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

By John V. Berry, Esq.

There are several reasons why federal employees should hire an experienced federal employment attorney if facing a potential disciplinary action, security clearance issues, equal employment opportunity violations, whistleblower claims, investigations, or disability retirement issues.

Here are seven reasons why a federal employee should hire a federal employment lawyer when the need arises:

1. Resolve Issues Early

With a federal employment lawyer, a federal employee may be able to resolve disciplinary action, equal employment issues and security clearance matters early, before they get worse and potentially lead to removal or result in other adverse situations for the federal employee in the workplace.

2. Identity Potential Reasonable Accommodations

For federal employees with disabilities, a federal employment lawyer can help identify potential reasonable accommodations for them to assist them in making the workplace better for them.

3. Get Accurate Advice on Confusing Issues and Claims

Federal employment lawyers understand the nuances of the different statutes that govern federal employee issues before the Merit Systems Protection Board, Equal Employment Opportunity Commission, security clearance authorities at each agency and the U.S. Office of Special Counsel. These different venues/issues can be confusing and are often intertwined. Getting accurate advice is very important. A Federal employment lawyer helps to provide clarity and understanding amongst confusing claims and complex laws to help federal employee clients.

4. Identify Claims of Defenses Not Previously Considered

The complicated language of federal laws can be challenging for federal employees outside of the legal profession to understand thoroughly. There may be a basis for a defense or perhaps a separate claim against a federal agency that a federal employee is unaware of unless they have the benefit of representation by a federal employment lawyer.

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

By John V. Berry, Esq.

Noncompete agreements in the Commonwealth of Virginia have undergone some changes since 2020. It’s very important to obtain legal advice before signing a noncompete agreement since noncompete issues often arise when an employee is facing termination from employment or a decision to leave an employer.

What is a Noncompete Agreement?

A noncompete agreement is a contract in which an employee agrees to give up a right that they would otherwise have in exchange for something from an employer. An employer often ties a noncompete agreement or clause to severance payments. The general purpose of a noncompete agreement is to ensure that a former employee does not use the knowledge they have gained with an employer and then later attempt to compete against them using this knowledge.

Virginia Requirements for Noncompete Agreements

In general, a noncompete agreement in Virginia must be reasonable to be valid. An agreement that restrains competition “must be evaluated on its own merits, balancing the provisions of the contract with the circumstances of the businesses and employees involved.” Omniplex World Servs. Corp. v. US Investigations Servs, 618 S.E.2d 340, 342 (2005).

According to the Virginia Supreme Court, in order to be enforceable, a noncompete agreement must meet a three-part test. Under this test, the employer bears the burden to show that the non-compete agreement or clause is:

  1. no greater than necessary to protect a legitimate business interest,
  2. is not unduly harsh or oppressive in curtailing an employee’s ability to earn a livelihood and
  3. is reasonable in light of sound public policy.

Modern Env’Ts v. Stinnett, 561 S.E.2d 694, 695 (Va. 2002); Assurance Data v. Malyevac, 747 S.E.2d 804, 808 (Va. 2013); Gordon v. Blue Mt. Therapy, 2021 U.S. Dist. LEXIS 105432 (W.D. Va. June 4, 2021).

Determining the enforceability of such an agreement “requires consideration of the agreement in terms of function, geographic scope and duration, with these factors considered together.” Home Paramount Pest Control Cos., Inc. v. Shaffer, 718 S.E.2d 762, 764 (Va. 2011).

When applying these tests in Virginia, the courts have become more employee friendly in recent years. Noncompete agreements that are too vague or cumbersome may be invalidated. Courts are more likely to enforce noncompete agreements that are reasonable, have a limited geographic scope and are precise in their terms.

Virginia Recently Barred Noncompete Agreements for Low-Wage Workers

Virginia has also added new protections for low-wage workers, exempting them from noncompete agreements. As of July 1, 2020, Virginia now prohibits employers from placing noncompete restrictions on low-wage employees. This law only applies to noncompete provisions that came into effect on or after July 1, 2020. See Virginia Code § 40.1-28.7:8.

