Legal Insider: States Began to Bar Employment-Related Marijuana Screening Tests

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.

Some states are moving to not only legalize marijuana but also bar drug screening in employment for its use.

Nevada is such a state. Beginning next year, most employers in the State of Nevada will not be able to turn down a job applicant solely for failing a marijuana drug test. This is the result of a new state law, Nevada Assembly Bill 132, that is set to become effective on January 1, 2020. There is some discussion that a similar law will also be coming to Colorado and other jurisdictions soon.

Nevada’s New Law

The new law will not stop employers from testing job applicants for marijuana usage, and it will not bar them from refusing to hire applicants that test positive for other drugs. There are some exceptions to the new law.

It will not apply to physicians, emergency medical technicians, firefighters or those that have job requirements involving driving and in positions which could adversely affect the safety of others. A copy of the new law can be found here. It is likely to be the first of many similar laws that are enacted in states that have legalized marijuana usage.

Virginia Law Still Criminalizes Marijuana Use

While Nevada and other states have moved forward with decriminalizing marijuana usage and beginning to bar employment-related drug screening, Virginia still criminalizes marijuana usage. Virginia employers remain able to terminate employees for marijuana usage. Attorney General Mark Herring recently suggested changing these laws, which could be the start of a long process in Virginia.

Federal Law Remains Unchanged

Individuals should keep in mind that even as these states legalize certain drugs, these state laws have no effect on federal drug laws barring usage. Furthermore, federal employees and security clearance applicants/holders are still barred and can be fired for marijuana usage.

I suspect that this will likely change in the next 5-10 years, but at present federal employees and security clearance holders can lose their security clearances with even one-time use in a state or jurisdiction that has legalized marijuana.

Conclusion

If you are in need of employment, retirement or security clearance law representation, 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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Legal Insider: Finding the Right Employment Lawyer

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.

Finding and hiring a lawyer regarding a stressful and difficult employment issue can be quite overwhelming and intimidating for most people.

There are many things to consider when looking for the right lawyer to handle your employment matter. The below guidelines may be helpful if you are looking to hire an employment lawyer for the first time.

Obtain legal advice early

If you wait too long to obtain legal advice or assistance with an employment issue, you may hurt your chances to amicably or effectively resolve the matter. The earlier you seek legal help, the more likely you are to avoid a more complicated and costly legal problem down the road.

Research the lawyer 

When you are looking for the right employment lawyer, make sure to visit the employment lawyer’s or law firm’s website and review the attorney profiles. You’ll likely find useful information just by browsing the website’s attorney biographies, practice areas and resource sections.

The lawyer’s website may also lead you to additional resources and will hopefully demonstrate that the employment lawyer has the requisite knowledge and experience in employment law.

Of course, the website may not be the only or best resource regarding a particular employment lawyer, but researching the website is a good start and will likely lead you to one or two potential lawyers with whom to make an initial inquiry.

Provide a clear and concise written chronology of your case before the initial consultation

You’ll get more out of your consultation with an employment lawyer if you are able to provide the lawyer with a clear and concise written chronology or timeline of your matter prior to your initial consultation. Remember to include any relevant documentation that you may have.

If you provide written details and relevant documentation regarding your matter at the outset, the employment lawyer will have a better understanding of your matter at the initial consultation meeting. The employment lawyer will be able to spend more time providing advice instead of spending time trying to get up to speed on your matter during the initial consultation.

Don’t hold back important information 

If you leave out crucial information at the initial consultation or at the start of representation, the omission could affect the employment lawyer’s initial advice or strategy, subsequent representation, or ability to effectively resolve your matter. It’s best to be candid and honest about your complete story, even if the details are embarrassing.

In this way, you’ll obtain the best advice and representation. Keep in mind that the information you provide to the lawyer at your initial consultation is privileged and confidential unless you waive the privilege.

