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by RestonNow.com Sponsor — March 13, 2017 at 4:00 pm 4 Comments

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.

On March 8, Congress moved forward with bill H.R. 1313, sponsored by Rep. Virginia Foxx (R-N.C.), to enable employers to obtain genetic information about an applicant or employee.

Presently, genetic testing of employees and prospective employees, on anything other than a voluntary basis, is illegal. Genetic testing of employees currently is protected by the Americans with Disabilities Act (ADA) and the 2008 Genetic Information Nondiscrimination Act (GINA). The bill, which was approved by the House Committee on Education and the Workforce, is part of the Preserving Employee Wellness Programs Act and would allow employers to impose penalties of up to 30 percent of the total cost of the employee’s health insurance on those who choose to keep such information private from their employer.

Congress enacted GINA to prohibit discrimination by health insurers and employers based on the genetic information that people carry in their DNA. GINA currently contains an exception, however, that allows employees to voluntarily provide their genetic information as part of a voluntary wellness program. If passed, the bill would change the nature of the voluntariness of providing genetic information and make it clear that employers who offer wellness programs, and also require genetic testing as part of these programs, can legally charge workers who refuse to take the genetic test a higher price for health insurance than workers who will.

If enacted by the full House and Senate, H.R. 1313 would effectively repeal the fundamental genetic and health privacy protections in GINA and the ADA. The new provisions would permit employers, under the guise of workplace wellness programs, to ask employees questions about genetic examinations taken by themselves or their families. Further, an employer could make inquiries about the medical history of employees and other family members. GINA’s requirement that employee genetic information collected as part of a wellness plan only be shared with medical professionals would no longer apply. This could open the door to discrimination by employers on the basis of genetic examinations or family histories.

If you need assistance with an employment law issue 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.

by RestonNow.com Sponsor — February 27, 2017 at 4:00 pm 0

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.

Virginia employees are protected by Occupational Safety and Health laws from retaliation and discrimination if they report safety and health issues in the workplace.

In Virginia, an employee shall not be discriminated against or terminated in retaliation for filing a safety or health complaint, testifying or exercising a right under Virginia Code Ann. § 40.1-51.2:1 concerning employee safety and health.

Examples Where Law Might Apply

Here are some examples where the Virginia law against retaliation might apply. Keep in mind that this particular Virginia law is focused on dangers reported that could affect an employee or other employees in the workplace.

  1. An employee reports to the fire department that there is a gas leak in the office. The fire department finds the cause of the leak and the employer is required to upgrade the gas lines. The manager gets upset at the cost to fix the leak and fires the employee.
  1. An employee informs her manager that work vehicles are unsafe and not maintained properly. The manager, rather than fix the work vehicles, decides to fire the employee as a means to keep her from complaining or exposing the issues.
  1. An employee reports a severe mold problem in the workplace. As a result, the employer is forced to spend a significant amount of money to fix the mold problem. The Employee is fired as a result of reporting the issue.

Process for Filing a VOSH Complaint

A Virginia Occupational Safety and Health (VOSH) complaint of retaliation or discrimination must be filed within 60 days of the discriminatory action with the Virginia Department of Labor and Industry. If not, the complaint is likely to be dismissed for lack of jurisdiction. Following the filing of a complaint, a VOSH investigator will contact the complainant and/or his/her counsel and will initiate an investigation if all of the requirements for jurisdiction have been met.

An investigation may lead to a settlement for the employee or could lead to sustained findings. There are also civil court remedies for an employee if a sustained violation by the investigator is not found.

If you believe that your employer has treated you differently for reporting a safety and health issue or need assistance with another employment law issue 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.

by RestonNow.com Sponsor — February 13, 2017 at 4:00 pm 0

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.

Employees in the Commonwealth of Virginia have a number of forums for potentially filing a sexual harassment complaint. First, employees must determine whether the facts in their case constitute sexual harassment. The general definition of sexual harassment, according to the Equal Employment Opportunity Commission (EEOC), is that it includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”

The harassment victim can be either a woman or a man. Additionally, the harassment victim does not have to be of the opposite sex. That being said, sexual harassment does not always have to be of a sexual nature, however, and can include offensive remarks about a person’s gender/sex. Harassing an individual by making offensive comments about his or her gender can constitute sexual harassment. Additionally, when more minor comments or teasing are made on a continuing basis, a hostile work environment based on sexual harassment can arise. Additional EEOC regulations and guidance on sexual harassment can be viewed here.