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When noncompete issues arise, it’s important to get legal advice early and not wait until issues develop. These types of agreements, even if already in effect, may be renegotiated. If you are employed in Virginia and have signed or are considering signing a noncompete agreement, you should seek the advice of a qualified Virginia employment lawyer.

If you are in need of advice regarding noncompete agreements or clauses, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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

By Kimberly H. Berry, Esq., www.berrylegal.com

Many employees that leave or are terminated from their employment in Virginia enter into severance agreements. Most employees in Virginia are considered “at will,” which generally means they can be terminated or resign at any time. Even if these employees are “at will,” an employer may offer severance to an employee in exchange for an employee’s waiver of their rights, including the right to file suit for any work-related issues (e.g. discrimination/harassment claims).

In the absence of an employment contract, an employer usually has no obligation to provide an employee severance pay. If severance pay is offered, an employer will always require that the employee sign a severance agreement, which will include a general release of liability. It’s very important to obtain legal advice before signing such an agreement.

What is a Severance Agreement?

A severance agreement is simply a contract between an employee and an employer that spells out the terms of an employment departure. Severance agreements can be offered in cases of terminations, resignations, layoffs or in other situations.

In order for a severance agreement to be valid, it must typically provide something of value to the employee. For example, in most cases, financial benefits are provided to the departing employee by an employer in exchange for a waiver of the employee’s rights. Often, an employee receives continued salary for a period of weeks or months in exchange for a release.

The terms of a severance agreement are generally negotiable between the employer and employee (and their attorneys).

Areas of Consideration in Severance Agreement Terms

Some of the issues that can be bargained over in severance agreement include, but are certainly not limited to:

  • Financial terms for the departing employee
  • The clearing of termination or other discipline from an employee file
  • Agreed to reference letters or contact points
  • Non-compete clauses
  • Non-solicitation clauses
  • Non-disparagement clauses
  • Non-disclosure clauses
  • Re-employment/re-hiring clauses
  • Health benefits
  • Unemployment compensation issues
  • Description of claims waived
  • Preservation of trade secrets

Each severance agreement is different, and an employee can typically benefit in negotiating the specific terms involved with the employer.

Before an employee enters into a severance agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the severance agreement. An employee will want to ensure that they know what they are signing and any potential admissions that they are making.

Conclusion

If an employee needs assistance in negotiating a severance agreement 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 or follow us on Twitter.

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

By John V. Berry, Esq.

A reasonable accommodation is a modification to employment conditions or work practices that provides employees with disabilities equal opportunity at employment.

Reasonable accommodations apply to both employees and job applicants in all states and the District of Columbia. Most employees are generally covered under the Americans with Disabilities Act (ADA), but federal employees are covered under a similar law known as the Rehabilitation Act. In Virginia, employees are also covered under the Virginians with Disabilities Act. The Equal Employment Opportunity Commission (EEOC) and other civil rights governmental entities enforce these laws.

Requesting a Reasonable Accommodation

A request for reasonable accommodation can be formal or informal. Some employers have specific forms covering reasonable accommodation requests and others simply involve verbal discussions between the employee and his/her immediate supervisor or human resources department.

The most typical accommodation involves an employee who has developed a medical condition or disability that requires some changes to his/her working arrangement.

The discussion between an employer and employee is often referred to as the “interactive process,” which means that the employer works with the employee in an effort to arrive at a reasonable accommodation that does not create an undue hardship on the employer. Although the employer is not required to grant every accommodation request, the employer is required to make a reasonable effort at resolving the accommodation at issue.

Examples of Reasonable Accommodations

  • An employee develops a back disability and requests a new chair because his current chair is aggravating his back condition.
  • An employee has developed a serious medical condition and is undergoing medical treatment in the morning. She informs her supervisor that she needs an adjustment in her start time for eight weeks while she undergoes treatment.
  • An employee develops cancer and requests daily breaks at a certain time to take his medication.
  • An employee develops a disability that prevents her from performing her assigned duties so she requests a position reassignment.

For more information, the EEOC has published additional guidance on reasonable accommodations.

