Reston, VA

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.

With the new Biden Administration beginning in January, 2021 it is important to look at the issue of who can qualify to hold a position in the new Administration.

For several years (e.g. Bush 1, Clinton, Bush 2, Obama) there has been a consistent security clearance process in place for individuals to hold White House positions. Our Law Firm has represented individuals in the White House in the security clearance process.

Clearance Review for White House Position

For White House appointments, they will be required to undergo a security clearance review. For these types of positions, the Federal Bureau of Investigation (FBI) has been designated to conduct security clearance investigations. The individual will be asked to complete a SF-86 form (also known as e-QIP) to begin their clearance review. Once the initial forms are completed and reviewed, the individual will be interviewed by FBI investigators and a security clearance investigation will begin.

An applicant can expect a full and complete investigation by the FBI. Friends and relatives of an applicant will be interviewed, foreign contacts will be reviewed and background information will be examined. The FBI’s goal in investigating an applicant for a White House position is to attempt to determine whether they might be susceptible to any sort of influence or blackmail that might cause them to disclose classified information.

The applicant’s full background investigation will then be given to the personnel security division of the Executive Office of the President (EOP), which handles security clearance decisions. These are career officials that oversee the security clearance process. Once received, they will review the FBI investigation and make their determination as to whether or not a security clearance should be granted. The EOP decision will generally be controlling absent further action by the President.

Decision on Security Clearances for White House Employees or Appointees

While a President retains the ultimate say as to whether or not to grant an individual’s security clearance, they have usually deferred (for the most part) to clearance recommendations. There is a good reason for this. Most presidents do not want to be seen as showing favoritism towards an individual with security risks for important appointments.

For this level of appointment, if an individual’s clearance is denied, they are unlikely to be able to hold their position. In contrast to other federal agencies, White House appointees have less access to due process in contesting security clearance determinations.

While politics can play a role in allowing an appointee the ability to respond to negative clearance concerns with mitigating information, there is less of an entitlement to due process given that White House appointees serve at the pleasure of the President. This is different than the situation with career employees of the EOP that are able to respond to security clearance concerns and receive the ability to respond to adverse clearance determinations.

Conclusion

We represent individuals in security clearance matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070 to schedule a meeting to go over individual issues and potential representation.

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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 many have heard, as of July 1, 2020, the new Virginia Human Rights Act began to provide new protections from discrimination for employees based on sexual orientation or gender identity. A lesser-known form of discrimination was also prohibited as of that date, which prohibits race discrimination based on hairstyle. Governor Northam signed the VHRA into law on March 4, 2020.

The Virginia legislature, in amending the VHRA, included a ban on discrimination “because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”

Governor Northam stated, in approving the law: “It’s pretty simple — if we send children home from school because their hair looks a certain way, or otherwise ban certain hairstyles associated with a particular race — that is discrimination… This is not only unacceptable and wrong, it is not what we stand for in Virginia. This bill will make our Commonwealth more equitable and welcoming for all.” The Governor’s press release also cited to comments by Virginia Delegate McQuinn: “A person’s hair is a core part of their identity… Nobody deserves to be discriminated against simply due to the hair type they were born with, or the way in which they choose to wear it. The acceptance of one’s self is the key to accepting others.”

The Commonwealth of Virginia is now the fourth state to ban race-based hairstyle discrimination after California, New Jersey and New York passed similar laws. Colorado is in the process of enacting a similar law presently, and more than 20 other states have similar legislation proposed or pending.

This new legislation is likely to need to a 2-3 year period of adjustment as employers in Virginia start to realize that such forms of discrimination are against the law either through the complaint process or in court. A link to the new Virginia law is located here.

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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.

It is important to obtain legal advice prior to meeting with security clearance investigators when potential security clearance problems are anticipated.

When individuals have difficulties in the security clearance process or anticipate future problems, the best advice that can be given is to prepare in advance for the meeting. Preparation for the first security clearance meeting can make the difference between a government contractor/federal employee successfully obtaining/retaining a security clearance or being denied one.

Preparing for the Initial Security Clearance Investigator Meeting

One of the most important considerations in meeting with a security clearance investigator for the first time is to adequately prepare for the meeting, especially where there may be potential disqualifying security concerns. We find that most government contractors and federal employees have a general sense of potential security concerns that could arise at the time that they begin to review or complete their e-QIP/SF-86 submissions.

