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

Several states have recently passed laws legalizing the use of certain drugs, such as marijuana, for either recreational or medical use.

Officials in the District of Columbia recently passed a law that legalized the limited possession and cultivation of marijuana by adults 21 and older.

Virginia has been less accepting of any change to its existing drug laws as a number of similar drug legalization bills have met significant opposition.

Maryland has proposed a bill that would legalize, tax, and regulate marijuana for adults 21 and over, which remains in a state house committee.

In light of recent changes to state laws legalizing certain drug use, employees and employers alike are questioning how these changes will affect the employer’s ability to continue to require drug testing in the workplace and potentially terminate or discipline an employee for positive drug test results. However, many employers still continue to test employees for illegal drug use.

While some jurisdictions have legalized the use of certain drugs, they have not yet updated their laws to prohibit testing for legalized drugs. For instance, a D.C. employer can still test its employees for marijuana use despite laws that now legalize marijuana use in the District. Although D.C. has proposed new laws to place some limits on drug screening for marijuana use in the workplace, such proposals are still in progress. As a result, employers in D.C. are essentially permitted to continue their existing drug testing requirements without making exceptions for the recent legalization of marijuana use in the District.

The federal government has taken the position that the use of illegal drugs, even in states that have legalized the use of certain drugs, still violates federal law. As a result, drug use, even where approved by state law, can result in a security concern being raised and/or the potential denial of a security clearance for federal employees and government contractors. In addition, a security clearance holder can be penalized for associating with other individuals engaging in drug use, even if the other individuals have engaged in state-legalized drug use.

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.

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

At Berry & Berry, we represent many federal employees in the workplace, including defending federal employees against proposed disciplinary actions. Despite the common belief that it is hard to discipline or terminate a federal employee, federal employees do face discipline and termination. We have summarized below some of the most frequent issues that federal employees encounter and provide some general tips regarding how to avoid these potential problems:

Don’t surf the Internet at work for personal use: While many federal agencies are somewhat relaxed in their enforcement of Internet policies, it is important to avoid using the Internet for personal use while at work. We have represented many federal employees who are investigated for either inappropriate use of the Internet (accessing inappropriate sites) or for too much personal Internet use.

Often, we defend federal employees who have used the Internet to watch Netflix, check their banking accounts or purchase items on eBay. Keep in mind that, if an agency wants to, an agency can check the websites that a government employee has been accessing and determine the amount of Internet usage.

Don’t use government email for personal use: Always use your personal email account for personal email correspondence. We have represented a number of federal employees who have been proposed for discipline due to misuse of their official government email account. Sometimes the federal employee’s issues involve using government email for personal use or sending inappropriate correspondence or photos. In addition, avoid using famous quotations or sayings, like inserting a famous quotation below your signature block, when corresponding using your government email account.

Don’t use government credit cards for personal use: We have represented many federal employees who have mistakenly or innocently used their government credit card for personal charges. Not only are many federal employees disciplined or terminated for such misuse, but they can be forced to repay the funds inappropriately charged to their government credit card. Even if policies on credit card usage are not apparently enforced, do not use a government credit card for personal use under any circumstances.  

Read More

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

In the past, the Department of Justice (DOJ) had often sought to dismiss gender identity and transgender discrimination cases since it asserted that Title VII of the Civil Rights Act’s prohibition of discrimination based on sex did not include gender identity.  However, on December 15, 2014, the DOJ issued a memorandum regarding a new policy on the treatment of transgender workplace discrimination claims.

The new policy means that the DOJ will now include gender identity, including transgender discrimination, in the prohibition of sex discrimination in the workplace. In defending lawsuits, according to the memorandum, the federal government has also evolved and will no longer take the legal position that Title VII of the Civil Rights Act of 1964 does not protect against workplace discrimination on the basis of gender status.

The DOJ’s new policy follow on the heels of a revised Executive Order issued by the President in July 2014 which provides protection for gay and transgender individuals who are employed by the federal government and government contractors.