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If you are in need of legal representation or advice in security clearance matters, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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

By John V. Berry, Esq.

One of the larger questions in our security clearance practice over the past year and a half is whether or not the security clearance hearing process will move online permanently and what form it will take as we move to a post-pandemic world.

The clearance hearing process or personal appearance (depending on the federal agency involved) is typically the most important stage of an unresolved security clearance case where an individual is allowed to present their case in person with counsel if they choose. Depending on the federal agency, the clearance applicant or holder can present their case directly to the decision-maker, along with other witnesses and exhibits.

Pre-pandemic hearing process

Pre-pandemic, almost all federal agencies held security clearance proceedings in person. Depending on the agency, the process would vary significantly. Some agencies like the Defense Office of Hearings and Appeals (DOHA) held courtroom proceedings with administrative judges. The Department of Energy (DOE) held less formal court-like proceedings with administrative judges. Other federal agencies, such as the Department of Homeland Security (DHS), often held personal appearances before a designated decision-maker. Intelligence Community agency processes varied but were in person. The Central Intelligence Agency (CIA) and the National Reconnaissance Office typically held personal appearances that were less formal. The National Security Agency (NSA) held cases before a multi-person panel consisting of employees and advisors. In short, every federal agency was a little different, but most cases were heard in person.

During the pandemic

During the pandemic, the security clearance hearing process did not stop but began to change slightly. Cases continued to be adjudicated, and security clearances were restored or denied following the hearing or personal appearance process. Many federal agencies, like DHS, went online.

Other agencies, like DOHA, followed CDC protocol and still held many cases in person in courtrooms but began to experiment with online hearings. For the first time, a number of Intelligence Community agencies began to suggest the possibility of telephonic hearings but also offered in-person personal appearances.

Thoughts on the online hearing process during the pandemic

In general, we found that the online hearing process was useful for many clients. It definitely helped in some cases where clients were in remote locations. However, where cases required many documents to be reviewed as exhibits or had many witnesses or where the credibility of the person was at stake, we found ourselves believing that a return to in-person hearings should occur.

We think that the online hearing process is definitely helpful for some individuals but not others. In cases where credibility is not at issue, and there were a reasonable amount of documents and exhibits to be presented, online hearings could be very helpful in the future. However, where an individual is accused of being dishonest or where large amounts of documents are needed, we found that online hearings were not as useful. Decision-makers tend to get a better evaluation of an individual when they are facing them directly, as opposed to observing them online. Complicated cases are also harder to present online and should remain in person.

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

By John V. Berry, Esq.

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’s 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’s 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, it can check the websites 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 also 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.

Do properly account for time at work. We often handle issues involving a federal employee leaving early or arriving to work late — even by 15 or 20 minutes — and without adjusting his or her time records accordingly. The federal employee then gets paid for a full work day. Generally, this is not an issue until a personality conflict arises, which causes scrutiny or an investigation. However, when a time issue does arise, it can result in a time and attendance disciplinary case, along with forced repayment of funds to the government.

Do take performance improvement plans seriously. Most performance improvement plans (PIPs) are designed by federal agencies to facilitate the termination of an employee, rather than to help the employee improve work performance. A PIP is almost always used by management to demonstrate the government’s interest or steps it has taken to help an employee improve his or her performance. However, this is typically not the case. A PIP is almost always a pre-planned attempt to terminate a federal employee despite assertions to the contrary.

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

By John V. Berry, Esq.

Depending upon the security concerns involved, it can be extremely helpful when federal employees or government contractors facing security clearance issues have support from a medical professional. In security clearance matters, it’s usually very beneficial and important for our federal employee and contractor clients to consult with a medical professional if appropriate and when medical or medical-related security concerns are under review by clearance authorities.

Types of Security Concerns that Could Involve Medical Professionals

Depending upon the facts of the security clearance case, there are a variety of security concerns for which a seasoned medical professional may be helpful to a security clearance applicant or holder. One of the most common types of security clearance cases in which a medical professional may be helpful involves the psychological or mental health condition of the security clearance applicant or holder under Guideline I, Psychological Conditions, under SEAD 4 (Page 19). Medical professionals may also be of assistance when a security clearance applicant or holder has security concerns involving illegal prescription drug use and/or an alcohol-related traffic matter.

