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by Kimberly Berry August 11, 2014 at 2:30 pm 0

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

On Aug. 8, the Office of Personnel Management (OPM) released its final regulations implementing a new phased retirement program that allows full-time federal employees to work part time and collect retirement benefits while employed. This article summarizes some of the key points about the new program.

The phased retirement program is notable because of its new part-time retirement/part-time employment option for federal employees. OPM has indicated that federal agencies can begin processing applications for this phased retirement program when the new rule becomes effective on Nov. 6, 2014. Not surprisingly, many federal employees have been interested in the program since Congress approved this new retirement option in 2012.

The new OPM rules were the result of an Act of Congress two years ago that permits federal employees to work part time (50 percent schedule) while they draw a portion of their retirement annuity (50 percent of their annuity) once they meet the eligibility requirements for retirement. Federal employees who elect the program will be required to spend at least 20 percent of their time in a mentoring status. Essentially, the objective is for federal employees to help train their replacements as they phase out of the federal workforce.

Those who are eligible for the program include federal employees in both the Civil Service Retirement System (CSRS) and Federal Employees Retirement System (FERS) programs. CSRS employees will become eligible for the new program once they reach 1) 55 years of age and 30 years of service or 2) 60 years of age and 20 years of service. FERS employees are eligible for the program once they reach 1) 30 years of service and their minimum retirement age (MRA) or 2) 20 years of service and 60 years of age.

OPM states in the new rule that the program “is not a one-size-fits-all program,” but that both an agency and an employee must agree that the phased retirement option is a good fit for both.  OPM has indicated that the various federal agencies will have the flexibility to work out many other details, including the length of the phased retirement and the number of employees who will be eligible. The phased retirement program was enacted with the general goal of preserving institutional knowledge within the federal agencies while simultaneously saving the federal government money.

For a full synopsis of OPM’s new phased retirement program, the final rule (79 FR 46607) can be viewed here.  The new OPM retirement rules can be very complex. We recommend that federal employees obtain legal representation and advice when considering this new phased retirement program, especially during the early stages of the program.

Our law firm represents and advises federal employees and retirees in all federal retirement matters. If you need legal advice or representation regarding the new phased retirement program or any other federal retirement 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 Kimberly Berry June 2, 2014 at 2:00 pm 0

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

In the private sector, non-compete agreements between employers and employees are becoming more prevalent.

Non-compete agreements generally involve an employer’s decision to impose certain restraints or restrictive covenants on an employee during, and for a period of time after, the employment relationship. Examples of such restraints or restrictive covenants include post-employment covenants not to compete with the employer’s business and non-solicitation of the employer’s customers and employees.

Although federal, state, county, or municipal laws may regulate non-compete agreements differently, under Virginia case law a non-compete agreement must be reasonable to be enforceable. Only a court may decide, as a matter of law, whether a non-compete agreement is enforceable. However, the employer bears the burden of proving that its non-compete agreement is enforceable under Virginia law. A reasonable non-compete agreement generally consists of three components:

  • It should be no more restrictive than necessary to protect the employer’s legitimate business interests;
  • It should not unduly burden the employee’s legitimate efforts to earn a livelihood; and
  • It should be consistent with sound public policy.

The Virginia courts typically look for the following factors when assessing whether a non-compete agreement is reasonable:

  • The duration of the restrictive covenant;
  • The geographic scope of the restrictive covenant; and
  • The scope and the extent of the restricted activity.

Whether the duration, geographic scope, and scope and extent of the restraint imposed by the employer are reasonable depends upon the specific facts of each case. Thus, every non-compete agreement should be analyzed separately and by balancing the non-compete agreement’s unique provisions with the parties’ specific circumstances. Generally, however, non-compete agreements that are more narrowly tailored in geographic scope and duration are more likely to be considered reasonable.

Likewise, overly broad and ambiguous non-compete agreements, or agreements involving employers that do not have a legitimate business interest in the restrained activity, may be unenforceable. Virginia courts will generally not modify non-compete agreements that are ambiguous. Rather, the courts usually construe ambiguous clauses in non-compete agreements against the employer.

Employers enforcing non-compete agreements can typically seek preliminary and permanent injunctions; lost profits damages; damages for lost good will; liquidated damages (if provided in the agreement); and attorneys’ fees. Since the consequences of signing non-compete agreements can be extremely costly and problematic for many employees, we recommend that employees obtain the advice of an attorney, preferably before the employee signs the non-compete agreement.

Virginia courts also recognize non-disclosure agreements (also referred to as NDA or confidentiality agreements) and non-solicitation agreements. The courts generally analyze such agreements in the same way that they analyze non-compete agreements.

Our firm represents federal employees and private, state, and county employees and employers in Virginia, the District of Columbia, Maryland, Massachusetts, Maine, Michigan and New York regarding non-compete agreements, non-disclosure agreements and non-solicitation agreements as well as various other 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.

by John V. Berry May 19, 2014 at 3:15 pm 1,127 1 Comment

 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 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.

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