Our law firm represents and advises individuals and private sector employers 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

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Job seekers who have a criminal history usually get passed over by potential employers after they check the box on the job application indicating that they have a prior criminal record. Many jurisdictions are now changing laws to prevent employers from requiring such disclosures before hiring.

This change is known as “ban the box.” So far, 13 states and numerous counties and municipalities have enacted such laws to give second chances to individuals with prior criminal records.

In the past eight months, the District of Columbia, Baltimore County, Montgomery County, and Prince George’s County have passed versions of “ban the box” laws that restrict, in varying degrees, required disclosures regarding prior criminal convictions when applying for employment.

The Commonwealth of Virginia has not yet enacted a version of “ban the box” statewide, but a number of jurisdictions such as Alexandria, Richmond, Newport News, and Norfolk have passed local laws prohibiting the disclosure of criminal history for many types of public employment.

In the District of Columbia, the D.C. Council passed a sweeping law that offers some of the strongest protections thus far. The Fair Criminal Record Screening Act forbids a covered employer from ever requiring an applicant to disclose or reveal an arrest or a criminal accusation that did not result in a conviction or is not pending in court.

A covered employer may seek information about an applicant’s previous criminal convictions only after it has provided a conditional offer of employment to the applicant. The employer cannot rescind the offer unless it can justify the withdrawal for a legitimate business reason based on the following factors:  1) time elapsed since the offense, 2) types of duties and responsibilities of the position sought, 3) age of the employee at the time of offense, 4) the seriousness of the offense, 5) evidence of rehabilitation since the offense, and 6) the bearing of the criminal offense for which the person was convicted will have on the person’s fitness or ability to perform the duties and responsibilities of the position sought.

If the employer does not follow the rules properly, the applicant can file a complaint with the D.C. Office of Human Rights and the employer may be subject to sanctions.

In the state of Maryland, Baltimore County, Montgomery County, and Prince George’s County have similar but varying new laws that attempt to make it easier for individuals with a prior criminal record to make a fresh start.

Too often, a mistake made by an individual in high school or college prevents him or her from moving ahead with his or her career even decades later.  These new laws attempt to help level the playing field for otherwise qualified individuals by giving them a fair chance to compete for jobs.

Our law firm represents and advises individuals and private sector employers 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.

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

In this digital age, it seems that almost everyone uses social media networks such as Facebook, Twitter, LinkedIn, Pinterest, or Instagram to communicate with the world whether it is through pictures or writing.

But to what extent, and how often, will security clearance authorities in the future review the social media accounts of security clearance applicants and holders as part of the government’s current upgrades to the security clearance review process?

Trials with Social Media in Clearance Reviews

The Office of the Director for National Intelligence (DNI) is evaluating the possibility of including social media account reviews as part of the security clearance process. According to a number of news sources, the Office of the National Counterintelligence Executive (NCIX) has been tasked to review the feasibility of including social media evaluations as part of the security clearance process. One consideration by the NCIX is whether this type of review is realistic and would be useful.

Ongoing trials of social media review, using volunteers by the DNI, are looking into how such a system would function and whether it would work in the real world. The trial apparently includes a review of all public entries in social media by volunteer security clearance holders. For instance, the trial review includes an online search into publicly available information by a security clearance holder to see if the information gives rise to security concerns. Read More

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Until recently, in Virginia and in most other jurisdictions, there were very few, if any, protections from discrimination in the workplace due to an employee’s sexual orientation.

Typically, an individual could be subject to termination from employment based on sexual orientation discrimination without any recourse. The courts tended to readily dismiss such cases or not acknowledge them as valid claims.  While the current protections are not where they need to be, the laws in this area and the individuals that interpret them have started to change. Below are the most recent changes to sexual orientation discrimination laws and enforcement.