Don’t expect the matter to resolve quickly 

Legal matters typically take a long time to resolve. Do not expect to resolve problematic employment issues, especially issues that took time to develop, soon after you hire an employment lawyer.

Discuss legal fees and costs

Do not hesitate to discuss the legal fees and costs that may be involved in your particular employment matter during your initial consultation. Keep in mind that most employment lawyers do not bill their fees in the same manner as other lawyers, such as personal injury lawyers.

For instance, most employment lawyers charge for consultations and bill their time by the hour on a monthly basis. A trust or retainer deposit may also be required before representation begins.

Depending upon the type and timing of your employment matter, you may incur legal fees and expenses over a short or prolonged period of time. The employment lawyer’s fees and costs should be outlined in a detailed representation agreement.

When hiring a lawyer or any other professional such as a doctor, there will be a considerable amount of fees and costs associated with services that are provided to you.

Keep expectations realistic

Unlike big class action, accident, or other personal injury-related lawsuits, most employment matters do not typically recoup extremely high settlement or damage amounts. An employment lawyer should be honest and up-front about what you can expect in terms of a monetary and/or non-monetary resolution of your employment matter.

It’s always a good idea to discuss potential outcomes with the employment lawyer at the outset of and throughout representation to keep expectations realistic and in check regarding what you can expect in a potential monetary or non-monetary resolution of your employment matter.

Conclusion

If you are in need of employment, retirement or security clearance law representation, 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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Legal Insider: Preventing Pregnancy Discrimination

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 employees that have been affected by pregnancy discrimination. Here are some tips on the subject.

Prevention of Pregnancy Discrimination 

Pregnancy discrimination, unfortunately, is one of the fastest-growing areas of discrimination law because many employers do not understand the legal requirements that are in place to protect pregnant employees.

The following general guidance is meant to help employers prevent and appropriately deal with, as well as educate employees regarding, issues of pregnancy discrimination in the workplace.

Know Duties and Rights of Pregnant Employees 

The Pregnancy Discrimination Act makes it illegal for an employer with 15 or more employees to discriminate against an employee in all areas of employment, including hiring, firing, pay, job assignments, promotions, layoff, training and benefits (e.g., leave and health insurance). It is important for employers and employees to understand these rights.

Example: Rachel applies for a position as a pharmaceutical sales representative. She is also five months pregnant. During her interview, the hiring manager explains that the position will require a lot of walking and asks whether Rachel’s pregnancy will affect her ability to work or return to work.

Due to concerns about this issue, Rachel is not hired as a result of the hiring manager’s belief that her pregnancy will affect her ability to work. Jennifer could bring a case of pregnancy discrimination.

Providing Equal Treatment to Pregnant Employees

If an employee becomes pregnant or is unable to perform her job due to issues during and/or after her pregnancy, the employer must treat the employee the same way it treats temporarily disabled employees. Employers often misunderstand this.

Example: Employees at Smith Co. with two years of seniority can apply for promotions. Mary is excluded from an upcoming promotion process at work. She is told that her three months of maternity leave will not count towards her seniority.

At the same time, Smith Co. continues to give seniority credit to employees who take leave for temporary injuries and medical issues, such as back injuries. Mary could bring a case of unequal treatment and discrimination.

Employers Should Not Interfere with Pregnancy Leave

If an employee is entitled to request leave for pregnancy, an employer should not attempt to interfere with such a leave request. If an employee has worked for at least 12 months and the employer has 50 or more employees, then an employee may be entitled to 12 weeks of leave for pregnancy (paid or unpaid) under the Family and Medical Leave Act.

Some states (not Virginia) have additional and differing pregnancy discrimination-related laws covering smaller employers.

Avoid Making Small Talk About Pregnant Employees

One of the most common ways in which an employer gets into trouble for pregnancy-related issues at work is when a supervisor makes comments about a pregnant employee to other employees. There are a number of reasons why this shouldn’t occur, mainly due to an employee’s private medical issues, but it is also a form of discrimination.

