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

By John V. Berry, Esq.

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

Types of Security Concerns that Could Involve Medical Professionals

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

Use of Medical Professionals in Security Clearance Matters

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

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

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

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

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

By Kimberly H. Berry, Esq.

Employees in Virginia are “at will,” which means they can be terminated at any time for any reason and severance is not typically required. When employment ends, however, an employer may offer a severance package to an employee in exchange for the employee’s waiver of rights.

However, employers, in the absence of an agreement or severance policy, generally have no obligation to provide employees severance pay. If severance pay is offered, an employer will require the employee to sign a severance agreement, agreeing to a number of terms.

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

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

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

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

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

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

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

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

By John V. Berry, Esq.

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

First Ruling on Forced COVID-19 Vaccinations by Employers

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

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

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

Employees Have Option to Refuse Vaccine and Seek Other Employment

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

Contact Us

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

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

By John V. Berry, Esq.

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

Updated EEOC Guidance

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

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

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

Vaccination Incentives

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

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

Contact Us

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

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

By John V. Berry, Esq.

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

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

Federal Directives on Marijuana Usage and Investment

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

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

. . .

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

. . . .

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

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

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

Conclusion

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

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

By John V. Berry, Esq.

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

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

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

1. The Filing of the MSPB Appeal

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

2. Judge’s Initial Order

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

3. The Agency Response

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

4. Status Conference

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

5. Asking for Discovery

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

6. Pre-Hearing Submissions

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

7. The Pre-Hearing Conference

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

8. The Hearing

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

Conclusion

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

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

By John V. Berry, Esq.

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

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

Federal Marijuana Law Remains the Same

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

Virginia Law Changes

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

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

Employment Law Issues Remain with Marijuana Use in Virginia

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

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

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

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

Conclusion

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

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

By John V. Berry, Esq.

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

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

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

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

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

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

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

Contact Us

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

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

By Kimberly H. Berry, Esq.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

Government contractors, federal employees and military personnel holding security clearances have a duty to self-report security issues that happen between investigations.

Not reporting timely security concerns can lead to a loss of one’s security clearance. Unfortunately, there are often uncertainties about self-reporting and when and how it applies to a clearance holder.

The Duty to Self Report

The duty to self-report was best defined by an administrative judge from the Defense Office of Hearings and Appeals (DOHA) in a 2001 case: “[I]t is the responsibility of security clearance holders to report events which negatively affect the status of the security clearance holder or the facility. [A]ny information… [which] reflects adversely on the integrity or character of a security clearance holder should be reported to security personnel to avoid compromising situations that make the security clearance holder vulnerable to coercion, exploitation, or duress.”

Examples of What Might be Reported

A reportable security concern is an incident that falls under one of the Adjudicative Guidelines contained in Security Executive Agent Directive 4 (SEAD 4). In most cases, legal counsel should be consulted to determine how to self-report an issue. The following are just a few of the more common examples of security issues that could trigger a duty to self-report:

  • An individual uses illegal drugs (including the use of marijuana even in states or countries where legal locally). This can be a very complicated security concern given the intersection of criminal law and clearance law where legal advice will definitely be needed.
  • An individual is arrested. The timing and substance of reporting this incident will be important so legal advice will be needed.
  • An individual petitions for bankruptcy. Because filing for bankruptcy bears on financial considerations under SEAD 4, the individual should likely report the filing as soon as possible to his or her security officer.
  • An individual marries a foreign citizen. Because marrying a foreign citizen can raise foreign influence issues under SEAD 4, it most likely will trigger a duty to self-report.

When Should a Security Concern be Reported?

When an individual who holds a security clearance determines that a security concern requires self-reporting, it is important to do so as soon as possible. The typical procedure for doing so is to notify one’s security officer of the security concern. The security officer may simply take note of the situation, report it or take other action.

The individual almost always feels embarrassed to self-report a security concern. However, not reporting an incident can lead to the loss of an individual’s security clearance. If an individual has questions about what should be reported, he or she should seek legal advice from an attorney experienced in security clearance law as soon as possible. There are risks to self-reporting, so it is important to seek legal counsel prior to doing so where possible.

Contact Us

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

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

By John V. Berry, Esq.

Our law firm has represented both employees and employers in employment investigations. This article discusses some of the issues involved when an employer conducts an investigation in the workplace and also issues that employees should consider.