In the most common scenario, an individual is usually alerted to potential problems that may require preparation for the clearance process when they find that they may have to answer “yes” to a certain question and then provide formal disclosures to an uncomfortable question, such as the use of drugs or past financial debts. When these types of issues are anticipated, then one should seek counsel and prepare in advance of a meeting with a security clearance investigator.

Review Relevant Documentation

If a potential security concern exists, it is important to gather as much information and documentation one has on the issue of concern in preparation for the interview.  Such information, if useful, can be provided to security clearance investigators at the start.  At other times, the information can be useful for later in the clearance process, if needed.

For example, suppose an individual knows that they have a large outstanding debt on their credit report. If so, then that information will certainly be important to review prior to a meeting with a security clearance investigator.

Respond to the Questions Asked

In regard to meetings between government contractors/federal employees and security clearance investigators, one other issue that we run across is the tendency of some individuals to provide information not sought by an investigator.

We advise government contractors and federal employees to answer the questions asked by investigators as honestly as possible but stick to the actual questions that are posed. On many occasions, individuals can get sidetracked or provide information that is not relevant to the questions asked by an investigator, which may cause clearance difficulties later or cause frustration for the investigator.

The usual key to a successful interview is to be as responsive as possible to any areas of concern but to make the meeting with the clearance investigator as efficient as possible. Investigators tend to have many cases to review and like to focus on their particular areas of concern. The better an individual can honestly address specific issues raised by an investigator, the better the potential outcome.

When issues arise, it is important to consult with counsel to obtain the best legal advice possible in presenting one’s response to difficult questions.

Follow-up Interviews or Requests by the Investigator

A security clearance investigator may need additional information regarding potential security concerns or need to interview an individual a second time. We typically advise individuals to attempt to anticipate these requests in advance.

For example, if an investigator appears to have questions about one’s psychological issues during an initial interview, it may be helpful to attempt to obtain a letter from a medical professional soon after that shows that the psychological concerns are under control and have been resolved. Doing so in advance can save time and effort later and may resolve issues early should the investigator come back with additional questions.

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If you are in need of security clearance 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.

We represent individual government contractors (typically private employees that work for government defense contractors) in debarment cases before federal agencies, like the Department of Defense and many others agencies.

What is a Debarment?

Debarments (and shorter term suspensions) are government actions taken under the Federal Acquisition Regulation (FAR) to protect the government’s interest from contractors that have been alleged to be irresponsible. Suspensions result in temporary contractor ineligibility to work on government contracts, usually occurring during an investigation or during other ongoing legal matters. Debarments can last a period of years. Suspensions and debarments are not for the purpose of punishing a government contractor, but for protecting the public.

Some government contractors can have both debarment and security clearance issues.

Effect of Debarments and Suspensions

Debarments and suspensions have a significant impact on individual government contractors. These often include removal from their government contract employment (and potential termination from employment) and potential security clearance issues. Government contractors that are debarred, suspended or proposed for debarment are not eligible to receive contracts, unless a compelling reason exists, which can be a very high bar to meet.

The government takes a straightforward approach to debarment and there is a robust response process. Of late, the government has also seemed to take a more assertive approach in debarment or suspension of individuals that are under the suspicion of wrongdoing, even if they have not been convicted of any crime.

Common Reasons for Debarment (of Suspension of Eligibility)

The most common reasons for debarment or suspension can often include:

  • Criminal Convictions or Pending Charges
  • Civil Judgments and/or Liens
  • Evidence of Crimes
  • Specific Misconduct (e.g. time and attendance mischarging)

Debarment/Suspension Process

At the start of the disbarment process, the government will issue a show cause letter requiring a government contractor to demonstrate why they should not be suspended or debarred. These proceedings are completely relatively quickly and individual government contractors must respond in order to avoid a negative outcome.

A debarment or suspension proceeding is similar, somewhat to a security clearance proceeding. The government will generally provide a show cause letter to the individual pursuant to the FAR, an initial chance to respond to the allegations, along with a memorandum in support of proposed debarment. If the matter proceeds, the individual contractor will have to respond to a Notice of Proposed Debarment from the government.

Responding to Debarments

In responding to a notice of proposed debarment, it is important to fully address all allegations of misconduct or impropriety, through counsel. We often find it helpful to submit letters of support on behalf of the individual, awards, commendations and other materials which demonstrate the character and integrity of the individual.

Additionally, cooperation in related investigations, completion of ethics training in a relevant area, acceptance of responsibility and other mitigating arguments should be made to the Debarring Official in an effort to convince them that debarment is not needed or that mitigation is appropriate.