We often see this in the context of supervisors speaking with other employees about a pregnant employee, such as commenting about whether the pregnant employee is healthy enough to work or how taking maternity leave may negatively impact the employee’s career. These types of comments can be used against employers in pregnancy discrimination claims.

Difficult Pregnancies Can Trigger Other Employee Rights

If a pregnant employee is having serious medical issues related to her pregnancy, then she may be able to ask for a reasonable accommodation (e.g., teleworking, restrictions on lifting) under the Americans with Disabilities Act. Again, this requirement, among others cited above, can be dependent on whether or not an employer has 15 or more employees.

General Tips from the EEOC

For those interested, more general tips on pregnancy discrimination can be found here in guidance from the Equal Employment Opportunity Commission (EEOC).

Our law firm represents and advises federal employees in pregnancy discrimination and other employment matters. If you need legal assistance regarding a pregnancy discrimination complaint or other employment matter, 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.

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Legal Insider: Outdated Virginia Laws that Need to be Changed

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.

While we primarily handle employment, retirement and security clearance cases, we wanted to take this opportunity to point to outdated Virginia laws that need to be changed.

This article focuses on both state and local laws in Virginia that don’t make sense or are outdated. While many of these are not enforced, it is time that they are taken off the books for good.

Here are some Virginia state laws that seem to be from a bygone era and should be repealed:

Citizens Must Honk Horns While Passing Other Cars — This law, if citizens followed it, would likely lead to accidents or road rage. I can’t recall anyone honking their horn on a highway in order to indicate they were going to pass someone, especially on the highway.

This is commonly done through the flashing of lights. Honking usually only occurs when somebody is stopped for too long in front of them or when an accident is about to occur.

Regulation of Private Life — Virginia makes it a 4th class misdemeanor to engage in sexual relations with anyone that they are not married to. The law, first enacted  in 1950, remains on the books even though it has been declared unconstitutional.

There is some debate as to whether or not the legislature refuses to act based on concerns they may upset constituents concerned with morality issues. Virginia also makes it a crime for individuals to give advice to others about engaging in inappropriate acts.

Adultery as a Crime — Under the Virginia Code, committing adultery while married is a crime and a class 4 misdemeanor. Frankly, Virginia could repeal this law and focus on realistic issues facing the Commonwealth instead of keeping a law that is unenforceable in their code.

Use of Profanity in Public — Using profanity in public is still against the law in Virginia and a class 4 misdemeanor. Some lawmakers have tried to repeal the profanity portion of this statute, but have not yet been successful. Again, this law has been declared unconstitutional, but remains a statute. I wonder how many people have committed misdemeanors under this statute over the last 10 years.

Marriage Restrictions — While most of the world has rescinded these types of discriminatory laws, Virginia has not yet gotten around to amending their Code to eliminate discrimination on the basis of sexual orientation even though the U.S. Supreme Court has left standing a ruling that the ban is unconstitutional.

Harassment by Phone or Text Message — Be sure not to text or use your cellphone to use indecent or immoral language in Virginia because it is class 1 misdemeanor. The language is so broad that practically anything you text during an argument could fall under this statute.

Outdated Local Laws

There were a number of local laws in Virginia that were outdated, but many of them have been corrected. Many of them were very interesting before they were recently fixed. This is the last one I found still on the books:

Chesapeake, Virginia — It is a misdemeanor for children over the age of 12 to trick or treat. While this has not led to a rash of arrests, the law should be repealed. There is no need to punish 13-year old teenagers for trick or treating with their younger siblings.

Conclusion

If you are in need of employment, retirement or security clearance law representation, 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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Legal Insider: When to Consult with a Security Clearance Lawyer

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 meet with federal employees and government contractors who are facing issues in the security clearance process.

They often ask our attorneys at what point they should consult with a security clearance attorney to assist, advise or represent them. The usual response is that an individual with a potential security concern should do so as soon as possible. Generally, the earlier that a person with possible security concerns consults with a security clearance lawyer, the better the odds become in avoiding a potential adverse outcome.