Use of Medical Professionals in Security Clearance Matters

When an individual’s security clearance is at issue, it can be very helpful to obtain a medical professional’s review of the underlying issues for use in mitigating the security concern. When such situations arise, the clearance authority will ask whether there are mitigating factors present regarding the security concerns at issue. Clearance authorities will often take reasoned medical opinions into account when considering whether or not to permit an individual to obtain or retain his or her security clearance. When this occurs, it can be important to have a medical professional’s opinion, especially if a regular physician is not available to meet with the individual to attempt to mitigate the security concerns at issue.

The following examples more clearly demonstrate when a medical professional can be of help to a security clearance applicant or holder:

Example 1: The clearance holder has had three arrests for driving while intoxicated over the past five years. In this situation, it is important to have a medical professional evaluate, counsel and respond to the types of security concerns involved. The medical professional can often outline all of the treatment options available to the clearance holder and analyze the efforts undertaken by the clearance holder to address any alcohol-related concerns or treatment. A seasoned medical professional can also render a medical opinion as to whether or not such issues are likely to reoccur and the best way the clearance holder can avoid such issues in the future.

Example 2: The clearance holder has a significant mental health disorder, and a clearance authority needs to determine whether the medical condition would affect the individual’s ability to hold access to classified information. In this situation, it is important and helpful if a medical professional can provide a reasoned medical opinion as to whether the mental health condition will be an impediment to retaining a security clearance. The medical professional can evaluate the individual’s medical history, treatment undertaken for the medical issues and issue an opinion as to how the medical condition will likely affect the clearance holder in the future. Read More

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

By Kimberly H. Berry, Esq.

Employees in Virginia are “at will,” which means they can be terminated at any time for any reason and severance is not typically required. When employment ends, however, 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 require the employee to sign a severance agreement, agreeing to a number of terms.

A severance agreement is a contract between the employee and an employer that provides end-of-employment terms between the employer and the employee. Severance agreements are often offered in termination cases, but can also be offered to employees who are laid off or who are considering retirement.

Additionally, depending on the circumstances, a severance agreement may be offered to an employee who resigns or is terminated. A severance agreement must have something of value (also referred to as consideration) to which the employee is not already entitled to be enforceable.

Employers are generally required to provide an employee time to consider the severance agreement before signing. For instance, an employee usually has a 21-day consideration period to accept the severance agreement and at least a seven-day revocation period to revoke an employer’s severance agreement if the employee is 40 years or older.

Severance agreements usually contain far more than just compensation terms. They can include any number of agreements. Some examples of possible terms in a severance agreement follow:

  • Reference information
  • Financial terms, the timing of severance payments and potential tax information
  • Continuation of health benefits
  • Unemployment compensation benefits
  • Waiver of claims against an employer (e.g. whistleblower, discrimination)
  • Confidentiality (e.g. neither side will reveal the terms of the agreement)
  • Non-disparagement (e.g. neither side will say negative things about the other)
  • The possibility of re-employment
  • Non-competition agreements
  • Preservation of trade secrets

Severance agreements will always include a general release or waiver that prohibits the former employee from filing a lawsuit against his or her employer for wrongful termination. Before an employee signs a severance agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the severance agreement.

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If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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

By John V. Berry, Esq.

In one of the first court rulings on the issue, a federal district court has dismissed a lawsuit brought by over a hundred Houston hospital employees that had challenged their employer’s COVID-19 vaccination requirement. Hospital officials had suspended a number of employees that refused to be inoculated for COVID-19, and a lawsuit was filed.

First Ruling on Forced COVID-19 Vaccinations by Employers

U.S. District Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas noted, in the opinion, that the federal government has advised that employers can require employees to get vaccines.

Judge Hughes, in rejecting the hospital employees’ lawsuit, held: This is not coercion. Methodist [Hospital] is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients and their families safer.