Following the response period, a decision will be rendered by the Debarring Official. The Debarring Official can uphold, mitigate or terminate the Debarment. If a negative finding is reached, leaving the person in a debarment status, that finding will be placed in the debarment database, known as the System for Award Managements (SAM). Further, if a negative finding is upheld, there is sometimes the ability to seek reconsideration of a negative debarment finding. The process can involve contacting the Debarring Official with new or other evidence and seeking to reduce the debarment. It is important to have legal representation in this process.

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If you are in need of 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.

The Federal Erroneous Retirement Coverage Corrections Act (FERCCA) was enacted in September, 2000 and designed to provide relief to federal civilian employees who were placed in the wrong federal retirement system for at least three years of service after December 31, 1986.

Typically, FERCCA errors arise when a federal employee experiences a break in service, especially during the mid-1980s when the Federal Employees Retirement Systems (FERS) plan was created. In some cases, FERCCA has provided federal employees and annuitants placed in the wrong federal retirement system with the opportunity to choose between FERS and the offset provisions contained within the Civil Service Retirement System (CSRS).

In order to determine if you are in the correct federal retirement plan, you need to know the type of appointment you have and your work history. Federal retirement rules governing retirement plan placement are complex and contain many exceptions that are hard to follow. If you find that you fit in any of the situations described below, you could be in the wrong federal retirement system. However, keep in mind that there are exceptions to the general rules.

If you currently have CSRS coverage, then you may be in the wrong plan if:

  • You worked for the federal government before 1984, but not on a permanent basis
  • You left federal employment for more than a year at any time after 1983
  • You have a temporary appointment limited to a year or less, a term appointment, or an emergency indefinite appointment
  • You have no federal civilian employment before 1984
  • You do not have a career or career conditional appointment and you work on an intermittent basis (see the work schedule block on your SF-50)

If you currently have CSRS Offset coverage, then you may be in the wrong plan if:

  • You have a temporary appointment limited to a year or less, a term appointment, or an emergency indefinite appointment
  • You have no federal civilian employment before 1984
  • You do not have a career or career conditional appointment and you work on an intermittent basis (see the work schedule block on your SF-50)
  • You did not work for the federal government for a total of five years before 1987 (not including your military service). Exception: If you worked under CSRS, left the federal government, and your agency placed you in CSRS Offset upon your return, your CSRS Offset coverage is probably correct if you had five years of federal government service when you left.

If you currently have FERS coverage, then you may be in the wrong plan if:

  • You have a temporary appointment limited to a year or less
  • You do not have a career or career conditional appointment and you work on an intermittent basis
  • You have worked for the federal government for at least five years before 1987 (not including military service) unless you elected to transfer to FERS during a FERS Open Season or after a break in service

FERCCA can also provide 1) reimbursement for certain out-of-pocket expenses paid as a result of a coverage error (e.g., attorney’s fees, costs, etc.); 2) an ability to benefit from certain changes in the rules about how some federal service is credited toward retirement; and 3) make-up contributions to the federal employee’s Thrift Savings Plan (TSP) and receipt of lost earnings on those contributions, among other provisions.

If you think that you have a FERCCA error, you should notify your agency’s Human Resources department. Pursuant to FERCCA regulations, the federal government — upon its receipt of notice that a potential FERCCA error exists — should review your work history to confirm whether a FERCCA error actually exists and supply you with correspondence confirming the FERCCA error and other pertinent information, including benefit estimates for individuals entitled to an election option.

You should also receive a federal election form and information regarding how to receive reimbursement for your actual out-of-pocket expenses related to your FERCCA error, including attorneys’ fees. For more information, visit the Office of Personnel Management’s web site for frequently asked questions concerning FERCCA.

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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.

The U.S. Supreme Court, on June 15, 2020, by a 6-3 vote, in the case of Bostock v. Clayton County, ruled that federal law protects gay and transgender workers (or applicants) from employment discrimination. A copy of the new landmark Supreme Court case is provided here.

In short, the new court case found that “an employer who fires an individual merely for being gay or transgender violates Title VII” of the Civil Rights Act.” This is a landmark decision, the extent of which will evolve in the years to come as other courts start hearing these types of employment discrimination cases.

Why is the Ruling Important?

The major reason why the Supreme Court decision is so important is that there have been few protections against sexual orientation discrimination (even fewer for transgender discrimination) under various state laws. Less than one-half of the states have laws banning sexual orientation or gender identity discrimination (Virginia enacted one recently).