What Does a Security Clearance Lawyer Do?

There are a number of ways that an experienced lawyer in security clearance law can help someone with security concerns. It is often the case that they can advise an individual regarding potential strategies before a security clearance problem develops.

We have found that most individuals have a good sense as to whether or not they may have a security concern (e.g. recent drug use, bankruptcy, foreign contacts) as they prepare to complete their security clearance forms like the e-QIP, SF-86 and/or different various of the SF-85. The earlier advice is sought when there is an issue, the more that can be possibly done to mitigate the concern.

Clearance lawyers also advise individuals during the investigative process and during any security clearance responses or appeals.

Delays Can Hurt the Ability to Mitigate Security Concerns

One of the major issues that we see in the clearance process is where an individual has waited too long to consider or in starting to address a potential security clearance concern until it may be too late.

Sometimes, individuals who have had financial issues which could have been explained or refuted initially, wait too long thinking that if they lose during the clearance hearing or personal appearance that they will just retain an attorney further on in the appeals process. This is usually the worst strategy.

When people with serious security concerns have waited too long to address them, or gone through an in person response without representation, it is usually too late to do much on further appeal. One example I remember is a case where a government contractor had an alleged debt that was overdue, didn’t respond with evidence that it was not his debt thinking that he could appeal it after the administrative judge had ruled.

The debt was clearly not his, but because the clearance appeal could only be based on the evidence already presented, the clearance could not be saved.

Early Advice Can Save Embarrassment and Help Career

It is not uncommon that we anticipate a serious issue with someone obtaining a security clearance, i.e. recent arrest or recent drug use and recommend backing out of the process before a final decision is rendered. In serious cases where it looks like a security clearance may not be granted, a clearance lawyer can advise an individual about whether or not to accept the position and move forward or quietly decline and try later.

It can be the case that an individual can withdraw from the process, wait a bit more time to go through the clearance process and potentially resolve the issues later. This helps them avoid the embarrassment of taking on employment and leaving their current position only to be terminated a short time later when their clearance is not approved and they are left unemployed.

It can also help them potentially avoid having to declare a negative clearance outcome on future forms. A security clearance lawyer can also help to put an applicant’s mind at ease if they are concerned about an issue.

Legal Representation in Clearance Denials or Proposed Denials

If an interim or permanent security clearance is at risk or is denied, an individual will definitely need a security clearance lawyer. Each federal agency uses the same adjudicative guidelines but have unique procedures to that agency for processing and appealing an outcome. This is the case even though all federal agencies fall under the same Executive Order 12968.

It is also important that the individual consult with experienced counsel where they can explain any issues that individual federal agencies are particularly sensitive to. For instance, the FBI is more sensitive to prior drug use by applicants or employees and many intelligence agencies are sensitive to the potential for foreign influence; each federal agency varies.

Each federal agency usually has a written and personal appearance stage (or hearing) for those who need to appeal a denial or proposed denial in the security clearance appeals process. While different, each federal agency will provide some form of a Statement of Reasons (SOR) or Notice of Intent to Revoke (NOI) which explains, to varying degrees, the security concern(s) at issue.

An experienced security clearance lawyer will be versed in the latest agency rules governing responses and appeals before the individual agency involved and will be able to assist a person in preparing their written submission and representing them during the hearing process.

Conclusion

If you are in need of security clearance 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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Legal Insider: Getting a New Job After Termination

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 employees in Virginia who have been fired from their employment. Sometimes, our representation involves claims against the employer and/or negotiations and other times it involves the issue of how they obtain a new position in light of their termination.

The following are 7 tips to consider if an employee ever finds themselves in this particular situation.

Handle Termination Day Calmly

When an employee is terminated, it can be an extreme shock. Sometimes the reasons are known, sometimes the employee is specifically informed about the underlying issues, and other times they really cannot figure out why. In any case, it is very important to handle termination day with as much grace as possible.