Harassment Complaints for Federal Employees in Virginia

For federal employees in Virginia, the usual method of filing an Equal Employment Opportunity (EEO) complaint alleging sexual harassment is to go through their federal agency’s EEO office within 45 days of the date of the harassment. This very short deadline can usually be satisfied by initiating contact directly with a federal EEO counselor. Federal agencies will provide contact information for federal EEO complaint counselors to federal employees. The formal complaint process involving the claims of sexual harassment will follow thereafter if the matter is not resolved. There are also other less common routes for filing a federal employee sexual harassment complaint, such as filing a grievance (where permitted, but not usually recommended) and/or a complaint though the Office of Special Counsel (OSC), but these are usually not effective when compared to a federal employee’s options for filing an EEO complaint.

Harassment Complaints for Private Sector Employees in Virginia

For employees who are employed by private companies in Virginia, there are a number of potential options for filing a sexual harassment complaint depending on where they live and the size of their employer. A private sector employee employed by a company with 15 employees or more may file a complaint with the Equal Employment Opportunity Commission (EEOC), which is the most common route for those employed by private companies. The deadline for doing so in Virginia is generally 180 days, which can be extended to 300 days due to a work-sharing agreement between Virginia and the EEOC.

A private sector employee can also usually file a sexual harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees, but less than 15. Additionally, if the matter involves a government contractor, a private sector employee can also file a harassment complaint with the Office of Federal Contract Compliance Programs (OFCCP), but this complaint process is rarely used. Lastly, some counties and municipalities in Virginia have enacted harassment ordinances, such as Fairfax County and Arlington County, which also have procedures for filing complaints against employers. The deadlines for county filings can vary between 180 and 365 days depending on the county. In sum, it is important to figure out the correct forum and to file a claim well in advance of any deadlines.

Harassment Complaints for State Employees of the Commonwealth of Virginia

State employees who are employed by the Commonwealth of Virginia have somewhat different sexual harassment complaint options. These include the possibility of filing a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Opportunity Services (OEES) or the EEOC. The current Executive Order governing state employees was issued in 2014.  State employees should consult with an attorney before deciding which forum is best for their sexual harassment complaint.

Harassment Complaints for County and Local Employees in Virginia

Finally, employees of Virginia’s various counties and municipalities also have options for filing a sexual harassment complaint. They may typically file harassment complaints with the EEOC, or if covered by their county or municipality, a local claim. By far, the majority of county employees take their cases to the EEOC and then to the court, if their matter is not resolved.

Talk to an Attorney to Determine the Best Forum

It is very important to speak with an attorney before choosing a forum in which to file a sexual harassment complaint since the correct forum for filing complaints can vary based on the facts of the claim, location and size of the employer, and nature of the employer. If you need assistance with filing a sexual harassment complaint, 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 RestonNow.com Sponsor — January 17, 2017 at 1:30 pm 0

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.

What constitutes hostile work environment is often confusing. Many employees often assume that general bad behavior exhibited by a supervisor or coworker constitutes a hostile work environment claim for purposes of filing an Equal Employment Opportunity (EEO) complaint.  

Typically, an EEO complaint based on hostile work environment must involve actions taken as a result of discriminatory behavior. In other words, a hostile work environment involving a supervisor that is petty, obnoxious, mean or otherwise terrible to work for, without the element of discrimination as the basis for the conduct, is not necessarily an actionable EEO hostile work environment case.

In general, employees can and do suffer from an unpleasant work environment for reasons other than unlawful discrimination. While such conduct is inappropriate and unfortunate, it may not provide a basis for an EEO complaint. In order to show a hostile work environment for the purpose of filing an EEO complaint, employees generally need to show that:

  1. The actions taken were discriminatory or harassing against them based on their race, religion, national origin, gender, age, etc.
  2. They were subject to harassment (verbal or physical) as a result of the discrimination.
  3. The discrimination is pervasive. In other words, it persists over time.
  4. The hostile behavior is severe.
  5. The employer knew or should have known about the discriminatory behavior.

Here are a few examples of a hostile work environment:

  1. An employee, who is an older woman, is subject to constant ridicule in the office by her supervisor for work-related mistakes due to her age. Her supervisor often makes comments that “she should retire.” The employee reports the situation to Human Resources, which does not address the issues, and the supervisor continues his/her harassing behavior.
  1. An employee, who is African-American, is subject to repeated offensive racial comments at work by a supervisor in front of other employees. The employee takes the matter to the employer’s president who declines to take action. The supervisor continues his/her discriminatory behavior.  
  1. An employee, who is female, is consistently asked out on dates by a co-worker even though she has politely declined the requests. The employee then begins to receive notes on her office door from the co-worker with inappropriate remarks.  She reports the situation to her manager and Human Resources, which takes no action in the matter, and the harassment continues.

