohibiting employers from asking about salary history before making a job offer will help to eliminate the wage gap that women and people of color often encounter. A news release announcing the bill indicated that while many employers may not intend to discriminate based on gender, race, or ethnicity, asking for previous salary information prior to offering employment to a job applicant can have a discriminatory effect in the workplace. Holmes Norton’s office also indicated: “Because many employers set wages based on an applicant’s previous salary, workers from historically disadvantaged groups often start out behind their white male counterparts in salary negotiations and never catch up.” Other states have created or are creating similar legislation, such as New York and California.

There is a prevailing belief that many factors should be considered when establishing a salary for a certain employment position, such as position duties and responsibilities, past experience, educational requirements, industry and market standards and practice. As such, this bill and other similar efforts aim to eliminate the wage gap and discrimination that may intentionally or unintentionally exist when an applicant’s previous salary is the sole or main method for establishing that applicant’s starting compensation.

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

by ARLnow.com Sponsor September 12, 2016 at 2:30 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 Berry

There are usually two parts to a security clearance case: (1) responding to the security concerns at issue (individual disqualifying and mitigating factors) and (2) overall mitigation. Overall mitigation is most often used when the security issues are true or partially true, but they should not bar an individual from the ability to retain or obtain a security clearance. Overall mitigation is usually referred to as the Whole-Person Concept for security clearance matters. This evaluation focuses on whether the individual, even with security concerns, is an acceptable security risk. 

Under the Whole-Person Concept, an adjudicator will evaluate an individual’s eligibility for a security clearance by considering the “totality” of his or her conduct and all relevant circumstances. There are nine factors that are reviewed based on the Department of Defense (DoD) Adjudicative Guidelines:

  1. the nature, extent, and seriousness of the conduct;
  2. the circumstances surrounding the conduct, to include knowledgeable participation;
  3. the frequency and recency of the conduct;
  4. the individual’s age and maturity at the time of the conduct;
  5. the extent to which participation is voluntary;
  6. the presence or absence of rehabilitation and other permanent behavioral changes;
  7. the motivation for the conduct;
  8. the potential for pressure, coercion, exploitation, or duress; and
  9. the likelihood of continuation or recurrence.

Under these Adjudicative Guidelines, the final determination of whether to grant eligibility for a security clearance is “an overall commonsense judgment” based on both the merits of the security issues and a review of the Whole-Person Concept. While only nine factors are mentioned here, other factors are also considered. We find that the Whole-Person Concept is often best used to describe the individual’s character, positive work history and record, community involvement and other factors that help to show that the individual’s record merits a commonsense judgment for keeping or retaining his or her security clearance. Many of these individualized issues fall under Factor 9. 

For example, an individual holds a Top Secret security clearance and has been convicted of driving under the influence of alcohol. As a result, security concerns are raised and the individual’s security clearance is at risk. In addition to addressing the issues involving the driving under the influence charge, the person would want to present evidence of good character (e.g., letters from supervisors, friends, and family), good or outstanding performance at work, and/or community/charity involvement. 

Generally, we find that clearance holders are not provided information about how to use the Whole-Person Concept to help them rebut security clearance concerns. Each case is different, but in many cases an individual seeking to retain or obtain a security clearance must go through his or her positive record in life, the community and at work in order to help mitigate security issues that arise. 

We represent individuals in security clearance matters. If you need assistance with a security clearance 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 at www.facebook.com/BerryBerryPllc.

by ARLnow.com Sponsor July 25, 2016 at 3:45 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 Berry

As noted in our earlier article, financial issues are the most common issues that can result in the loss of, or inability to obtain, a security clearance. In security clearance cases, financial issues are generally referred to as Guideline F cases. In Guideline F cases, the government’s concern is generally how a person has handled his or her finances and/or his or her vulnerability to financial manipulation given a pattern of overspending or debt.