Employers conduct workplace investigations into employee complaints typically because they may face legal consequences if confronted with allegations that they do not investigate. For example, if an employee alleges sexual harassment, religious discrimination or race discrimination at work and the claims are not investigated, an employer can be more readily held liable should litigation later occur. The same type of investigation is necessary when dealing with claims of whistleblowing and other alleged inappropriate conduct at work.

Of note, Virginia has recently added a number of new pro-employee protection laws that will make workplace investigations more likely.

Typical Steps in a Workplace Investigation

In most employment investigations, it’s common for an employer to hire an outside law firm (or occasionally use internal counsel) to conduct an employment investigation. Other employers will begin the process with human resources personnel conducting the investigation.

Once an investigator is appointed, they will start their investigation. From the employer’s perspective, their ultimate goal is to minimize their liability. While an investigator may find an individual employee at fault, the investigator ultimately wants to find and document that no fault on the part of an employer occurred. They also want to document the fact that they seriously looked into the allegations at issue.

While these vary, the following steps usually take place in an employer investigation:

  1. The investigator reviews the complaint and plans their investigation.
  2. The investigator then interviews the complainant or complainants regarding the allegations.
  3. The investigator interviews the employee or employees with knowledge of the issues in the complaint and allegations.
  4. The investigator interviews the accused employee or employees.
  5. The investigator conducts follow-up interviews of any witnesses as needed.
  6. The investigator reviews any relevant documentation, emails or other evidence involving the complaint.
  7. The investigator often concludes by issuing a final report with recommendations to an employer.
  8. The investigator or employer human resources personnel, to varying degrees, informs the complainant and/or employees under investigation of the outcome of the investigation.

Employee Representation

Depending on the employer and circumstances, an employee may have the right to legal representation during the investigative process. We assist complainants during such investigations and also defend employees accused or under investigation in the workplace for alleged misconduct. It is highly recommended that both complainants and those under investigation have legal counsel.

Results of the Workplace Investigation

Once an employer’s investigation is over, the outcome can vary. A report might be prepared, along with recommendations on actions to be potentially taken.

The investigation can result in the termination or other discipline for an accused employee or employees. The investigation can also result in a complainant filing an Equal Employment Opportunity complaint against an employer. Finally, an investigation can also vindicate an accused employee. No matter the outcome, an employer must be careful in avoiding retaliation against a complaining employee, even when their complaint is found to not be sustained. Retaliation is quite common against complainants, and employers can be held liable for retaliation when this occurs.

Each investigation is different, and different employers vary significantly in how they handle workplace investigations. Complainants and other employees should be represented throughout the process.

Conclusion

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

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

By John V. Berry, Esq.

The Commonwealth of Virginia has enacted new legislation, which now allows for public sector unions to bargain for employee rights and their conditions of employment.

On May 1, 2021, Virginia’s new law will take effect. This is a major change. Previously, localities such as counties, cities or towns were not allowed to recognize or negotiate with labor unions or associations representing their public sector employees. This new law will affect all different types of public sector employees, which will vary from locality to locality. Under the new law, the county or city has to authorize labor unions in their jurisdiction for them to exist.

Virginia’s New Labor Union Law

The new law reads as follows:

§ 40.1-57.2. (Effective May 1, 2021) Collective bargaining.

A. No state, county, city, town, or like governmental officer, agent, or governing body is vested with or possesses any authority to recognize any labor union or other employee association as a bargaining agent of any public officers or employees, or to collectively bargain or enter into any collective bargaining contract with any such union or association or its agents with respect to any matter relating to them or their employment or service unless, in the case of a county, city, or town, such authority is provided for or permitted by a local ordinance or by a resolution. Any such ordinance or resolution shall provide for procedures for the certification and decertification of exclusive bargaining representatives, including reasonable public notice and opportunity for labor organizations to intervene in the process for designating an exclusive representative of a bargaining unit. As used in this section, “county, city, or town” includes any local school board, and “public officers or employees” includes employees of a local school board.