For the first time, employees in all 50 states have protections from this type of discrimination. This ruling makes it just as illegal under the Civil Rights Act of 1964 for an employer to discriminate against someone for being gay or transgender as it does for employers to discriminate against employees based on race, sex or religion.

Justice Neil Gorsuch, in drafting the Supreme Court’s decision, reasoned that while the Civil Rights Act was passed in 1964, the language used at the time by Congress had many unintended consequences at the time which have come to light over the past 56 years. Justice Gorsuch believed that the language in the 1964 law applied to gay and transgender employees:

“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

Three Justices disagreed, including Samuel Alito, Clarence Thomas and Brett Kavanaugh.

What does the Ruling Mean?

The new Supreme Court ruling means that employees (or applicants) who are fired, not hired, or otherwise discriminated against at work because they are gay or transgender, will be able to file equal employment opportunity (EEO) complaints and sue their employers in federal court for illegal discrimination.

The Equal Employment Opportunity Commission is currently revising their website to account for this new decision and their role in enforcing the decision of the Supreme Court in the 50 states.

Because the Civil Rights Act applies to employers with 15 or more employees, there remains a gap in protections for gay and transgender employees in the 25 or so states without state law protections. There is also the hope that some states that don’t specifically protect gay or transgender employees from discrimination may interpret their own civil rights laws to now include such protections taking a cue from the U.S. Supreme Court.

In short, it is the first federal step in protecting gay and transgender employees from employment discrimination. It is also long overdue.

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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.

We see many types of security clearance cases involving alcohol usage. The pandemic has not helped matters as many people have engaged in more alcohol usage while at home.

One of the most common issues that has arisen over the past few years in the context of security clearance holders or applicants involves alcohol abuse or over-consumption.

Alcohol Consumption/Abuse by Cleared Employees or Applicants

Under the security clearance guidelines, alcohol over-consumption and abuse can be a major factor in determining whether a person obtains or keeps their security clearance.

Security concerns regarding this issue fall under Adjudicative Guideline G, Alcohol Consumption of Security Executive Agency Directive (SEAD) 4. These are the guidelines that apply across the Government for security clearance holders.

Alcohol security concerns can come into play when an individual has a major alcohol-related incident. The most common issue that begins a security clearance review is a recent alcohol-related traffic incident, such as being arrested for driving under the influence. A recent event gives security clearance officials pause and makes them ask the question of whether or not it is an isolated incident or something more serious.

Security Concerns Raised by Alcohol Abuse or Consumption

When security clearance issues arise involving alcohol abuse or over-consumption, it is very important to take them seriously.

The major security concern for federal agencies that evaluate security clearances is that excessive alcohol consumption can lead to the use of questionable judgment or the failure to control impulses, both of which are not considered acceptable for purposes of access to classified information. As a result, the Government has listed alcohol-related concerns that could cause one to lose (or not get) a security clearance. Quoting from SEAD 4, these include:

“(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use disorder

(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others, regardless of whether the individual is diagnosed with alcohol use disorder

(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder

(d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder

(e) the failure to follow treatment advice once diagnosed

(f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder

(g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence.”

How to Mitigate Alcohol-Related Security Concerns

The Government has established a number of ways in which a security clearance holder or applicant can mitigate alcohol-related security concerns. They include, but are not limited to, the following:

  1. A significant amount of time has passed since the alcohol-related incident.
  2. The alcohol usage or related incident was unusual and/or is unlikely to happen again.
  3. The individual acknowledges their alcohol issue and provides evidence to show that they have overcome it or are seriously working on the alcohol issues through treatment.
  4. The individual has completed a treatment program and established a pattern of modified consumption or abstinence.

Alcohol consumption security clearance issues can involve many different variables so seeking experienced counsel is critical; every case is different. The key for successfully handling alcohol-related security clearance issues is to focus on them as early as possible.

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If you are in need of security clearance law 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.

The Merit Systems Protection Board (MSPB) is an appeals forum for federal employees and former federal employees to challenge various types of federal agency actions, such as serious disciplinary actions (adverse actions), retirement appeals, whistleblower matters and other types of cases. The most usual type of appeal for federal employees involves filing an appeal over a serious disciplinary action, such as removal from the federal service.