Active EEOC Enforcement: The Equal Employment Opportunity Commission (EEOC) has decided to take a proactive approach to and actively prosecute sexual orientation discrimination complaints. Due to the limitations in existing federal law under the Civil Rights Act in pursuing complaints based solely on sexual orientation, the EEOC has taken the approach that many forms of sexual orientation discrimination also constitute sexual harassment or sex discrimination. As such, the EEOC has pursued cases involving sexual stereotyping and gender identity. For example:

• Comments or rumors about an employee being gay can be severe enough to constitute sexual harassment.
• Innuendos about an employee’s sexuality and “feminine voice” can constitute sex discrimination.
• Comments or stereotypes that men should only marry women can constitute sex discrimination.

Changes by Presidential Executive Order:  On July 21, 2014, President Obama amended Executive Order 11478, which has a significant effect on a number of Northern Virginia companies that have federal government contracts over $10,000.

The changes to the Executive Order bars federal contractors, subcontractors, and construction employers working on federally assisted construction projects from engaging in discrimination in employment on the basis of sexual orientation or gender identity.

The specific rules for processing such cases and enforcing the new changes to the Executive Order are being developed by the Department of Labor.  Read More

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

How to Prevent Pregnancy Discrimination

Pregnancy discrimination is one of the fastest growing areas of discrimination law because many employers do not understand the legal requirements that are in place to protect pregnant employees. The following general guidance is meant to help employers prevent and appropriately deal with, as well as educate employees regarding, issues of pregnancy discrimination in the workplace.

Don’t Discriminate Based on Pregnancy: The Pregnancy Discrimination Act makes it illegal for an employer with 15 or more employees to discriminate against an employee in all areas of employment, including hiring, firing, pay, job assignments, promotions, layoff, training and benefits (e.g., leave and health insurance).

Example: Jennifer applies for a position as a pharmaceutical sales representative. She is also five months pregnant. During her interview, the hiring manager explains that the position will require a lot of walking and asks whether Jennifer’s pregnancy will affect her ability to work. Jennifer is not hired as a result of the hiring manager’s belief that her pregnancy will affect her ability to work. Jennifer could bring a case of pregnancy discrimination.

Provide Equal Treatment to Pregnant Employees: If an employee becomes pregnant or is unable to perform her job due to issues during and after her pregnancy, the employer must treat the employee the same way it treats temporarily disabled employees. Read More

 

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

There are several important issues federal employees should consider when deciding whether to pursue an Equal Employment Opportunity (EEO) complaint against a federal agency or supervisor.

Potential EEO claims. Federal employee EEO complaints can involve a range of discriminatory conduct by federal agencies, including discrimination on the basis of age, disability, race, religion, sex, pregnancy, genetic information, and national origin. In addition, EEO complaints can also involve hostile work environment, sexual harassment and retaliation.

Example EEO complaints. Some typical EEO claims brought by federal employees are demonstrated in the following five hypothetical scenarios:

• Example A: Federal employee is sexually harassed at work by her supervisor. When the federal employee refuses her supervisor’s overtures, she then receives a suspension from the same supervisor. The federal employee brings a claim for sexual harassment.
• Example B: Federal employee has previously filed an EEO complaint against his supervisor. A year later, the federal employee discovers that his promotion was denied by the supervisor because the supervisor was upset that the federal employee had filed an EEO complaint. The federal employee brings a claim for retaliation.
• Example C: Federal employee takes sick leave related to treatment for cancer. Upon the employee’s return, his supervisor gives the employee a bad performance evaluation for taking too much time off. The federal employee claims disability discrimination.
• Example D: Federal employee takes sick leave related to a recent car accident and requires a lot of time out of the office for physical therapy. The federal employee is also unable to perform some of her duties as she recovers, including the lifting of boxes for a limited period of time. The federal employee asks her supervisor for modifications to her duties (a reasonable accommodation), but the supervisor refuses to modify the employee’s schedule. The federal employee claims disability discrimination for her agency’s failure to accommodate her serious medical condition.
• Example E: 60 year-old federal employee is competing for a promotion to a GS-15 position. Federal employee competes against two other employees, under the age of 40, for the same position. The 60 year-old federal employee is not selected for the position. He later discovers that the selecting official expressed concerns that may have impacted his decision, namely that the 60 year-old applicant might retire sooner than the other two younger applicants. The 60 year-old federal employee claims age discrimination.