Furthermore, Judge Hughes referred to the lawyer’s argument that requiring employees to take the COVID-19 vaccine as being similar to medical experimentation in Nazi concentration camps as “reprehensible.”

Employees Have Option to Refuse Vaccine and Seek Other Employment

In closing, Judge Hughes held that employees had a choice between complying with the COVID-19 vaccination requirement or finding other employment. The case is likely to be appealed and more litigation in the future is likely.

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If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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

By John V. Berry, Esq.

As we move forward, employers in the United States will likely be able to require that employees entering the physical workplace be vaccinated against COVID-19, according to the Equal Employment Opportunity Commission (EEOC) in guidance issued this past Friday.

Updated EEOC Guidance

The EEOC issued updated guidance stating that federal laws do not prevent an employer from requiring workers to be vaccinated against COVID-19. As with everything, there are some exceptions. In some situations, laws may require that an employer provide reasonable accommodations to employees who, because of a disability or a religious belief, cannot be vaccinated.

As an example of this, the EEOC said, as a reasonable accommodation, an unvaccinated employee entering the workplace might potentially wear a mask, work at a social distance or be given the opportunity to telework. There is also the possibility that other federal, state and local laws could be factored into such decisions as we move ahead.

According to the EEOC, if employers choose to obtain vaccination information from their employees, they must keep such information confidential under the Americans with Disabilities Act.

Vaccination Incentives

The EEOC also indicated that vaccination incentives could be an option for employers to consider, so long as they are not deemed coercive. As the EEOC stated: “Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”

In sum, it is very likely that employers will be able to require that in-house employees be vaccinated from COVID-19 prior to entering the workplace. Many of the details will eventually be worked out, but this seems to be the clear direction that the country is heading toward.

Contact Us

If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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

By John V. Berry, Esq.

Holding or applying for a security clearance and maintaining significant investments in marijuana businesses can be a problem. We have been advising clients about this issue since some states began to legalize marijuana around 2010. Owning an investment in a marijuana company (e.g., stock, equity) (or working for a marijuana enterprise) is a reportable clearance activity for security clearance holders and applicants and can lead to the loss of a security clearance or problems in obtaining one. Investments in marijuana-related companies may constitute involvement in illegal drug activities under existing government guidelines.

This can potentially be the case even where the clearance holder or applicant does not directly choose their individual stocks. It also makes no difference if the state that the investment is located in has legalized marijuana businesses. The federal government’s current view is that an individual has a duty to know about their investments and to be knowledgeable about federal drug laws.

Federal Directives on Marijuana Usage and Investment

While there has not been new major guidance in the area of investment, Security Executive Agent Directive (SEAD) 4, effective June of 2017, provides the current basis for not granting or revoking a security clearance based on drug involvement, including investments in marijuana under Guideline H:

25. Conditions that could raise a security concern and may be disqualifying include:

. . .

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

. . . .

If an issue were to arise, an investment in marijuana businesses could feasibly fall under a number of the security concerns in Paragraph 25 (c) of SEAD 4.

Marijuana investments have been referred to as the new Tesla or other growth industry, according to the news; the urge is to invest now. However, the problem is that until the federal government changes federal drug laws or creates an exception for marijuana businesses or investment, individuals that invest or otherwise become involved in marijuana investments can put their security clearance (and career) in danger. While investments in marijuana businesses are likely less of a red flag than usage of marijuana for a clearance holder, the best advice is to avoid marijuana investments.

We have continued to see significant confusion on this issue since 2010 when a number of states started legalizing the use of marijuana. It is advisable that individuals seeking to hold or to obtain a security clearance refrain from investing in marijuana stocks until federal law or policy changes. Looking at the current standards, the biggest risk is likely knowing that you are investing directly in a marijuana business (or direct ownership), as opposed to investing in a mutual fund where a person might be unaware of such investments. The federal government will eventually change their position on marijuana, but for the moment investing in companies or stocks that are involved in the sale of marijuana could cause security clearance problems.

Conclusion

If an employee needs assistance with security clearance issues, please contact our office at 703-668-0070 or visit our website to schedule a consultation. Please also like us on Facebook or connect with us on Twitter.