Be calm, follow any reasonable instructions and be polite as you leave. Doing so will help the former employee in the future when they are applying for other work. We have represented many employees where termination day ended up badly and the employer made additional notes in their personnel record or even contacted the police.

If Wrongful Termination is Potentially Involved, Obtain Legal Advice

When an employee has been fired, it is important for them to consider all of their options. If there has been a potential illegal action taken by the employer against the employee (e.g. firing the employee for whistleblowing or based on illegal discrimination) it is important to get legal advice about whether or not to pursue any legal options about the termination.

If a wrongful termination exists, there may be ways for an attorney to resolve the matter with the company in a way that makes the employee more readily employable.

Where Appropriate File for Unemployment Compensation

If an employee is terminated unjustly, it can be worth it for them to apply for unemployment compensation while they are finding a new position. Sometimes, employers decline to object to compensation or fail to show up at such hearings. In many cases, employees can be awarded unemployment compensation even if they have been fired.

Prepare an Updated Resume

When an individual who has been fired starts the job search, it is important to work on their resume. Even though the individual has been terminated, it is important to update their resume and list all of their experience and any skills or education gained from the past employer. The sooner this is done, the quicker the ability to rebound becomes.

Write a Note to the Former Supervisor

While this may be difficult, writing a thank you note to a former supervisor can go a long way to mitigating what they may say to another employer. This can be difficult, especially if the employee was treated unfairly, but it can pay significant dividends in terms of future employability. Many supervisors, even if they fire an employee will feel some guilt in doing so.

If an employee responds with a kind letter to them, it can go a long way in mitigating any bad feelings. I find that when terminated employees take this step, many former supervisors will provide them recommendations when they apply for other positions.

Use Other Contacts as References if Needed

Sometimes a supervisor will not provide a reference for your prior employment. In that case, it is important to find others who can potentially vouch for an employee’s service during their prior employment.

For example, sometimes a former supervisor who is no longer with the employer is willing to provide a positive recommendation. In other instances, former co-workers can sometimes provide a recommendation as well.

Practice Job Interviews

When trying to get a new position after being fired, it is important to practice interview skills. It is also particularly important to be able to explain the termination if need be, and to provide other references. It is usually good advice to stay away from sounding defensive or vindictive toward the former employer in explaining the reasons for termination.

A calm and neutral explanation of the termination is usually the best strategy. However, practicing the delivery is very important.

Take an Interim Job if Necessary

Sometimes, when a termination is based on difficult facts for the former employee, it can be important to take a less than ideal employment position to bridge the gap from the termination.

Basically, in this type of situation, the employee takes a position that either doesn’t pay as much as they are used to or where they are overqualified in order to have a current position on their resume as they apply to their ideal position later. This often alleviates or minimizes future concerns from the prior termination.

Conclusion

If you are in need of employment law advice or representation, 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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Legal Insider: Types of Leave for Virginia Employees

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.

This article covers the availability of different forms of leave for Virginia private sector employees under Virginia law.

Vacation or Annual Leave

In the Commonwealth of Virginia, private sector employers are not required to provide employees with vacation or annual leave benefits, whether they are paid or unpaid. If an employer chooses to provide this type of leave to employees, however, it must comply with the terms of the employer’s established policy or employment contract.

A private sector employer must pay an employee for accrued annual/vacation leave upon separation from employment if its policy or contract provides for such payment. The courts in the Commonwealth of Virginia have not provided much guidance with respect to leave rights, so an employer is generally free to mostly develop their own annual leave/vacation leave policy.

This means that even if there is a vacation/annual leave policy, the employer could make it a “use or lose” policy or deny payment of annual leave if the employer’s policy is silent on the issue.

Sick Leave

There is no requirement for employers to provide private sector employees with sick leave benefits, whether they are paid or unpaid under Virginia law. However, if an employer chooses to provide sick leave benefits to employees, it must comply with the terms of the employer’s established policies or applicable employment contract.