EEO complaint deadline. Typically, a federal employee only has 45 days from the date of discrimination in which to contact an EEO counselor at the federal agency to initiate the EEO complaint process. If a complaint is not timely initiated, the federal employee may be time-barred from filing the EEO complaint. Read More

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

On July 7, 2014, President Obama signed into law the Intelligence Authorization Act for Fiscal Year 2014, which made some changes to the existing security clearance process. These changes were not widely reported in the media and many provisions still have not been fully implemented.

The new law puts into effect two key changes for security clearance holders: (1) continuous monitoring and (2) annual reporting requirements. Title V of the new law requires the Director of National Intelligence (DNI) to:

1. Ensure that the background of each employee, officer, or contractor of the intelligence community is monitored continuously to determine his or her eligibility for access to classified information; and
2. Develop procedures to require sharing of potentially derogatory security information concerning an employee, officer, or contractor of the intelligence community that may impact the eligibility of such individuals for a security clearance.

While the law does not immediately implement these two changes (or explain how the new continuous monitoring system will work), it essentially tasks the DNI with designing a new system to monitor cleared federal employees and contractors so that security concerns get identified as soon as possible.

In the past, clearance holders often had additional time, between their 5- or 10-year renewals before negative information (e.g., an arrest, civil issue, or other security concern) was identified. This has caused a number of concerns such as in the Navy Yard shooting. Even though cleared employees often had a duty to report these issues as they arose, the new provision is designed to enact a process whereby such issues will be identified earlier. The purpose behind the new continuous monitoring system is explained more in this article on the PBS Newshour website.

The law also requires that the DNI develop new procedures for sharing security concerns about a clearance holder between different government agencies responsible for clearance decisions. Another important change in Title VI of the new law includes a number of new whistleblower protections for CIA, DIA, NGA, NSA, DNI, and NRO employees that prohibit retaliation by these agencies for lawful whistleblower disclosures. While the new law leaves a number of issues to be defined, it takes the first step toward tightening the process for clearance holders in maintaining their security clearances.

Our law firm represents and advises federal employees in security clearance matters. If you need legal assistance regarding a security clearance 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.

 

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Many job applicants are aware that potential employers will try to gather as much information as possible about them during an interview. However, job applicants should be mindful of illegal questions asked during the job interview.

Often times such questions are used by employers in an attempt to obtain information that is improper to consider in the hiring of job applicants. Any questions that will reveal a job applicant’s race, religion, marital status, age, or sexual orientation are considered illegal. The following are some examples of illegal questions a potential employer may ask a job applicant:

Do you plan to get pregnant in the near future? This question may lead to pregnancy discrimination.

I see you limping?  Is there anything wrong? This question may lead to disability discrimination.

How many children do you have or plan to have? Who in your household will care for your children while you are at work? How old are your children? These questions may lead to pregnancy and sex discrimination.

Do you mind giving us your Facebook account login information to see if you are a good fit? This question may lead to all forms of potential discrimination and some state laws protect employees against turning over social media information.

I like your accent. Where is that from? This question may lead to national origin and race discrimination.

Have you ever been arrested? Employers can sometimes ask about a prospective employee’s conviction record, but they risk raising discrimination issues by asking this type of question during a job interview.  Some states have specific prohibitions on these types of questions.

Are there any specific religious holidays that you need to observe requiring you to take time off? This question may lead to religious discrimination.

Are you married or planning to get married anytime soon? This question may lead to gender discrimination.

How many sick days did you take in the last two years?  This question may lead to disability discrimination and other issues.

How well do you work with women? This question may lead to gender discrimination.