During an appeal a federal employee can choose to be represented by an attorney or not be. In almost all cases, however, the federal agency will be represented in the appeal by an attorney. This article discusses some of the reasons for retaining an attorney familiar with the MSPB process to assist you in an appeal. In other words, the reasons why it is important for a federal employee to retain an MSPB attorney. Here are some reasons why it is important for a federal employee to retain an MSPB lawyer for their appeal.

Federal Agencies Treat MSPB Cases Differently When an Employee Has an Attorney

One of the reasons why it is important to have an MSPB experienced attorney representing a federal employee is that it will very likely make a difference in how the federal agency treats the MSPB appeal at issue. Federal agencies allocate their attorney resources first to cases where an individual has their own attorney. Those cases tend to get the most attention because there are attorneys on both sides of the appeal.

In other words, where an appellant has their own attorney, the federal agency involved will focus more on that individual’s appeal merely because they have an attorney. This focus can help to settle MSPB appeals.

The MSPB Process is Much Like a Regular Court Case

One of the most important reasons why it is important to have an MSPB attorney represent a federal employee in the appeals process is the fact that it is a very serious type of appeal, functioning much like a court case. There is a general misperception that the process is designed for an employee to effectively represent themselves. An MSPB appeal functions much like a civil court case where there is discovery, the taking of depositions and the filing of briefs.

It is critical that an appellant have counsel to assist them in these difficult and sometimes complex processes. It is often the case where federal employees discovery this fact late and we are contacted after discovery deadlines have passed which can make appeals much more difficult to prevail in and/or settle. It is important to have an MSPB attorney early in the process.

Having an Attorney Can Increase the Chances of Settlement

Federal employees who retain attorneys in the MSPB process, in our experience, are more likely to resolve their MSPB appeals. Part of the calculation by federal agencies, in determining whether or not to settle MSPB cases has to do with risk. Federal agency attorneys evaluate the risk of losing an appeal (a risk which increases when an employee has an attorney), but also other types of risks including the risk of adverse information being disclosed through discovery.

Individuals without counsel can run across difficulties such as how to format discovery requests or take depositions which can limit the amount of critical information uncovered in an appeal. This can decrease the chances of settling an MSPB appeal. MSPB lawyers are also able to understand and work out the legal terms of a settlement agreement with federal agency counsel to minimize risk and to attempt to ensure compliance with settlement agreements.

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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.

Employers have started to see the first lawsuits by employees and customers related to the COVID-19 pandemic.

The numbers of these types of cases will only continue to increase, given the lack of a cohesive strategy by federal and state governments in dealing with the reopening of businesses and the potential for liability. Hopefully, Congress will deal with this problem quickly and compromise. As of June 12, 2020, according to a tracker of COVID-19 cases, approximately 2,700 COVID-19 lawsuits have been filed.

The First Lawsuits Have Started

The first COVID-19 related lawsuits seen thus far include a class action by McDonald’s workers and a wrongful death action filed by a Safeway employee’s family. Many other lawsuits have been filed, both small and large, and we are starting to see employers require employees to sign waivers in order to return to work, and other businesses and events requiring individuals to sign waivers before entering.

For instance, some businesses have required individuals to sign waivers of legal rights to enter gyms or salons or to attend other events. For example, at the President’s campaign rally in Tulsa, Oklahoma attendees were required to waive their right to sue the campaign in the event they contracted COVID-19 at the President’s campaign rally.

Employers are Seeking Liability Protections

The question of whether a business is liable if their employees or customers catch COVID-19 has become a critical issue as many states reopen retail, foodservice and other businesses. Businesses contend that they are subject to numerous lawsuits without any liability protections and are seeking legal protections from Congress, or even individual states, as the pandemic subsides. On the other side, opponents of liability protections argue that limiting liability for businesses could cause them to ignore safety rules, endangering both employees and customers.

A Compromise is Very Likely

It is likely that a compromise will be found, through congressional action, or worst case, on a state-by-state basis. There will need to be a balance between the protection of employees and customers and in ensuring that businesses do not go bankrupt through needless and often frivolous litigation. It is likely that these liability protections may find themselves in pending congressional bills which provide additional financial relief to individuals and businesses affected by the pandemic. In the end, businesses and employers that act reasonably will likely be mostly safe from litigation.

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If you are in need of 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.

The Commonwealth of Virginia enacted a number of new employment laws this year, completely transforming employee rights as never before.