That said, an employer in Virginia is still subject to the Family and Medical Leave Act (FMLA) and other federal laws regarding sick leave that must be given to an employee. Generally, under FMLA, the federal law provides certain employees with up to 12 weeks of unpaid, job-protected leave per year.

Bereavement Leave

In the Commonwealth of Virginia, the law does not require private-sector employers to give  employees bereavement leave. Bereavement leave is taken by an employee usually due to the death of a close relative.

An employer may choose to provide bereavement leave and may be required to comply with any bereavement policy or practice it maintains. Generally, however, there is no entitlement to bereavement leave.

Holiday Leave 

In terms of holiday leave, Virginia law also does not require private employers to provide this type of leave to employees. This applies to both paid and unpaid leave. In fact, Virginia employers can require an employee to work holidays.

A private-sector employer does not have to pay an employee premium pay, such as 1½ times the regular pay rate, for working on holidays, unless such time worked qualifies the employee for overtime under the governing overtime laws (e.g., Fair Labor Standards Act). If an employer chooses to provide either paid/unpaid holiday leave, it must comply with the terms of their established policy or employment contract.

Jury Duty Leave

In Virginia, a private sector employer is not required to pay an employee for time spent on jury duty. However, there is a provision of the Virginia Code which makes it against the law for an

employer to discharge or take any other adverse action against an employee for jury duty service if the employee has given reasonable notice of their required service.

In addition, an employer cannot require an employee to take sick, annual or vacation leave when responding to a jury summons or service on the jury if reasonable notice to the employer has been given.

Military Leave

Similar to federal law, under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Virginia has laws that protect the employment status of the men and women who serve in the armed forces.

Virginia law prohibits employers from discharging or otherwise discriminating against an employee because he or she is a member of the Virginia National Guard, Virginia State Defense Force or naval militia. The Virginia law covers all public and private employers, regardless of size. An employer that violates this provision can be guilty of a misdemeanor.

Voter Leave

The Commonwealth of Virginia does not have a law that requires an employer to grant its employees leave, paid or unpaid, to vote. This should be changed, in the author’s opinion, but that is the case today. However, Virginia law does require an employer to provide an employee time off to serve as an election officer if the employee has given reasonable notice of the need for leave.

Such leave need not be paid by the employer. The leave does not need to be paid. A Virginia employer that fails to allow an employee to take time off to serve as an election officer can be guilty of a misdemeanor.

Conclusion

If you are in need of employment law advice or assistance, 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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Legal Insider: Investing in Marijuana Stocks Can Cause Loss of Security Clearance

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.

If you hold or are seeking a security clearance, and you own or work in the ever-growing marijuana industry, you are likely to have difficulties obtaining or keeping a security clearance.

We have been counseling clients about this issue since at least 2010. This principle also applies to individuals that work part-time or are otherwise involved in marijuana-related businesses.

Owning stock or working for a marijuana enterprise is a reportable clearance activity when holding a security clearance and can lead to the loss of a security clearance or in one obtaining a clearance. The current marijuana policy comes from the Director of National Intelligence (DNI), by way of an October 2014 memorandum which explains current government policy.

Investments in marijuana-related companies can constitute involvement in illegal drug activities. This can be the case even where the individual does not directly choose their individual stocks and even in states where marijuana businesses are completely legal. 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.

2014 Memorandum and Other Federal Directives

The 2014 memorandum led to Security Executive Agent Directive (SEAD) 4 in June of 2017 which provides the current basis for not granting or revoking a security clearance based on drug involvement, including investments in marijuana under Guideline H:

  1. 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;

. . . .

Marijuana stocks have been touted as the new Amazon investment, according to a number of articles. However, the problem is that until the federal government changes federal drug laws or creates a caveat for marijuana businesses, individuals that invest or otherwise become involved in marijuana investments can put their security clearance (and career) at risk.