The following are some guidelines to help employers avoid legal problems following a job interview:

• Avoid asking a job applicant the above potentially discriminatory or illegal questions.
• Create a standard list of questions that all candidates will be asked during the interview process. The more that such a process is standardized, the better the defense may be to later claims of bias and discrimination.
• Have employment counsel or human resources review the list of interview questions for job applicants prior to the interview process.
• Interview prospective employees with two or more personnel present during the interview. This helps to ensure that if a claim is later filed by an unsuccessful applicant that there is more than one witness to respond to claims made about the interview process.
• Don’t ad lib during the interview process and ask questions that could be misconstrued, such as those listed above.
• Avoid making excessive promises about the potential position during the interview that could potentially lead to a breach of contract claim.  For instance, avoid promises such as “the person that is hired for the position can expect to stay for the rest of his or her career as long as he or she performs well” or that “the position is permanent.”

If a job applicant was asked a potentially discriminatory or illegal question during an interview, he or she may have legal recourse against the potential employer.  Our law firm represents and advises employees and employers in legal matters related to employment interviews. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  Please also visit our Facebook page at https://www.facebook.com/BerryBerryPllc

  

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Ending an employment relationship can be difficult for both the employee and the employer. Here are some simple tips for employees and employers to consider that can help reduce the risk of the departure causing long-term career damage for the employee or resulting in the employee initiating a claim or lawsuit against a former employer. If employers and employees resolve the termination of the employment relationship amicably, it is less likely that a dispute will arise. 

Tips for a departing employee:

1. Be careful about downloading information from an employer’s computer or making backups of company e-mails onto CDs or thumb drives without permission. There have been a number of recent cases where doing so without an employer’s permission can subject an employee to personal civil liability and/or cause the employee to jeopardize his or her security clearance. Get permission from the employer first if company policy is unclear.

2. Be careful about taking or making copies of documents from work when you leave. You may consider them your own work product, but an employer may consider them trade secrets; therefore, it could subject you to civil liability. Again, check with the employer first before taking or copying documents if company policy is unclear.

3. Don’t burn your bridges. Generally, an employee’s most memorable times of employment are his or her first and last weeks with an employer. Likewise, these are the times that an employer remembers most for purposes of future inquiries and references regarding the employee. It is far more prudent to be pleasant and professional when you leave an employer, even if you are terminated and/or the employment relationship has deteriorated. If an employee expresses anger or resentment to an employer, the contention can further cause significant difficulties when the employee attempts to use the former employer as a reference or later attempts to obtain or renew a security clearance. To the extent possible, employees should always leave on professional terms.

4. Do not sign a separation or severance agreement offered by an employer without first speaking with an attorney. Usually, the agreement includes a standard release and possibly non-compete and/or non-solicitation terms. An employee should understand what he or she is signing before agreeing to a release and/or any restrictive covenants. Keep in mind that severance terms can often be negotiated despite an employer’s initial suggestion that the employee “take it or leave it.” Most, if not all, severance terms are usually negotiable.

Tips for an employer dealing with a departing employee:

1. When terminating an employee, do so with dignity and kindness. Not only is this the right way to handle a termination, but it reduces the risk that the employee will file a future employment claim against the employer. Many claims are filed by employees because of the manner in which an employee was treated by the employer during termination.  Read More

 

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Legal inquiries regarding the use of voice recorders in the workplace have increased in recent years with the use of smartphones. Many software applications (apps) designed for smartphones make the process of recording others easier than ever and unknown to the party being recorded.

However, there are serious legal issues involved in the recording of others that should be considered before doing so. Generally, recording of conversations in the workplace is not recommended given the number of legal and workplace issues that can develop for an employee as a result.

Laws Governing Recording in the Workplace

Depending on each situation, federal wiretapping laws can apply to the recording of other individuals.  In addition, each state has different laws adding to a complex set of laws that could apply to any given situation. In addition, in the employment context, making a recording can be considered a violation of company policies. In our legal practice, we have also defended private sector and federal employees who were disciplined for their use of recording devices in the workplace.