One of these new employment laws in Virginia involves providing Whistleblower rights for employees. In the past, employees had to rely on a very weak system of whistleblower protection that was developed through the courts and case law. Essentially, there was little protection for those terminated for blowing the whistle on an employer’s illegal conduct. That has now changed and this article discusses the new Virginia Whistleblower legislation.

Virginia’s New Whistleblower Law

Virginia’s new whistleblower law, enacted in House Bill 798, was sponsored by State Delegate Karrie Delaney, was signed into law on April 11, 2020, by Governor Ralph Northam and becomes effective on July 1, 2020.

The new law prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee or from taking other retaliatory action with respect to the employee’s compensation, terms, conditions, location or privileges of employment.

How an Employee May Be Protected Under the Whistleblower Protection Law

An employee may be protected by Virginia’s new Whistleblower Protection Law if they:

(1) Report in good faith (or cause another employee to report in good faith) a violation of state law, federal law, or regulation to a supervisor, law enforcement or to any governmental body (e.g., Fairfax/Arlington County, City of Alexandria, federal government authorities).

(2) Are asked by law enforcement or a governmental body to participate in an investigation, hearing or inquiry.

(3) Refuse to commit a criminal act for the employer that would expose the employee to potential criminal liability.

(4) Refuse an employer’s order to perform an act that would violate any federal or state law or regulation (and explain to their employer that their refusal is based on potentially violating the law).

(5) Testify before law enforcement or a governmental body if it is connected to an investigation of an employer’s unlawful conduct.

Employee Remedies

If an employee is subject to whistleblower retaliation, then she/he may file a lawsuit within a year of the retaliation. Courts in Virginia may issue an injunction against the employer’s retaliation, reinstate a wrongfully terminated employee, provide appropriate backpay, attorneys fees and compensation and costs.

The law is new and more complex than provided in this article so it is important to obtain legal advice if a suspected case of retaliation develops.

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If you are in need of employment law 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.

The pending decisions by the Fairfax County Public Schools (FCPS) and Arlington County Public Schools (APS) about in-person instruction in the fall due to the COVID-19 pandemic have been an important issue for many individuals in Northern Virginia.

A number of families recently filed a complaint against FCPS on May 8, 2020, alleging a systemic lack of instruction given to Fairfax students with disabilities or special education needs. The complaint appears to be one of the first complaints on behalf of special needs students affected by online instruction and the pandemic. A federal class action was recently filed in court alleging similar issues against the Commonwealth of Pennsylvania in a recent lawsuit.

The Recent FCPS Issues and Complaint

Given recent news, Governor Ralph Northam is re-opening public schools in the fall, leaving significant discretion to counties. Individual counties will have significant flexibility in re-opening their schools.

Those families with special education needs and Individual Education Plans (commonly known as IEPs) are especially concerned. These students are substantially more affected than other students due to the lack of in-person instruction in schools. As a result, Fairfax County families filed a complaint against FCPS with the Virginia Department of Education (VDOE), alleging a failure to provide equal learning opportunities to students with disabilities during the COVID-19 pandemic.

Some of the examples cited in the May 8, 2020 complaint included requiring special education students to follow online classes for only portions of the day. Many students, given their disabilities, were unable to do so. Other students with disabilities were allegedly told that their specialized instruction would only begin when in-person school re-opens.

Federal Law Requires Protection of Those with Disabilities

There are several laws that protect students with disabilities. Principal among these is the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.§ 1400. Pursuant to federal law, children with learning disabilities must receive specialized instruction in order to provide them with a level playing field with those that do not suffer from such disabilities.

IDEA is a law that makes available a free appropriate public education to eligible children with disabilities throughout the nation and ensures special education and related services to those children. IDEA governs how states and public government agencies provide early intervention, special education, and related services to the almost seven million eligible children with disabilities.

However, according to the complaint the problem has been that FCPS was allegedly “pausing” such education until schools physically re-opened. As of this writing, there were at least three federal court cases filed in different jurisdictions nationally against other school systems regarding the lack of specialized instruction for special education students under IDEA. Further delays or curtailing of in-person special education may lead to additional lawsuits.

Difficulties Faced by Those with Learning Disabilities and Online Education

Families in the complaint have alleged that FCPS left children behind that need special education instruction behind due to the lack of in-person education. Many of the students involved in the complaint against FCPS have autism and dyslexia. While it is undoubtedly difficult for FCPS to have maneuvered these issues in March or April, there is hope that FCPS will strive to provide in-person education for healthy students, with proper protections, for those with special educational needs.

