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by RestonNow.com Sponsor — June 19, 2017 at 2:45 pm 0

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

By John H. Berry

Many of our clients who are federal employees have been facing difficulties as a result of the hiring freeze enacted by the President in January. While the initial hiring freeze has been rescinded (in part), there are many restrictions still in place. These restrictions have affected our federal employment practice since we often argue for or resolve cases involving changes, transfers, desk audits and promotions. This article covers the latest on the federal employee hiring freeze and where it presently stands.

Background

The federal hiring freeze began on Jan. 23, shortly after the inauguration of the President, and covered most hiring actions for federal employees. This had the unfortunate result of causing many federal employees to take on additional jobs that were previously handled by other employees (who had left) but with no increase in compensation. In many federal agencies, it appears that federal employees are unable to perform their basic work functions given the lack of staffing. The ban was eventually lifted, for the most part, on April 12. Additionally, there has also been a lack of staffing at the appointee levels as the current administration has only appointed one third of the amount of appointees that the previous administration had in place at the same point in time.

Where We Are Now

While the original federal hiring freeze has been lifted for most agencies, some individual agencies have decided to leave the ban in place in order to reduce their number of employees. The somewhat understated goal is to reduce the size of the federal workplace. For example, despite the lifting of the ban, the EPA and Department of State currently still have varying restrictions on hiring new personnel as of right now. Other agencies have not openly continued the hiring freeze but have only been hiring on a limited basis.

In addition, since the lifting of the initial freeze, guidance has been issued intending to restrict hiring of federal employees. Other agencies, like the Department of Defense that lifted the hiring freeze, issued requirements that hiring officials comply with the intent of the OMB memorandum of April 12, which focuses on reducing the numbers of employees for agencies. In getting back to normal, following the freeze, there has also been a significant backlog of background and clearance investigations from dozens of federal departments that need employees. This will slow down the onboarding process for these employees.

We suspect that hiring will eventually increase and the policies will be liberalized somewhat, because even agencies looking to reduce their size and scope have to perform basic functions. We have run across a number of federal supervisors and other employees who have become overburdened to the point that they may leave federal government altogether because they have no assistance and are performing multiple jobs. This will eventually lead to increased hiring. It will also likely take a year in order for the federal government to get back to where it was in staffing and productivity before the change in administrations and the enactment of the hiring freeze.

If you need assistance with a federal employment issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

by RestonNow.com Sponsor — June 5, 2017 at 1:30 pm 0

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

By Kimberly H. 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 (OPM). Federal employees filing for disability retirement are typically covered under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS).

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 at www.facebook.com/BerryBerryPllc.

by RestonNow.com Sponsor — May 22, 2017 at 1:30 pm 1 Comment

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

By Kimberly H. Berry

The following are six tips that can be helpful when an employee in Virginia is facing significant employment issues like termination, discrimination or retaliation.

  • Try to Remain Calm.

It is extremely important that employees remain calm and keep their composure when facing an employment issue. As difficult as it may seem at the time, it is critical to stay calm while at work even when dealing with significant employment issues like termination, separation, or poor performance reviews. Generally, it is not helpful to argue with a supervisor over an employment issue that arises. Doing so can put an employee at risk for discipline, placement on leave, or even retaliation. In addition, employers could contact law enforcement or security if they feel the employee is irate and getting out of control.

  • Avoid Using Social Media to Talk About Employment Issues.

We advise employees not to advertise their employment issues on social media (e.g., Facebook, Twitter, etc.). Almost inevitably, when employees discuss their employment issues on social media, one of their “friends” will pass it to someone who then passes it on to the supervisor who was a party to the problem compounding difficulties for the employee at work.

  • Realize that Human Resources Supports Management.

A common misconception is that Human Resources is supposed to be a fair mediator of workplace disputes. This is not the case in 95 percent of employment issues. Human Resources is there to support management’s position in personnel matters. It is important to seek advice elsewhere before reaching out to Human Resources if an employee’s dispute involves a supervisor. HR generally tends to also pass on complaints by employees to supervisors and not treat them confidentially.

  • Don’t Use Your Work Email Account or Computer for Employment Problems.

Employees should not use their employer’s email account to send personal or private information, especially related to their employment problems. We also recommend that employees not use work computers for drafting personal documents, storing pictures or other storage. Otherwise, the information employees store on their work computers can potentially be used against them. It is often very easy to use an employer’s email account or computer for private or workplace issues, but it can hurt an employee’s employment claims later or cause them to be terminated. The employer can potentially claim misuse of a work email account or computer. If an employer begins to suspect problems with an employee, the employer may take steps to review an employee’s email account or computer. Employers also usually archive emails for each employee.

  • Don’t Talk With Co-Workers About Employment Problems.