Recording an individual on a telephone can be extremely problematic because doing so in one jurisdiction might be legal while the other party to the telephone call could be on a cellphone in another state where the law is different.That could make the recording illegal and subject an individual to prosecution.

Recording someone during an in-person work meeting is also problematic. Virginia law (Virginia Code § 19.2-62) makes it a crime to intercept wire, oral, or electronic communications, unless one party to the conversation consents. Even though this means that an employee, in theory, could record a conversation during an in-person meeting without obtaining all parties’ consent and not break Virginia’s criminal laws, doing so is not recommended and rarely worth the risk.  Before attempting this, in any event, it is important to discuss the specific facts of one’s individual situation with an attorney to avoid any criminal complications later.

General Advice on Recording Others in the Workplace

While an employee may in some situations be able to record conversations with others in the workplace without breaking criminal laws, it does not mean that doing so is a good idea because there are several risks.  For example, an employee could be terminated if he or she is caught recording others (e.g. a supervisor during a performance meeting) in the workplace based on a company policy against recording others or under a general misconduct policy.

Furthermore, the value of having a recording may be significantly diminished or barred from a later court proceeding if done without the consent of all parties. In addition, employees and employers may find themselves subject to potential civil liability under privacy laws for recording others without their permission.

If an employee or employer has recorded others in the workplace, it is important to discuss these issues with an attorney as soon as possible because the issues could get complicated and involve liability for either party. Our firm represents federal employees and private, state, and county employees and employers in Virginia, the District of Columbia, and Maryland regarding employment matters.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  Please also visit us on Facebook at www.facebook.com/BerryBerryPllc.

 

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Many current and former employees often ask whether they have the right to obtain a copy of their personnel file or have the ability to review and inspect it at the very least. It is important to understand that each state has its own laws and regulations concerning personnel files of private sector employees. In addition, public sector (federal, state and county) employees are governed by different state and federal laws.

Access to Personnel Files Varies

Private sector employees are generally not entitled to a copy of their personnel file. Virginia, the District of Columbia, and Maryland currently do not have statutes that require private sector employers to provide a copy of or even the ability to review employee personnel files. Some states, such as California and Connecticut, have passed laws requiring that employees have access to their personnel files. The national trend seems to be moving in favor of passing laws that require employers to provide current and former employees access to their personnel files.

Unionized private sector employees may have additional rights to review or obtain a copy of their personnel files, depending on collective bargaining agreements negotiated between a union and an employer. Federal employees generally have the right to obtain a copy of their personnel files through the Privacy Act of 1974, 5 U.S.C. § 552a. Virginia public sector (State or County) employees have the right to review their personnel files under Va. Code 2.2-3705.1 and Va. Code 2.2-3705.5.

In addition, if a personnel matter goes to court, an employee will typically be able to obtain a copy of his or her personnel file through litigation procedures.

Advice to Employees and Employers

If employees do not have a statutory or other right to obtain a copy of their personnel file, we advise that they still request the ability to review it. Even though employers may not have a formal policy on personnel files, human resources often will grant an employee’s request to review his or her personnel file.

We advise employers to consider allowing employees, under certain conditions, the ability to review their personnel file even if it is not required. This often has a positive effect on workplace morale and helps to limit suspicion in the workplace. It also gives the employer the ability to clearly document that an employee was put on notice where disciplinary or performance actions have been taken. An employer should certainly have a policy in place that is consistently applied to all employees.

Our firm represents federal employees and private, state, and county employees and employers in Virginia, the District of Columbia, and Maryland regarding employment matters and requests for information from personnel files.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

 

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Fairfax County has a grievance procedure for County employees, such as teachers and police officers, to attempt to improve employee-management relations and resolve employment matters contained in Chapter 17 of the County of Fairfax Personnel Regulations.

What Can Be Grieved?