The following are some quick tips to help minimize the risk of losing a security clearance involving financial considerations:

  1. Pay your bills.  Most security clearance clients seek our assistance when they have multiple debts that are past due, delinquent, in collections, or have been charged off. In Guideline F cases, the existence of multiple, unpaid debts is the most typical reason for the loss or denial of a security clearance.
  2. Pay/File your taxes. Individuals in tax trouble or who fail to pay and/or file their taxes risk losing their clearance. These tax issues tend to be viewed as more significant for security clearance purposes than regular debts. If outstanding taxes or tax liens are too much for the individual to pay off all at once, it is important to try to work out a plan with the IRS or state tax agency and show good faith towards resolving these debts in order to keep or obtain a security clearance.
  3. Clear up/monitor your credit report. Often times, an individual has encountered difficulties in the security clearance process because incorrect information is listed on his or her credit reports. In our experience, errors can be common, but can also lead to security clearance issues. It is important for an individual applying for or holding a security clearance to keep a close eye on his or her credit report for errors and potential problems.
  4. Do not run up significant debts or live beyond your means.  Having too many debts can put an individual at risk of losing a security clearance. To the government, this can indicate that the individual is living beyond his or her means.
  5. Work with creditors to attempt to resolve the debt.  It is always better for an individual to get ahead of his or her credit problems than to wait until he or she receives notice of a possible denial of a security clearance. An individual who recognizes a debt problem and works towards resolving it early and before a clearance issue is raised tends to be given more credit towards the granting of the clearance as opposed to an individual who starts the process after he or she receives notice of the potential loss of the clearance.
  6. Consider credit counseling/classes. If an individual falls behind in his or her debts, it is still important to show how that individual is working to get back on a healthy financial track in order to alleviate concerns about the individual’s ability to hold a security clearance.  Taking meaningful credit classes or engaging in credit counseling can help mitigate security concerns by showing affirmative steps taken by an individual to get better control over his or her finances.

We represent individuals in security clearance and other employment matters. If you need assistance with a security clearance issue, please contact our office at (703) 668-0070 or at http://www.berrylegal.com/practices/Security_Clearance/ to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

by ARLnow.com Sponsor July 11, 2016 at 3:30 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 Berry

An interesting topic in Virginia employment law is an employee’s right to privacy in the workplace. While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and courts.

In general, for a number of reasons we recommend that employees avoid using employer technology to conduct their personal business. Virginia employers have been given a fair amount of leeway under existing laws to monitor employees in the workplace. One of the biggest concerns that we run across in representing employees in wrongful termination cases involves an employee’s use or alleged misuse of an employer’s email, computers or Internet. Frequently, one of the first actions taken by an employer following a contentious termination is its examination of a former employee’s computer or prior Internet usage. The usual result is that the employer often claims that the former employee was conducting personal business or misusing the employer’s network. An employer may then claim that the employee violated Virginia’s Computer Trespass law.

Email and Internet Monitoring of Employees

Employers that monitor employee email or Internet use should obtain legal advice ahead of time to avoid the risk of running afoul of criminal and other statutes. That said, an employer in Virginia typically has the ability to monitor emails and Internet usage on their own networks. Employers should warn employees about monitoring in advance. We usually advise employees that they should expect that their work email account may be monitored and should not be used for personal business even if they have not been so informed. Employers also need to be careful to avoid accessing employee private, non-work email accounts to which they may have access. For example, an employer should avoid attempting to inappropriately log into a former employee’s private email account that remains accessible from the employee’s former computer. Virginia also has enacted the Virginia Computer Invasion of Privacy Law. If an employer does something egregious in the course of monitoring email or Internet usage, then it could be subject to a potential claim under this law or perhaps a tort (personal injury) claim.

Telephone and Voice Mail Monitoring of Employees

Some employers monitor work-related employee telephone calls. A Virginia employer who wants to monitor telephone calls of an employee or voice mail messages must usually warn the employee in advance and the monitoring must be done in the scope of normal business. This is often accomplished by the employer at the beginning of employment, through policies listed in an employment contract or handbook. There are many pitfalls in monitoring telephone calls and voice mails of employees and this ideally should be done after receiving legal advice given that potential criminal issues could result if done incorrectly under both federal and Virginia wiretapping laws.