What This Means

Collective bargaining had previously existed in a number of Virginia localities, including in the City of Alexandria, until a 1977 Virginia Supreme Court ruling that barred local governments from collective bargaining with their employees. Fairfax and Arlington counties are already studying the effects the unionization will have. Loudoun County is reviewing the new law as well. In addition, in preparation for the new legislation, Alexandria has proposed a public employees collective bargaining ordinance, including police, fire, labor and trades, and general government employees. In general, unions are not available for senior or managerial-level employees.

In sum, the new Virginia law will allow counties, cities and towns the ability to adopt ordinances recognizing labor unions and enter into collective bargaining agreements with them. The new law is not mandatory for local jurisdictions, but it allows them the ability to permit employees to have unions. If such union interest arises, counties, cities or towns must vote to adopt or not adopt an ordinance authorizing them within 120 days of receiving certification from a majority of public employees in an appropriate bargaining unit. The legislation will ultimately affect police officers, teachers, fire and other types of government employees in Virginia.

The legislation shows that the days of Virginia as an anti-union state are numbered, and this is likely the first step in what will be evolving legislation over the coming years broadening the scope of labor unions in this state.

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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 President is very likely to seek the elimination of all non-compete agreements, except those that are absolutely necessary. A non-compete agreement restricts where and when an employee can work after leaving their current job. Most employees sign a non-compete agreement before they start employment.

Why Change Is Needed

The proposed change is in response to efforts over the past 15 to 20 years where the use of non-compete agreements has gotten out of control and is beginning to cover practically every type of employee. The result has been that some employees, at even the lowest levels of a company, are barred from getting another position, even if they are terminated. It also has caused an inability for lower-wage workers to take better jobs at other employers as their skills develop. If you want to learn more about non-competes, check out this previously published article.

The President, during the campaign, stated that his goal was to:

“Eliminate non-compete clauses and no-poaching agreements that hinder the ability of employees to seek higher wages, better benefits, and working conditions by changing employers. In the American economy, companies compete. Workers should be able to compete, too. But at some point in their careers, 40% of American workers have been subject to non-compete clauses. If workers had the freedom to move to another job, they could expect to earn 5% to 10% more — that’s an additional $2,000 to $4,000 for a worker earning $40,000 each year…”

See more in the President’s Campaign Plan.

Potential Federal Changes to Non-Compete Agreements

It is uncertain whether or not federal legislation instituting a ban on non-compete agreements will pass Congress. There is also the question as to whether or not the President would use an executive order to bar government contractors from using or enforcing non-compete agreements with their employees. Presumably, the President could do so without Congress.

States Start To Limit Non-Compete Agreements

For the moment, most states allow non-compete agreements in some form. This is quickly changing and many states are reconsidering whether or not to permit (or extremely limit) non-compete agreements. For instance, California has maintained a ban on employee non-compete agreements. In addition, other states, such as the District of Columbia, Oklahoma and North Dakota allow them only in narrow circumstances.

In Virginia, non-compete agreements had long been permitted, but the courts here have made them significantly harder to enforce when they deem them unreasonable. Furthermore, Virginia, as of July 2020, enacted a partial ban on non-compete agreements for low[er]-wage employees. Low-wage employees in Virginia are currently defined as those making approximately $62,000 a year or less, so many employees will be affected.

Conclusion

While there are definitely legitimate uses of non-compete agreements, such as to protect companies from the loss of very sensitive business information and/or personnel, some have gone too far with this type of forced agreement in recent years, which has caused the current backlash. There are examples of food service workers or mechanics forced to sign non-compete agreements, forbidding them from working for others.

However, change is coming and long needed. At this point, given the number of states changing their laws, it is only a matter of time before non-compete agreements are only permissible in isolated circumstances. Non-compete agreements remain needed in some types of employment but not in the broad manner that they are being used today.

Contact Us

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

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

By John V. Berry, Esq.

We represent many employees in the workplace and individuals in administrative and civil forums. The unthinkable Capitol riot that took place on January 6, 2021, will lead to many serious consequences for the individuals who took part. While the full extent of what happened is still being investigated, there will be many consequences for those identified as being involved in the illegal riot in the Capitol.

These may include, but are not limited to the following:

1. Loss of Employment

Whether or not the individual involved is convicted, charged or just identified as being involved in the illegal activities in the Capitol on January 6, 2021, they can be fired from their employment. Private and public sector employees can be easily fired for their participation in the Capitol riots. There is no First Amendment protection for their actions.