It is important to be very careful about discussing employment problems with co-workers in the office, even if they are your friends. It is quite common for an employee to tell a co-worker about his or her employment problems with a supervisor, then the co-worker will (even inadvertently) tell another supervisor or other co-workers where it eventually makes its way back to the supervisor involved. This can result in workplace retaliation.

  • If Terminated or Separated, Get Legal Advice Before Signing an Agreement.

If an employee is terminated or separated and is presented with a severance, separation, or other settlement 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 agreement before signing it.

If you need assistance with employment law matters in Virginia or the District of Columbia, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

by RestonNow.com Sponsor — May 8, 2017 at 1:00 pm 0

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

By Kimberly H. Berry, Esq.

The recently enacted D.C. Universal Paid Leave Amendment Act could affect residents in Northern Virginia and other states who work in the District of Columbia. The Act was made applicable to most employers that are required to pay for D.C. unemployment insurance.

The Act, however, does not apply to federal or D.C. public employers. Under the new Act, employees who live in Virginia or Maryland but work in Washington, D.C. will be entitled to the following additional forms of leave:

  1. Up to eight weeks of parental leave;
  2. Up to six weeks of family leave to care for a family member; and
  3. Up to two weeks of medical leave for a serious health condition.

An employee is restricted from taking more than eight weeks of the above-mentioned combined leave in a 52-week period. During such paid leave, an employee will receive up to a maximum of $1,000 per week during the leave period.

Under the Act, an employee has an obligation to notify an employer at least 10 days in advance of the leave (where foreseeable). To receive such leave, an employee is required to submit claims to the D.C. government, which will then notify the employer. The leave benefits above are in addition to, not in lieu of, any currently paid leave benefits by the employer.

Starting July 1, 2019, D.C. employers will begin paying a new payroll tax to fund the program. Employees working in D.C. will be able to access these new benefits beginning July 1, 2020.

There has been some discussion of potential amendments or future changes to the Act, but the provisions have been passed into law. Employers are prohibited from interfering with eligible individuals’ rights for leave under the Act. Additionally, it is unlawful for employers to retaliate against employees for exercising or attempting to exercise their rights under the new Act.

If you need assistance with employment law matters in Virginia or the District of Columbia, 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.

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by RestonNow.com Sponsor — April 10, 2017 at 1:30 pm 0

Legal Insider

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

By Kimberly H. Berry, Esq.

In the Commonwealth of Virginia, most employees are considered “at will,” which means they can resign or be terminated at any time. When employment ends, an employer may offer severance to an employee in exchange for the employee’s waiver of his or her rights, including the right to sue for any work-related issues. In Virginia, 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 provide the employee with a severance agreement.

What is a Severance Agreement?

A severance agreement is a contract between an employee and an employer that specifies the terms of an employment departure. Severance agreements can be offered in cases of terminations, resignations, layoffs and/or retirement. In order for a severance agreement to be valid, it must usually provide something to the employee to which the employee is not already entitled. For example, in most cases, a certain financial sum is provided to the departing employee by an employer in exchange for a waiver of rights, usually referred to as a general release, by the employee.

In addition, in Virginia and many other states, employers are generally required to provide an employee time to consider a severance agreement before signing. The Older Workers Benefit Protection Act (OWBPA), in part, requires that an employer provide employees over 40 years of age with a 21-day consideration period, or a 45-day consideration period in the case of a large reduction-in-force (RIF), and at least a 7-day revocation period. Oftentimes, employers rush employees to sign a severance agreement and do not adhere to the procedures for severance agreements.

The terms of a severance agreement are generally negotiable between the employer and employee. However, an employee will not necessarily be told this when the employer offers the severance agreement.

Potential Considerations with Severance Agreements

Some of the issues to consider in advance of signing a severance agreement may include, but are not limited to, the following:

  • Financial terms and timing of severance payments
  • Tax issues
  • Continuation of employment benefits
  • Ability to claim unemployment compensation
  • What claims are waived
  • Confidentiality terms
  • Non-disparagement
  • Re-employment/re-hiring possibilities for departing employee
  • Scope of non-competition after leaving employment
  • Preservation of trade secrets
  • References and points of contact
  • Recommendation letters
  • Consequences of violating the severance agreement

Each case is different and an employee may need legal representation in negotiating a severance agreement. 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.

If you need assistance with 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.

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

Legal Insider

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

By John V. Berry, Esq.

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

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

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

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

If you need assistance with an employment law issue in Virginia, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

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

Legal Insider

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

By John V. Berry, Esq.

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

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

Examples Where Law Might Apply

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

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

Process for Filing a VOSH Complaint

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

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

If you believe that your employer has treated you differently for reporting a safety and health issue or need assistance with another employment law issue in Virginia, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

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

Legal Insider

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

By John V. Berry, Esq.