According to one of the parents of a child in the complaint, FCPS requested a delay in responding to parents’ complaint until June 11, 2020, which was granted. However, FCPS may have submitted their response past the business hours deadline on June 11, 2020. It is unknown whether VDOE will accept an after-hours response as of this writing.

Conclusion

Findings in the complaint by VDOE are due on July 7, 2020, unless further delays occur. Hopefully, FCPS, APS and other school systems will address the needs of affected special needs students. If interested in the complaint process or for more information, parents can contact VDOE here.

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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.

Given the pandemic, and the current state of the economy, many employment lawyers for businesses and employees are preparing for a number of lawsuits related to COVID-19. There are many different types of potential employee civil claims that will ultimately arise as a result of the pandemic, the economy, layoffs and terminations.

The following are just a few examples of the type of litigation that may be on the horizon.

Negligence Claims Against Employers

One of the first types of claims that we expect to see in the near future are lawsuits filed by employees related to them getting sick from COVID-19.

It is likely that we will see some employees claim that they were subjected to work-related risks and were infected by COVID-19 as a result. It is too early to see whether or not Virginia, different states or the federal government will enact legislation limiting liability for these employers. Some of these claims may likely be based on employers that did not follow the letter of Executive Orders from the Governor or other relevant government medical authorities.

Some states may decide to make employers immune from such liability by expanding workers’ compensation coverage to make it easier to claim injuries without proof that it occurred at work. This would essentially shift liability from businesses to the state or create a hybrid solution. Businesses are likely to need this type of relief from the state.

Discrimination Claims Against Employers

One of the other types of claims that we are likely to see by employees involves discrimination claims with respect to pandemic-related terminations and layoffs. These are likely to be claims arguing that some employees were retained or terminated in a discriminatory fashion. For instance, we may see arguments that retention of employees was illegally based on race or sex.

Claims for Unpaid Wages

Another area that we are likely to see employee lawsuits filed over involve unpaid wage claims related to the pandemic.  Many employers have been adversely affected and became insolvent immediately, unable to pay employees. Other employers may have thought that they could delay payment of wages to employees during the pandemic, which is illegal.  In either case, a number of employees are likely to file such claims in the coming weeks and months.

Contact Us

It is too soon to tell all the ways in which the pandemic will affect employer-employee claims, but they are likely coming in the near future. If you are in need of employment law 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 Berry

Our law firm handles many different types of federal retirement issues in our representation of federal employees.

One of the more common types of retirement cases that we often handle involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management.

Federal employees filing for disability retirement are typically covered under the Federal Employees Retirement System or the Civil Service Retirement System.

Federal employees should consider the following questions before they pursue OPM disability retirement:

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, keep in mind that OPM evaluates your continued ability to work with your medical condition in the context of the duties described in your position description. If the medical disability is not deemed serious enough, or not fully supported by medical documentation and evidence, and is not sufficiently linked to your inability to “usefully and efficiently” carry out your job duties, then OPM may deny the disability retirement application.

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 disability retirement, it is important for you to consider the expected duration of your medical disability. Disabilities with known shorter duration could be problematic for you in the application process.

Can a federal employee survive on a reduced annuity?

If you are considering filing for OPM disability retirement, understand that this type of retirement usually provides you with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that you obtain benefit estimates from your human resources representative and consult with a financial advisor about the impact of a potential reduced annuity prior to filing for disability retirement.

Are there modifications to a federal employee’s current position that can be made to allow the federal employee to continue to work?

Oftentimes a federal agency will work with you to provide you with a reasonable accommodation (i.e., change in duties, hours, telework or other adjustments) that can make your current position and medical condition workable. This can often be the best solution, even if it is only a short-term solution.

As a part of the disability retirement process, the federal agency is required to certify that it is unable to accommodate your disabling medical condition in your present position. The agency must also certify that it has considered you “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.”

Do your medical professionals believe that you should not continue in your current position?

This is an important consideration 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.

There are at least two reasons to discuss a possible filing for OPM disability retirement with your treating medical provider(s). First, your health should be of primary importance and a consideration when determining whether continuing in a job hinders or impedes your recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the disability retirement application process with OPM.

OPM will require a physician’s statement about your medical issues, and the physician’s statement can either make or break the outcome of your disability retirement application.

When considering OPM disability retirement, it is important to obtain the advice and representation of legal counsel. 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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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.