Items that can generally be grieved include, but are not limited to, the following:

• Terminations
• Demotions
• Suspensions
• Application of Fairfax County policies
• Retaliation
• Discrimination
• Whistleblower

Generally, County employees cannot file a grievance involving:

• Wage or salary
• Position classifications
• Employee benefits
• Promotion decisions
• Oral reprimands

Five Steps of the Grievance Process

Step 1 of the grievance process is for the County employee to discuss the problem with his or her immediate supervisor in a meeting within 20 business days of the date the County employee reasonably had knowledge about the problem that gave rise to the complaint.

If the problem is not resolved after the Step 1 meeting with the immediate supervisor, the County employee may file a Step 2 written grievance on “Complaint Form — Second Step” with the division supervisor.  The division supervisor shall meet with the County employee within five business days of the receipt of the Complaint Form. After the meeting, a reply from the division supervisor shall be made within five business days.

If the problem is not resolved after Step 2, the County employee may file a final Step 3 written grievance on “Complaint Form — Third Step” with the department head.  The department head shall meet with the County employee within five business days of the receipt of the Complaint Form. After the meeting, a reply from the department head shall be made within five business days.

If the grievance cannot be resolved by means of Steps 1 through 3 of the process, then the County employee may request a determination of the grievability of the complaint within 10 business days following the receipt of the Step 3 reply from the department head.  Step 4 involves a determination as to whether the grievance can go to a hearing. This decision is made by the County Executive and can be appealed to the Fairfax County Circuit Court.

If the County Executive or the Court finds that the grievance is grievable, the County employee may then proceed to Step 5 and file a request for a hearing with the Fairfax County Civil Service Commission.  The grievance appeals are reviewed by a three-member panel, and if the Commission accepts the grievance then a hearing is scheduled.

The Grievance Hearing Process

Hearings on grievances before the Commission are similar to civil litigation.  Attorneys give opening statements, examine and cross-examine witnesses, introduce evidence, and provide closing statements.

Following the hearing, which can be binding or non-binding, the Commission can, depending on the issues, take such actions as reinstating a terminated employee, reducing suspensions, and providing back pay as appropriate.

Contact Us

If a Fairfax County employee is considering filing an employment grievance, it is important to obtain legal advice and legal representation beforehand. Our law firm represents Fairfax County employees, such as teachers, police officers, and other county personnel in their employment grievances filed with the County.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

 

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 Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write weekly on Reston Now. 

When a security clearance applicant or re-applicant completes an e-QIP or SF-86 security clearance form, an assigned security clearance investigator will usually contact him or her to schedule a face-to-face interview.  Since the interview is one of the most important steps in the security clearance process, we strongly recommend that applicants prepare for the interview beforehand as much as possible.

Background Check

The security clearance investigator will typically review and confirm most of the information that an individual has provided prior to the interview. For example, the investigator may speak with former supervisors, neighbors, co-workers, family members, as well as social references to get a full background of the individual seeking the clearance. In addition, the investigator will most likely check with law enforcement agencies in areas where an individual has resided and thoroughly review other relevant background information on the individual.  When the review of the information is complete, the investigator will generally contact the individual for an interview.

Preparation for the Interview

Since the investigator has generally reviewed the individual’s submission prior to the interview, he or she will have already identified any significant areas of concern. In our experience, the individual being interviewed will have some awareness about potential areas of concern that might come up during the interview and, thus, will generally have time to prepare how he or she should address them.

For instance, if the individual was involved in a recent alcohol-related driving offense, he or she should be prepared to fully explain the incident to the investigator, discuss any alcohol counseling sought and what steps have been taken to avoid the same situation in the future, and provide other relevant details.

If an individual’s case involves known security violations or other concerns then it is important to obtain any relevant documents prior to the interview, especially if they can be helpful in explaining or mitigating the potential security concerns at issue.  We strongly advise discussing and reviewing such documents with an attorney in advance to provide the best opportunity to help increase the chances for a successful interview.  Read More