2. Loss of Security Clearance

Aside from the issue of termination from employment, an individual that was involved and identified as being part of the Capitol riot on January 6, 2021, almost certainly will face the potential loss of their security clearance or a future inability to hold one. Whether the issue is criminal or just misconduct, individuals that hold or plan to hold a security clearance will likely have significant issues.

3. Criminal Charges

A number of the Capitol rioters have already been charged criminally for their actions on January 6, 2021. There is reason to suspect this list will grow significantly in the weeks to come as the FBI continues their work.

Depending on whether the individual is charged with (1) knowingly entering or remaining in a restricted building without law authority; (2) theft; (3) vandalism; (4) disorderly conduct; (5) violence (the murder of U.S. Capitol Police Officer Brian D. Sicknick) (or assault on a federal law enforcement officer or a member of Congress); or (6) seditious conspiracy, there are major criminal penalties that await many of the rioters.

This is just a sample of the potential criminal charges that could be filed by prosecutors against Capitol rioters.

4. Placement on the No Fly List

Another consequence that individuals participating in the Capitol riot likely did not consider is that some appear to now being placed on the “No Fly List.” The No Fly List is a list created and maintained by the United States Terrorist Screening Center (TSC) of individuals who are prohibited from boarding commercial aircraft for travel within, into or out of the United States.

Already it looks as if some individuals have had difficulties returning home from Washington, D.C. after their participation in the Capitol riot. It can be extremely difficult to ever be taken off this list after being placed on it.

5. Lawsuits

For those Capitol rioters who engaged in violence or other actions that hurt others, they are likely to face civil lawsuits when they are identified. Insurers will be unlikely to defend them so rioters will face significant legal and liability costs. Others who did not participate in violence towards others but were present may also be called as witnesses and be dragged into multi-year litigation.

Conclusion

This is just an interim list of consequences for Capitol rioters as there are a number of other potential consequences they may face in the days and months to come as a result of their actions.

The Capitol riot was a horrific event that caused at least two police officers to tragically lose their lives, more than 50 other police officers to be injured, in addition to a number of rioters who lost their own lives. Those who participated in the Capitol riot are going to face a number of legal consequences as a result of their actions.

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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 many federal employees in the workplace, including defending federal employees against proposed disciplinary actions. Despite the common belief that it’s hard to discipline or remove a federal employee, that is simply not the case. Federal employees quite often face disciplinary and adverse actions.

The following are some general tips regarding how to avoid these potential problems. There are too many to list here, but the following are some good ones to consider.

Get Along With Supervisors

Not getting along with supervisors is the leading cause of disciplinary actions for federal employees. When serious disagreements arise between a supervisor and his or her subordinate, it degrades the employment relationship, which often leads to future disciplinary or performance issues. Even in difficult situations, federal employees should do their best to be professional and pleasant to supervisors (and then find other employment or a transfer if need be). This is not always easily accomplished.

Don’t Use the Internet at Work for Personal Use

While many federal agencies are somewhat relaxed in their enforcement of these types of internet policies, it’s important to avoid using the internet for personal use while at work. Also, avoid using government-issued computers for personal use (e.g. laptops). We have represented many federal employees who are investigated for either inappropriate use of the internet (accessing inappropriate sites), misuse of government computers or in regards to too frequent personal internet use.

Often, we defend federal employees who have used the internet for Facebook, Twitter or even personal banking. It is important to keep in mind that, if an agency wants to, they can quickly determine personal usage and an investigation can start.

Avoid Using Government Email for Personal Use

It is best practice to use your personal email account for personal email correspondence. There are some exceptions. We have represented a number of federal employees who have been proposed for discipline due to misuse of their official government email account, especially with respect to certain types of content. Sometimes the federal employee’s issues involve using government email for personal use or sending inappropriate correspondence or photos. Also avoid using quotations or sayings in signature blocks when corresponding to others using your government email account.

Do Not Use Government Credit Cards for Personal Use

This happens frequently and many times it’s just mistaken use. We have represented many federal employees who have innocently used their government credit card for personal charges. Not only are many federal employees disciplined or removed for such misuse, but they can be forced to repay the funds to the government. Even if policies on credit card usage are not apparently enforced, do not use a government credit card for personal use under any circumstances. If an accidental use happens, consult an attorney to determine how to disclose this to your agency.

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