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

By John V. Berry, Esq.

The federal government remains the largest employer in the Washington, D.C. area.

We represent federal employees nationwide in the Merit Systems Protection Board (MSPB) appeals process. Federal employees before the MSPB facing disciplinary action, retirement or other appeals often meet with us to discuss their options.

Since the MSPB process is essentially another form of civil litigation, we thought we would list the typical steps of an MSPB appeal for federal employees. The most common steps in this process are:

1. The Filing of the MSPB Appeal

The first step in the MSPB appeals process is for a federal employee to file an MSPB appeal. For most cases that the MSPB hears (usually, those involving serious discipline for federal employees), the deadline is typically 30 days from the effective date of the discipline to file the appeal. It is critical to file the appeal timely or it can be dismissed.

2. Judge’s Initial Order

Usually, within one to two weeks of filing the MSPB Appeal, a judge will be assigned and issue an Acknowledgement Order, which basically sets the ground rules and timelines in each case. This order is about 10 to 15 pages and provides a lot of information about the processing of the individual MSPB appeal and should be reviewed carefully.

3. The Agency Response

Usually, 20 days after the issuance of the Acknowledgement Order, the MSPB judge will require the federal agency involved in the appeal to provide their file on the case to the MSPB and to the federal employee. This file will include the documents relevant to the federal agency’s case and also their initial response to the federal employee’s appeal. It is not uncommon for a federal agency’s file to be 75 to 250 pages in length.

4. Status Conference

Most administrative judges will schedule a status conference following the receipt of the Agency Response. The general substance of these status conferences involves an initial discussion of the issues involved in the MSPB appeal and also potential settlement negotiations.

5. Asking for Discovery

Discovery is the process of obtaining documents (and other information) and taking depositions of witnesses involved in the action taken against the federal employee. Usually, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit initial discovery requests. The discovery stage is very important as it is the federal employee’s chance to seek documents, correspondence, emails, video or audio, which a federal agency possesses. One of the most important parts of the discovery process includes the ability to question, under oath, relevant witnesses in an appeal through the deposition process.

6. Pre-Hearing Submissions

Prior to an MSPB hearing, the judge will order pre-hearing submissions from each party. Usually these include the parties’ versions of the issues to be heard, the documents to be used as exhibits in the case and proposed witnesses for the hearing.

7. The Pre-Hearing Conference

Next, prior to the actual MSPB hearing, the judge will review both parties’ pre-hearing submissions and rule on witnesses, exhibits and other issues likely to come up at the hearing. A party will want to be prepared to argue their positions during the pre-hearing conference. Typically, the majority of the pre-hearing conference will be used to discuss the importance of particular witnesses and whether they will be allowed to testify.

8. The Hearing

An MSPB Hearing typically takes about one to two days, depending on the number of witnesses involved. During the hearing process, there will usually be opening statements and the examination and cross-examination of witnesses for both the agency and the federal employee. A court reporter will transcribe the testimony given. There may be closing arguments and/or written closing submissions prior to the issuance of the judge’s decision in the case. The written decision is typically issued one to five weeks after the hearing is held.

Conclusion

If a federal employee needs assistance in an MSPB appeal, it is very important to retain legal counsel familiar with the MSPB to assist you. We represent federal employees nationwide in these matters and can be contacted at www.berrylegal.com or by telephone at 703-668-0070. Please also visit and like us on Facebook or connect with us on Twitter.

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

By John V. Berry, Esq.

Virginia recently decriminalized many marijuana-related issues through legislation. As a result, the possession of limited amounts of marijuana will be legal in Virginia, effective July 1, 2021, with certain restrictions.

Many employers and employees have begun to question how this new state law will impact them. There are many questions to be answered. For instance, can employers perform drug tests on employees or fire them for using marijuana outside of work hours? This brief article will touch on the impact of the new Virginia marijuana law.