Security Camera Monitoring of Employees

With the widespread use and availability of small wireless cameras, some employers have attempted to monitor their employees in this manner. The courts have generally upheld an employer’s right to monitor its employees with security cameras so long as the monitoring is not particularly invasive. This has not yet been subject of major litigation in Virginia but is no doubt forthcoming. In other jurisdictions, some courts have upheld employee privacy rights in situations where camera monitoring of employees has been very invasive such as with cameras in locker rooms or bathrooms. Many courts have permitted the use of such camera monitoring to the extent that employees are aware of it and can see the cameras, and that it is not misused.

Finally, Virginia does not yet recognize the traditional claim of invasion of privacy, which could help in employee rights claims when an employer goes too far. However, serious breaches of employee privacy can result in other types of tort claims for intentional infliction of emotional distress. Virginia case law and national trends continue to change and more employment rights and the ability to sue for egregious privacy violations are likely to develop in the future.

If you need assistance with a federal retirement or an employment 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.

by ARLnow.com Sponsor June 13, 2016 at 2:00 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.

On May 12, 2016, Director of National Intelligence James Clapper issued the first policy on the federal government’s use of social media when evaluating background investigations and security clearances for federal employees and contractors.

Security Executive Agent Directive 5 does not require that security clearance decisions necessarily consider social media information, but instead permits the collection of “publicly” available social media information if an agency official determines it to be a useful tool for security clearance investigations. It is extremely likely that most, if not all, agency officials will find such information to be a necessary tool for security clearance investigations in the future given how significant social media has become in our society.

While the new policy does not require the collection of non-publicly available social media information, it is possible that such information could be required in future policies governing security clearance investigations, especially for individuals with top secret clearances. For now, however, security clearance investigators can only review publicly available social media information under the new policy. Information that is protected by appropriate privacy settings will not be reviewed by security clearance investigators.

Furthermore, unless there is a national security concern or criminal reporting requirement, information uncovered as a result of a review of an applicant’s publicly available social media information that involves other individuals or groups will not be pursued.

Security clearance investigators are also restricted from requesting or requiring individuals to provide their social media passwords or requiring individuals to log on to their private social media accounts to disclose non-publicly available information. The new policy also bars security clearance investigators or agencies from creating or using social media accounts to “Friend” or “Follow” the individual who is under investigation. We represent individuals in security clearance matters. If you need assistance with a federal retirement or an employment 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.

by ARLnow.com Sponsor May 30, 2016 at 2:30 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.

On May 18, 2016, the Department of Labor (DOL) issued a final rule making millions of middle-class workers eligible for overtime pay for the first time. The new DOL rule, which was last updated more than 10 years ago, is set to go into effect on December 1, 2016. A lot of things have changed in the time since the last revisions with respect to wages and inflation. By far, the most significant change in the new regulation is that the DOL has doubled the annual salary threshold that determines overtime pay eligibility.

Prior to the new rule, workers who earned more than $23,660 a year were not eligible for overtime pay, which is time and one-half of a worker’s regular hourly rate of pay, if they worked beyond 40 hours in a workweek and performed certain executive, professional, or administrative duties. The new DOL rule leaves the existing duties test in place but increases the annual salary threshold to $47,476. It is estimated that the new regulation will extend overtime pay to over four million workers around the country by next year.

In addition, the new annual salary threshold of $47,476 is expected to rise to more than $51,000, based on wage growth, when the first scheduled update occurs on January 1, 2020. The DOL plans to automatically increase the annual salary threshold every three years after implementation. The move by DOL has received significant press coverage and many employers are working toward implementing the new rule. Eligible workers will likely be provided more information from their employers before the new rule goes into effect.

We represent employees in employment matters. If you need assistance with a federal retirement or an employment 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.

by ARLnow.com Sponsor May 16, 2016 at 2:35 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.

Trade secrets are generally valuable information that could give a company an economic edge over its competitors and that are not easily attainable by others outside of the company. President Obama signed into law on May 11, 2016, a bipartisan bill that combats theft of trade secrets that were previously not protected under federal law.

