Reston, VA

Legal Insider

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.

Effective January 1, 2017, employees in France working for companies with more than 50 employees were given new employment rights, including the ability to negotiate terms with employers about ignoring their work emails outside of normal working hours. The new French law has been referred to as the “right to disconnect” and could trend to other countries, such as the United States.

The goal of the new French law is to stem the tide of after-work emails cutting into the modern problem of compulsive email checking after work. The French have acknowledged that employers who require employees to check and respond to emails after work has lead to insomnia, relationship issues and overall less family time. The goal of the new law is also to reduce after-work stress.

Many individuals have commented in the news about the viability of such a law taking hold in the United States. It is possible to see some changes in the future as the line between work and home life blurs through the increasing use of and advances in technology. The issue has already started to appear in the United States with some workers claiming overtime for responding to emails beyond work hours. Some U.S. companies have already voluntarily instituted “no email” policies after work hours and on weekends. It will be interesting to watch as new policies and laws about after-work emails develop in the future.

If you need assistance with an employment law issues in Virginia, 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

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 in Reston 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.” Read More

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Legal Insider

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 in Reston that specializes in federal employee, security clearance, retirement, and private sector employee matters.

 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.

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New Berry&Berry

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.

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.

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New Berry&Berry

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.

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. Read More

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New Berry&Berry

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.

Many federal employees have a limited understanding of the purpose of the Merit Systems Protection Board (MSPB). The MSPB is an independent federal agency that functions as a quasi-judicial court system protecting certain rights of federal employees. This article provides a brief overview of the MSPB process.

Types of MSPB Cases

The MSPB is tasked, in large part, with the following types of federal employee appeals:

  1. Removals (terminations) or demotions (discipline or for performance)
  2. Disciplinary suspensions of more than 14 days
  3. Federal retirement related to OPM actions
  4. Whistleblower
  5. Denials of within-grade salary increases
  6. Reduction-in-Force (RIF)
  7. Discrimination based on military service (USERRA)

The MSPB also has jurisdiction over other types of federal employee appeals, but the ones listed above are the most common.

What Happens During an MSPB Appeal?

Once a federal employee files an initial MSPB appeal, an administrative judge is assigned to hear the case, which is similar to a regular civil Read More

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New Berry&Berry

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.

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. Read More

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New Berry&Berry

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.

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.

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Berry&BerryRevised

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.

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. Read More

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Berry&BerryRevised

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.

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 Dec. 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 Jan. 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.

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Berry&BerryRevised

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.

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. Read More

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Berry&BerryRevised

 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.

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.

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Berry&BerryRevised

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.

The federal government issued a final rule, which is effective on May 9, 2016, completing regulations providing same-sex spouses with the same rights under the Family and Medical Leave Act (FMLA) as opposite-sex spouses. The FMLA rights had previously applied only to opposite-sex marriages.

An interim version of these rules had been in place for federal employees since 2013. The change, along with other benefits adjustments instituted by the U.S. Office of Personnel Management (OPM), is a result of the June 26, 2013, U.S. Supreme Court decision, which struck down the Defense of Marriage Act.

The FMLA permits federal employees to take up to 12 weeks of unpaid leave in a year in connection with the birth of a child, adoption, the care of a spouse with serious health conditions, for personal serious health conditions, and for matters involving family demands that relate to a family member’s active duty service.

In addition to leave, same-sex spouses have also been eligible since 2013 for other federal employee benefits, such as coverage under health care and other insurance programs and eligibility for retirement annuity survivor benefits. OPM has provided a synopsis of answers to questions regarding such benefits.

OPM and the federal government have moved relatively quickly following the U.S. Supreme Court’s ruling in 2013 to make changes to comply with the law for same-sex spouses. Future adjustments by OPM and other federal agencies can be expected as they comply with the law.

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.

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Berry&BerryRevised

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

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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Berry&BerryRevised

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

In a significant move, President Obama has initiated the process for new rules that would be a stronger focus on enforcing equal pay. Specifically, the president, through the Equal Employment Opportunity Commission (EEOC) and other agencies, is proposing new regulations that would require companies with over 100 employees and certain government contractors to report pay data by gender, race, and ethnicity. The proposal would cover over 63 million employees.

The Chair of the EEOC, Jenny R. Wang, stated that “[t]he pay data will provide EEOC . . . with insight into pay disparities across industries and occupations. Our agencies will use this data to more effectively focus investigations, assess complaints of discrimination, and identify existing pay disparities that may warrant further examination.”

Chair Wang’s remarks and additional information were delivered at the White House Equal Pay event on Jan. 26.

Companies with over 100 employees and certain government contractors with more than 50 employees are currently required to report the number of individuals they employ by job category and by race, ethnicity, and sex. Under the new rule, such companies will also be required to report employees’ taxable earnings for the past year, including tips, taxable benefits, and applicable bonuses.

These new reporting requirements will help the enforcement of equal pay laws and likely cause employers to ensure that they are paying attention to disparities in pay between men and women. The new regulations are likely to be completed by 2016 and the initial reporting requirements for employers are likely due in September 2017.

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 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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