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

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

Harassment Complaints for Federal Employees in Virginia

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

Harassment Complaints for Private Sector Employees in Virginia

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

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

Harassment Complaints for State Employees of the Commonwealth of Virginia

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

Harassment Complaints for County and Local Employees in Virginia

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

Talk to an Attorney to Determine the Best Forum

It is very important to speak with an attorney before choosing a forum in which to file a sexual harassment complaint since the correct forum for filing complaints can vary based on the facts of the claim, location and size of the employer, and nature of the employer. If you need assistance with filing a sexual harassment complaint, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.

by RestonNow.com Sponsor — January 17, 2017 at 1:30 pm 0

Legal Insider

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

By John V. Berry, Esq.

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

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

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

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

Here are a few examples of a hostile work environment:

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

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

If you need assistance with an employment law issue in Virginia, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

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

Legal Insider

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

By John V. Berry, Esq.

Effective January 1, 2017, employees in France working for companies with more than 50 employees were given new employment rights, including the ability to negotiate terms with employers about ignoring their work emails outside of normal working hours. The new French law has been referred to as the “right to disconnect” and could trend to other countries, such as the United States.

The goal of the new French law is to stem the tide of after-work emails cutting into the modern problem of compulsive email checking after work. The French have acknowledged that employers who require employees to check and respond to emails after work has lead to insomnia, relationship issues and overall less family time. The goal of the new law is also to reduce after-work stress.

Many individuals have commented in the news about the viability of such a law taking hold in the United States. It is possible to see some changes in the future as the line between work and home life blurs through the increasing use of and advances in technology. The issue has already started to appear in the United States with some workers claiming overtime for responding to emails beyond work hours. Some U.S. companies have already voluntarily instituted “no email” policies after work hours and on weekends. It will be interesting to watch as new policies and laws about after-work emails develop in the future.

If you need assistance with an employment law issues in Virginia, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

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

Legal Insider

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

By John V. Berry, Esq.

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

Federal Employees in Virginia

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

Private Sector Employees in Virginia

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

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

Public Sector Employees in Virginia

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

County and Municipal Employees in Virginia

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

Overall Concerns

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

If you need assistance with an employment discrimination issue in Virginia, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

by John V. Berry — December 5, 2016 at 2:45 pm 0

Legal Insider

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

When an individual is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized more thoroughly.  For instance, if an individual has been previously approved for a Secret level clearance and is then submitted for a Top Secret (TS) level clearance by his or her employer, the individual could be denied based on the same concerns that existed when he or she was approved for a Secret level clearance.  This more often occurs when the individual holds a Top Secret clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.” (more…)

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

Legal Insider

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

Most employees in Virginia are considered “at will,” which means they can resign and/or be terminated at any time. When employment ends, an employer may offer a severance package to an employee in exchange for the employee’s waiver of rights. However, employers, in the absence of an agreement or severance policy, generally have no obligation to provide employees severance pay. If severance pay is offered, an employer will offer the employee a Severance Agreement.

A Severance Agreement is a contract between the employee and an employer that provides the terms of the end of employment between the employer and the employee. Severance Agreements may also be offered to employees who are laid off or facing retirement. In addition, depending on the circumstances, a Severance Agreement may be offered to an employee who resigns or is terminated. The Severance Agreement must have something of value (also referred to as consideration) to which the employee is not already entitled. (more…)

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

Legal Insider

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

The White House recently asked states to enact legislation banning non-compete agreements for low-wage workers in an effort to increase competition and improve the economy.

In a White House report issued on Oct. 25, 2016, it explained that these types of agreements often prevent out-of-work employees from finding new jobs in their career fields. The White House also stated that these non-compete agreements interfere with worker mobility.

A non-compete agreement typically bars an employee from working for a competitor or starting his or her own business once the employee leaves the employer.

The White House report cited the fact that 20 percent of U.S. workers have signed non-compete agreements preventing them from working for competitors. The figure included an approximate 17 percent of employees who do not hold a college degree.

As such, the White House is requesting that states pass bans on non-compete agreements for workers who do not possess trade secrets. Additionally, the White House is asking that states require companies to be more transparent about contracts. (more…)

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

Legal Insider

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

 What is the Hatch Act?

The Hatch Act of 1939 (Hatch Act), 5 U.S.C. §§ 7321-7326, was enacted by Congress in an attempt to keep politics out of normal government operations. The Hatch Act is a federal law that prohibits civilian federal government employees of the Executive Branch from engaging in certain political activities, such as influencing elections, participating in or managing political campaigns, holding public office, or running for office as a member of a political party.

Purpose of the Hatch Act

The Hatch Act was intended to prohibit federal employees from engaging in partisan political activity that might influence normal government activities. Government authorities typically apply the Hatch Act when attempting to curtail political activities by federal employees and supervisors while on duty.

In addition, the Hatch Act can also apply to certain state, local, or District of Columbia government employees whose principal employment is connected to an activity that is financed in whole or in part by federal loans or grants.

(more…)

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