The Defend Trade Secrets Act of 2016 (DTSA) will have an effect on employers and employees in all state and federal jurisdictions. Before the law passed, employers and employees had to navigate different state laws regarding issues involving the misappropriation of trade secrets. These state laws varied, which made it difficult for companies to construct consistent policies regarding their trade secrets. While the DTSA does not completely eliminate the different state laws, it provides for consistency in trade secret cases.

The law itself appears to be a compromise giving employers greater protections against employees taking trade secrets and also providing employees greater rights when issues of whistleblower protection arise. In general, employers with trade secrets who file lawsuits under the new law will be entitled to recover damages for their losses, in addition to preventing competitors from making use of wrongfully obtained information covered under the law. Employees will be able to disclose illegal conduct by an employer, if procedures are filed, without being subject to civil and/or criminal actions.

While the new law has several provisions and some complexities, here is a summary of the main new provisions in the DTSA:

  1. For Employers – Civil Seizures: An employer, under certain circumstances, can now go into federal court and obtain an emergency order to prevent the dissemination of trade secrets. One situation might involve an employee who has left an employer and took materials, such as client lists, product designs, etc., that he or she could use at his or her new employment in a different state. The law indicates that getting a seizure order is set at a high bar. This provides a new tool for employers whose trade secrets are at immediate risk.
  1. For Employees – Whistleblower Immunity: The new law protects employee whistleblowers who disclose alleged trade secrets to government entities. This portion of the new law is in response to concerns that non-disclosure obligations in employment contracts and the threat of civil actions by employers against employees created an impediment to employees from reporting evidence of criminal misconduct by employers to federal, state, or local government officials. The DTSA now permits employee disclosures of trade secrets made in confidence to an attorney and to government entities for the purpose of reporting or investigating a suspected violation of law or in a filing in a sealed lawsuit.

The DTSA is likely to lead to additional litigation in the federal courts over trade secret and whistleblower issues and provides additional remedies for employees and employers. An explanation and report about the new DTSA can be found here. Employees and employers should obtain legal advice before attempting to make use of the new law since each case and application of the new law can vary.

We represent employees in employment and security clearance matters. If you need assistance with a federal retirement or an employment 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.

by ARLnow.com Sponsor May 2, 2016 at 2:30 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.

The federal government uses 13 adjudicative guidelines to determine whether federal employees and contractors should be eligible for a security clearance to gain or maintain access to classified information. These guidelines include:

  • Guideline A: Allegiance to the United States
  • Guideline B: Foreign Influence
  • Guideline C: Foreign Preference
  • Guideline D: Sexual Behavior
  • Guideline E: Personal Conduct
  • Guideline F: Financial Considerations
  • Guideline G: Alcohol Consumption
  • Guideline H: Drug Involvement
  • Guideline I: Psychological Conditions
  • Guideline J: Criminal Conduct
  • Guideline K: Handling Protected Information
  • Guideline L: Outside Activities
  • Guideline M: Use of Information Technology Systems

Based on the 42 decisions issued by the Department of Defense (DoD), Defense Office of Hearings and Appeals (DOHA) since January 1, 2016, by far the most common reason why a security clearance is denied is based on Guideline F. Financial consideration issues usually arise when an applicant for a security clearance has too many outstanding or delinquent debts, is facing bankruptcy, has credit report problems, or has unaddressed tax liens.

The second most common reason why a security clearance is denied is based on Guideline E. Personal conduct issues can involve a broad range of misconduct, such as information regarding an individual’s prior termination, arrest, or domestic incident, lying on security clearance forms, or basically any other types of general wrongdoing, criminal, or otherwise.

The third most common reason why a security clearance is denied is based on Guideline H. Drug involvement or abuse is considered to be the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction (e.g., overuse of prescription pain medication).

Although the 42 security clearance decisions issued by DOHA since January 1, 2016, involved 26 cases based solely on Guideline F, 16 cases were based on one or more of the following adjudicative guidelines:

  • Guideline F: Financial Considerations (34)
  • Guideline E: Personal Conduct (11)
  • Guideline H: Drug Involvement (6)
  • Guideline J: Criminal Conduct (2)
  • Guideline B: Foreign Influence (1)
  • Guideline G: Alcohol Consumption (1)

It is important to note that the reported DOHA decisions generally cover security clearance appeals from DoD contractor employees, but the decisions provide good insight into common reasons why the federal government denies security clearances.