We have seen a lot of confusion on this issue since at least 2012 when a number of states started legalizing the use of marijuana. We have represented many clearance holders who have traveled to Colorado or elsewhere, where marijuana is legal, to simply try it. In some of these cases, the experimentation has cost the individual their security clearance.

It is advisable that individuals seeking to hold or obtain a security clearance refrain from investing in marijuana stocks until federal law changes. Eventually, we believe that the federal government will change their position on this issue, but for the moment investing in companies or stocks that are involved in the dispensing of marijuana can cause one to lose a security clearance.

Conclusion

If you are in need of security clearance representation, 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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Legal Insider: Reasonable Accommodations for Federal Employees

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. and Melissa L. Watkins, Esq.

Federal employees, whether part-time or full-time, with a qualifying disability are entitled to reasonable accommodations.

Reasonable accommodations are changes in the work environment or in the way things are done in the workplace to assist disabled individuals in participating fully in the employment environment. The Equal Employment Opportunity Commission (EEOC) has a nice article on the subject here.

Examples of potential reasonable accommodations:

  • Making existing facilities accessible
  • Job restructuring
  • Part-time or modified work schedules
  • Use of leave
  • Acquiring or modifying equipment
  • Changing tests, training materials or policies
  • Providing qualified readers or interpreters
  • Reassignment to a vacant position
  • Accommodations to access benefits and privileges of employment. Examples of benefits and privileges of employment include training, services, credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation and parties or other social functions.

A federal agency does not have to eliminate a fundamental duty of the position or lower production standards in the reasonable accommodation process, but the agency may have to provide an accommodation to enable a disabled employee to satisfy the duty or meet the standard if it is reasonable.

Reasonable accommodations must not be unduly burdensome (feasible or plausible), effective in meeting the needs of the disabled individual and they cannot cause undue hardship (significant difficulty or expense) for the agency.

Agencies are not required to provide the exact accommodation that is requested but the accommodation provided must be effective in meeting the needs of the federal employee.

Example of Reasonable Accommodation — A federal employee has an eye disability that makes it difficult for the employee to read small font on a standard computer. The employee requests a computer software tool that magnifies font sizes to make documents easier to read.

This accommodation is reasonable because it is a common-sense solution to remove a workplace barrier when the job can be effectively performed with a larger font size. This accommodation is effective because it addresses the employee’s eyesight disability and enables him/her to perform the job duties. The accommodation does not cause undue hardship because the software is easy to obtain and the cost is minimal to the agency.

Requesting a Reasonable Accommodation

In order to obtain a reasonable accommodation a disabled employee must inform the agency that an accommodation is needed. The request for an accommodation can be made at any time during employment. The process for requesting a reasonable accommodation is very informal and usually occurs through conversations between the employee and the agency.

The request does not have to be in writing, but it is recommended that something in writing be provided for the purposes of record keeping. Agencies may also have a designated form that is provided to federal employees making a reasonable accommodation request. An agency may not cause unnecessary delay in responding to a request for accommodation.

An agency’s failure to participate in a dialogue (otherwise known as the “interactive process”) about accommodation after a request is made or the causing of undue delay could result in liability for failure to provide a reasonable accommodation.

Generally, a federal employee requesting a reasonable accommodation is not required to submit medical evidence. However, in certain instances, an agency may require reasonable documentation to verify the disability and the type of accommodation that is necessary.

The agency is not allowed to require any more documentation than what is necessary to establish a disability and that the disability necessitates a reasonable accommodation. Agencies may not demand documentation when the disability and the need for reasonable accommodation are obvious.

It is very important for federal employees in need of a reasonable accommodation that they seek the advice of an attorney regarding their request in order to ensure compliance with agency-specific procedures.

Legal representation can also be beneficial in addressing reasonable accommodations as they relate to adverse employment actions or termination.

Our law firm represents federal employees seeking reasonable accommodations and in other federal retirement matters.