The examples of different types of a hostile work environment are too numerous to cite, but the harassing behavior has to involve discrimination based on race, religion, gender, national origin or other protected categories. Again, if a supervisor or co-worker is hostile, mean or even engages in bizarre behavior, it may not rise to the level of an actionable EEO hostile work environment case.  

If you need assistance with an employment law issue 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.

by John V. Berry — January 2, 2017 at 1:30 pm 2 Comments

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.

by RestonNow.com Sponsor — December 19, 2016 at 2:45 pm 0

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.

Private, federal and other public sector employees in Virginia have a number of options for filing a complaint of discrimination, sexual harassment, retaliation and/or an ongoing hostile work environment. The proper venue for filing the complaint depends on a number of factors, including type of employee, type of discrimination, type of employer and employee’s place of residence. When considering filing a complaint, it is generally wise to consult with an attorney given the complexities in the complaint process.

Federal Employees in Virginia

For federal employees in Virginia, the usual method of filing an Equal Employment Opportunity (EEO) complaint is to go through their federal agency’s EEO office within 45 days of the date of discrimination. This short deadline can usually be accomplished by contacting the relevant federal EEO counselor directly. The formal complaint process will follow later. There are also other, less common, routes for filing a federal employee discrimination/harassment complaint, such as filing a grievance and/or a complaint though the Office of Special Counsel (OSC), but these are usually not effective when compared to a federal employee’s options at the U.S. Equal Employment Opportunity Commission (EEOC).

Private Sector Employees in Virginia

For private sector employees in Virginia, there are a number of potential options for filing a discrimination or harassment complaint depending on where they live and the size of their employer. A private sector employee employed by a company with 15 employees or more may file a complaint with the EEOC, which is the most common complaint process. The deadline for filing a complaint in Virginia is generally 180 days but can be extended to 300 days, because of a work-sharing agreement between Virginia and the EEOC.

In addition, private sector employees can also file a discrimination/harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees, but less than 15 (except for age discrimination claims, when coverage extends to companies that have between 6 to 20 employees). A private sector employee who works for a federal government contractor can also file a complaint with the Office of Federal Contract Compliance Programs (OFCCP), but this complaint process is less commonly used. Lastly, some counties and municipalities in Virginia have enacted discrimination/harassment ordinances such as Fairfax and Arlington, which also have procedures for filing complaints. The deadlines can vary for county filings, between 180 and 365 days, depending on county. In sum, it is important to figure out the correct forum and to file a claim well in advance of any deadlines.

Public Sector Employees in Virginia

State employees in Virginia have somewhat different discrimination/harassment complaint options. These include filing a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Opportunity Services (OEES) or the EEOC. These rules have been in flux given that they were provided by Executive Order, which have not been renewed in the past but are currently in effect.

County and Municipal Employees in Virginia

Finally, county and municipal employees in Virginia have options for filing a discrimination complaint as well. They may generally file discrimination/harassment complaints with the EEOC, or if covered by their county or municipality, a local claim. By far, the majority of county employees take their cases to the EEOC and then to the court system, if the matter is not resolved.

Overall Concerns

It is important to consult with an attorney given the complex nature of the discrimination/harassment complaint process and multiple forums since timelines for filing complaints vary on circumstance, location, size and nature of the employer.

If you need assistance with an employment discrimination issue in Virginia, 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 John V. Berry — December 5, 2016 at 2:45 pm 0

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.” (more…)

by Kimberly Berry — November 21, 2016 at 1:15 pm 0

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.

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. (more…)

by Kimberly Berry — November 7, 2016 at 1:30 pm 0

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.

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 Oct. 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. (more…)

by John V. Berry — October 24, 2016 at 2:30 pm 0

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.

(more…)

by John V. Berry — October 10, 2016 at 2:00 pm 0

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.

(more…)

by Kimberly Berry — September 26, 2016 at 2:00 pm 13 Comments

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 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 Sept. 14, 2016, a bill was introduced in Congress by Washington, D.C. Representative Eleanor Homes Norton (D) and fellow 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. (more…)

by John V. Berry — September 12, 2016 at 1:30 pm 0

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. (more…)

by John V. Berry — August 8, 2016 at 1:30 pm 0

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 (more…)

by John V. Berry — July 25, 2016 at 2:00 pm 0

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. (more…)

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