We represent federal employees in employment and security clearance matters. If you need assistance with a federal retirement or an employment 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.

by ARLnow.com Sponsor April 4, 2016 at 1:15 pm 0

Berry&Berry2

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

As has been widely reported in the news recently, five members of the U.S. women’s soccer team filed a gender wage discrimination complaint regarding the disparity between their salaries and those of the U.S. men’s soccer team. In light of the extremely strong and noteworthy facts in this case, we thought it might be interesting to take a closer look at some of the potential disparate pay issues in this high profile complaint.

As above-mentioned, the case currently involves the five team captains of the U.S. women’s soccer team, including Hope Solo and Carli Lloyd, who filed a wage discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of all members of the women’s team against the U.S. Soccer Federation. The women claim that the U.S. Soccer Federation was paying members of the men’s soccer team more than the women’s team members. Some of the details revealed about the complaint suggest that the women’s soccer team members have a very strong case, which is not always typical in most equal pay cases. Usually, it is hard to prove the disparities in pay between men and women. Yet, that does not seem to be the case in this matter.

The women note that they are paid between 28% and 62% less than the men depending upon certain variables. The members of the U.S. women’s soccer team receive $72,000 for playing 20 regular season games, compared to the men whose members each make a minimum of $100,000 for playing 20 regular season games. These amounts only represent base salaries. Women can make a bonus of $1,350 for winning a game, but receive no bonus for losing (yet men do).

Essentially, if a member of the U.S. women’s soccer team wins all 20 games, she will earn $99,000. Depending on the variables, if a U.S. men’s soccer team member wins all 20 games, he would have the potential to earn $263,320, essentially $164,000 more than a U.S. women’s soccer team member. If a U.S. men’s soccer team member loses all 20 games, he would still earn $100,000.

Given that the EEOC will have to investigate these disparities, it is important to note the following facts cited in the complaint and various media accounts:

  • In 2015, the U.S. women’s soccer team generated $20,000,000 more in revenue than the U.S. men’s soccer team;
  • The U.S. women’s soccer team won the World Cup in 2015, while the U.S. men’s soccer team finished 11th overall in 2015; and
  • The U.S. women’s soccer team won its third World Cup on July 5, 2015, in the most viewed soccer game in American television history.

Based on the complaint and information gleaned from media outlets, the case appears to present many strong facts demonstrating a disparity between the wages paid to the members of each U.S. national soccer team. Unless the matter settles, the complaint will likely lead to a lawsuit against the U.S. Soccer Federation filed by either the EEOC or the U.S. women’s soccer team members, which would end up in U.S. District Court. In light of the current facts that have been revealed, it would not be a surprise if the U.S. Soccer Federation settles the case.

We represent employees in employment matters. If you need assistance with a federal retirement or an employment 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.

by ARLnow.com Sponsor March 7, 2016 at 3:00 pm 0

Berry&Berry2

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 Berry

Federal employees are usually told that a Performance Improvement Plan (PIP) is only designed to benefit them and make them better performers. This, unfortunately, is usually not the case.

Managers often promise employees that they will be given special assistance to ensure they are successful during their PIP, only to later find themselves facing termination a few months later when they have not received any of the promised assistance during the PIP process. For this reason, it is crucial that federal employees on PIPs, or those who have just received a poor performance evaluation, be on guard.

Promised Opportunity to Improve

PIP procedures were enacted by Congress and require federal agencies to provide employees with an opportunity to improve prior to taking performance-based actions. The federal statutes, regulations, and case law dealing with the PIP process emphasize the importance of providing an employee with a meaningful opportunity to improve, as a PIP is meant to assist employees in achieving performance goals.

As part of the meaningful opportunity to improve, an employee generally must receive the assistance promised by the agency at the onset of the PIP period. Moreover, a supervisor’s negative actions toward an employee during or after the performance of his or her PIP period may constitute a violation of PIP procedures.

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