Federal Marijuana Law Remains the Same

It is critical to understand that the change in Virginia law does not affect the fact that marijuana usage remains illegal under federal law. For instance, if an employee holds a security clearance, they can quickly lose it (and their employment) for any marijuana usage (at work or at home) despite small amounts now being legal on the state level. Until Congress changes the Controlled Substances Act, marijuana remains a Schedule 1 drug (along with heroin and LSD) and a criminal offense.

Virginia Law Changes

The newly enacted law permits individuals in Virginia who are over the age of 21 to possess up to an ounce of marijuana and grow up to four cannabis plants at home. Previously, doing so was a criminal offense. Furthermore, adults who are caught with more than an ounce but less than a pound of marijuana will face a potential $25 fine. Lastly, any adults caught with more than a pound can be charged with a felony punishable by one to 10 years in prison and a fine of up to $250,000.

While sales of marijuana are illegal, the legislation permits gifting up to an ounce of the drug to any adult.

Employment Law Issues Remain with Marijuana Use in Virginia

In terms of employment law, the new law should lessen, but not end, many employer’s restrictions on employee off-hours use of marijuana. I eventually see a gradual lessening of drug testing over time for minor usage in non-critical or non-government security positions. There will be numerous exceptions to this, however. Furthermore, nothing in the new law changes the fact that employers can still enforce drug policies even though Virginia has legalized marijuana.

Breaking an employer’s policy may still result in termination. Additionally, many security clearance and safety-based occupations are subject to drug policies, which require employees to pass drug tests and can include employees in the security, construction, medical and government sectors, and others. There are many other exceptions in the legislation, 283 pages in length, which is included in the link above.

The new law also does not eliminate the ability of an employer to require that employees not be impaired by marijuana at work. Furthermore, employers could potentially establish policies stating that it will deny employment to anyone using an illegal substance under the Controlled Substance Act. Employers will also be able to establish policies that employees are not allowed to possess marijuana on employer property. Furthermore, use of marijuana is still illegal for those under the age of 21. Lastly, there may be some potential assistance for the reasonable accommodation of employees that need medical marijuana usage for medical conditions and who work for certain employers.

This is a new law, and it will take some time for employers and employees to fully sort out the full ramifications. For now, while certain amounts of marijuana usage are legal in Virginia, it doesn’t mean an employee may not be fired for using it. However, the new Virginia law will give some employers leeway to be less strict in their marijuana policies should they choose to do so.

Conclusion

If an employee needs assistance with an employment investigation or other issue, please contact our office at 703-668-0070 or visit our website to schedule a consultation. Please also like us on Facebook or connect with us on Twitter.

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

By John V. Berry, Esq.

The Commonwealth of Virginia did not have its own overtime laws until the recent passage of the Virginia Overtime Wage Act (VOWA), in Virginia House Bill 2063, signed on March 30, 2021, by Governor Northam.

Those who were able to argue for lost overtime compensation had to previously rely on federal law, the Fair Labor Standards Act, known as FLSA. While the new VOWA is similar to the FLSA, it increases costs and penalties (both civil and criminal) for Virginia employers that don’t pay required overtime to employees.

Like the FLSA, Virginia’s new overtime law generally requires payment of time and a half at an employee’s regular rate for hours worked in excess of 40 hours in a workweek. But although the law largely tracks federal standards, significant differences are likely to result in new liabilities for Virginia employers and higher damages for overtime violations for employees in Virginia who have not received their overtime pay.

The new Virginia law establishes a new formula for calculations for salaried employees in Virginia, which will yield larger recoveries in overtime cases. VOWA will also yield larger recoveries for misclassified workers. Additionally, while the FLSA has a two-year statute of limitations to bring claims — unless they are willful (intentional), which extends it to three years — VOWA expands this. VOWA extends overtime claims to three years. This will bring greater liability to employers.

Finally, VOWA presumes an employees’ ability to obtain double damages for all overtime violations. The FLSA allows employers to argue they acted in good faith as a defense to such claims. The new VOWA takes this defense away. Under VOWA, all overtime wage violations are subject to double damages (in addition to pre-judgment interest of 8% per year). Finally, VOWA goes further and permits triple damages for employees where an employer had actual knowledge that it failed to pay the overtime wages due and acted in deliberate ignorance or reckless disregard as to whether it was paying all overtime wages owed.