Many Virginians have recently found themselves laid off or otherwise out of work due to the impact of the COVID-19 pandemic. As a result, unemployment compensation benefits are needed like never before. This is a short article on the unemployment claims process in Virginia and benefits in light of new legislation.

Benefits for affected employees can be sought through the Virginia Employment Commission (VEC). Employees who have been laid off, terminated or otherwise had their hours reduced can qualify. Here is a link to the VEC directions for initiating a claim.

Changes to Unemployment Claims Related to COVID-19

On March 12, the U.S. Department of Labor (DOL) also provided additional guidance to state unemployment agencies interpreting unemployment benefits related to the COVID-19 pandemic. The DOL offered states guidance in being flexible in awarding unemployment compensation to those affected.

As of March 15, the Commonwealth of Virginia waived the one-week waiting period for the unemployed to receive unemployment benefits. The effect of this change is that out of work Virginians can receive unemployment compensation benefits sooner.

Another change is that a claimant in Virginia has usually had to show that they were actively seeking new work, but Virginia changed this requirement in light of COVID-19 for obvious reasons.

Lastly, Virginia is in the process of making unemployment compensation benefits available to the self-employed (1099 and Gig Economy workers) pursuant to an order from Governor Northam.

To file for unemployment compensation in Virginia, please apply at www.vec.virginia.gov. It is also recommended to file as soon as possible so that benefits can start as soon as possible.

Contact Us

If you are in need of employment law 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.

Many security clearance holders and future applicants have been affected by the COVID-19/Coronavirus pandemic, most often in connection with their overall financial situation or credit. This article discusses the potential security clearance implications of the Coronavirus/COVID-19 for security clearance holders and applicants.

Financial Issues

The most common security clearance concern for clearance holders, even before the pandemic, involved financial issues. The current COVID-19 crisis will directly impact these types of security concerns. Individuals will likely face potential financial losses, bankruptcy, bad credit or unmanageable debt as a result of the crisis.

These types of issues fall under Guideline F, Financial Considerations pursuant to Security Executive Agent Directive 4 (SEAD 4). SEAD 4 provides the Government’s security clearance guidelines that adjudicators review in evaluating whether or not to grant a security clearance. Financial concerns usually include bad credit, unpaid debts, unpaid taxes and other related financial issues.

It is very likely, due to the existing and future disruptions in business and work that many individuals could be laid off or lose their jobs if the COVID-19 pandemic lasts for an extended period of time. We may very well be entering a recession right now given the number of jobless claims that have recently been filed.

With these recent layoffs, individual finances are clearly going to be negatively impacted. An economic downturn and loss of work can have massive financial implications for many government contractors and other private-sector employees in a relatively short period of time. If individuals are laid off, it is often the case that they find themselves financially underwater within a month. As a result, these individuals are often unable to pay their mortgage, rent, car loans, consumer credit loans or other major bills.

These types of issues affect security clearance holders as debts which result from such a recession are not easily rectified immediately even when new positions requiring clearances become available. We still have clients who lost a majority of their investments during the Great Recession between 2007 and 2009 who still have to address financial issues in connection with their security clearances. In other words, COVID-19 may lead to a downturn which can have a major effect on security clearance holders or applicants for a long period of time.

The COVID-19 Crisis Will Most Certainly Be Viewed as Unique and Mitigating

In terms of security clearances, there is good news for clearance holders, applicants and future applicants. Clearance adjudicators recognize that major shared events, like recessions, are unique in nature which can help to mitigate those security clearance concerns. COVID-19 related financial issues and any downturn would almost certainly fall in this category.

Specifically, SEAD 4, under Guideline F, Financial Considerations, provides mitigation to those facing security concerns related to debts, credit and other financial issues. SEAD 4. Paragraph 20(a) provides as mitigation that “the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur…” Furthermore, Paragraph 20(b) states, as a key mitigating factor that “the conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency… and the individual acted responsibly under the circumstances.)”

There is no reason to doubt that security clearance adjudicators will give serious consideration to mitigating financial-related security clearance concerns related to debts, bankruptcy and taxes as they have done in the past as it relates to losses occurring as a result of the COVID-19 pandemic.

Our general advice to security clearance holders is for them to keep on top of their finances, work with creditors (even if they are uncooperative) if they are laid off or lose their jobs and keep copies of all documents and their attempts to resolve debts or otherwise appear to act responsibly. Even if a creditor doesn’t act reasonable, copies of records showing that the individual tried to do their best in a difficult financial situation is often very helpful.

Contact Us

If you are in need of security clearance law 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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