VOWA also includes criminal provisions against employers. Employers can be now found guilty of a Class 1 misdemeanor if the value of the overtime wages earned and not paid is less than $10,000. If the amount unpaid is over $10,000, the employer can be found liable for a Class 6 Felony charge. A felony charge can also apply no matter the amount of wages at issue for a second conviction.

There is a lot to sort out with the new VOWA overtime legislation in Virginia, but employees are going to have much stronger state claims for overtime in the future.

Contact Us

If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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

By Kimberly H. Berry, Esq.

With the rise of the COVID-19 pandemic, many federal employees have recently been giving more consideration to their retirement options. One of the more common forms of retirement matters that we handle involves the legal representation of federal employees in the disability retirement process before the Office of Personnel Management (OPM) and in the appeals process.

Federal employees filing for disability retirement with OPM are typically covered by either the Federal Employees Retirement System or the Civil Service Retirement System. There are a number of questions that a federal employee should consider as they contemplate whether to file for federal disability retirement. These considerations include, but are not limited to:

1. How serious are the federal employee’s medical issues (and are they linked to the federal employee’s position description duties)?

When making a disability retirement decision, a federal employee should keep in mind that OPM evaluates an individual’s continued ability to work with their medical condition in the context of the duties described in their position description (PD). If the medical disability is not deemed serious enough, or not fully supported by medical documentation or other evidence, and is not sufficiently linked to their inability to “usefully and efficiently” carry out their PD duties, then OPM may deny the disability retirement application.

2. To qualify, how long is the medical disability realistically expected to last?

OPM requires that a medical disability be expected to last at least one year in duration. When considering whether to file for OPM disability retirement, it is important for a federal employee to evaluate the expected duration of their medical disability. Disabilities with known shorter duration could be problematic in the application process.

3. Can the federal employee survive on a reduced annuity?

If a federal employee is considering filing for OPM disability retirement, it is important to understand that this type of retirement usually provides an individual with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that federal employees obtain a benefits estimate from their human resources representative and consult with a financial advisor about the impact of a potentially reduced annuity prior to filing for disability retirement. It is important to evaluate one’s ability to support themselves on a reduced annuity before filing for OPM disability retirement

4. Are there changes to a federal employee’s position that can be made to allow the federal employee to continue to work?

It is often the case that a federal agency will work with a federal employee to provide them with a reasonable accommodation (i.e. change in hours, duties, telework or other possible accommodations) that can make a federal employee’s current position and medical condition workable. This can alleviate the need for filing for disability retirement. As a part of the OPM disability retirement process, a federal agency is required to certify that it is unable to accommodate a federal employee’s disabling medical condition in their present position. The federal agency must also certify that it has considered them “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassignment.” Usually, this does not present a major hurdle to obtaining OPM disability retirement.

5. Do the federal employee’s medical professionals support the disability retirement application?

This is an important factor when filing for disability retirement. In most cases, physicians will be open with their patients about whether it is a good idea to keep working in their current federal employment position. Typically, most physicians are supportive of such applications.

There are at least two good reasons for a federal employee to discuss their possible filing for OPM disability retirement with their treating medical providers in advance. First, a federal employee’s health should be of primary importance and consideration when determining whether continuing in a particular position hinders or impedes their medical recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the OPM disability retirement application process.

OPM will require a physician’s statement about a federal employee’s medical condition, and the physician’s statement can often make or break the outcome of an OPM disability retirement application. Sometimes, a federal employee can seek an outside medical expert opinion to support their application for disability retirement, but it is very important to also include a longtime treating physician or other medical professional where possible.

When considering whether or not to file for OPM disability retirement, it is important to obtain the advice and representation of legal counsel. The OPM link for disability retirement is located here. You can contact our law firm through www.retirementlaw.com, www.berrylegal.com or by telephone at 703-668-0070 to schedule a consultation to discuss your individual federal employment retirement matter. Please also visit and like us on Facebook or Twitter.

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