Conclusion

If you are in need of federal employee retirement law representation, 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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Legal Insider: Early Retirement for Federal Employees

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.

The Federal workforce is presently undergoing significant changes in size and scope.

In some instances, this has led to the Federal government providing incentives for Federal employees to retire early. Federal agencies that are undergoing substantial organizational changes such as reorganization, reduction in force, reshaping or downsizing can be given the option to offer federal employees voluntary early retirement based on the Voluntary Early Retirement Authority (VERA). OPM provides guidance on VERA here.

The purpose of VERA is to help agencies complete the necessary organizational change with minimal disruption to the workforce and make it possible for federal employees to receive an immediate annuity payment years before they would be eligible.

The voluntary early retirement provisions are the same under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS).

Requirements for Early Retirement

In order to be eligible to retire under VERA, a federal employee must usually meet the following requirements:

  •  Meet the VERA minimum age and service requirements set by statutes in the U.S. Code for CSRS and FERS employees (i.e., the employee has completed at least 20 years of creditable service and is at least 50 years of age or has completed at least 25 years of creditable service regardless of age).
  • Have been continuously employed by the agency for at least 31 days before the date that the agency initially requested the Office of Personnel Management (OPM) approval of VERA.
  • Hold a position that is not a time-limited appointment.
  • Have not received a final removal decision based upon misconduct or unacceptable performance.
  • Hold a position covered by the agency’s VERA authority or program.
  • Retire under the VERA option during the agency’s VERA acceptance period.

It is very important for federal employees considering a VERA offer or whether one is available to seek the advice of an attorney regarding their retirement issues prior to initiating the VERA process.

Our law firm represents federal employees that are considering early retirement and in other federal retirement matters.

Conclusion

If you are in need of federal employee retirement law representation, 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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Legal Insider: Top Reasons for Clearance Denial in 2018

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 security clearance holders and applicants so every few years, we look back on the trends of what security concerns most often lead to the loss (or potential loss) of a security clearance. This year we thought we would do the same. Overall, not much has changed.

2018 Grounds for Loss of Security Clearance

There are 13 security concerns that can lead to the loss of a security clearance, which is listed in Security Executive Agent Directive 4 (SEAD 4). These concerns range from foreign influence to financial issues and numerous other issues in between. A review of publicly available security clearance cases was conducted by Marko Hakamaa of ClearanceJobs.com, which provided the breakdown of issues that resulted in initial security clearance denials.

Financial Issues Remain the Number 1 Concern

From the report, it is fairly clear that the number 1 issue of concern for security clearance holders remains Financial Considerations under Guideline F. While this Guideline can cover many areas related to financial responsibility, we see that it most often comes up in the context of a credit report which shows major unresolved debts or when an individual’s tax payments or filings are not timely.

Often for major debts the government is concerned that this could leave an individual subject to potential coercion. For issues related to taxes, the issue is the non-compliance of the individual with tax laws.

General Misconduct Comes in Second

The second most significant security concern from this report shows that Guideline E, Personal Conduct is the next most common clearance issue. Guideline E is a general security concern which can practically cover any type of bad conduct. Most typically, however, it often comes up in the context of illegal drug use, an arrest, a record of bad employment or lying on security clearance forms.

Foreign Influence is Ranked Third

The third most common basis for losing a security clearance was foreign influence, under Guideline B. This issue most commonly comes up when an individual with a security clearance (or who is seeking one) has relatives or property in another country.

The major concern of the government is that an individual may have relatives in another country that work for that government or who could be used as pawns to gather information from the clearance holder or applicant. The United States also treats clearance holders and seekers whose relatives are from allied countries (e.g., the United Kingdom, France, etc.) much better than those from less cooperative countries, like China or Russia.

The rest of the 2018 breakdown of security concerns is included in this report. We represent individuals with these types of security clearance appeals and there are often mitigating factors which can result in a favorable adjudication of these types of security clearance issues. The key is to involve counsel experienced in this area of law as soon as possible.

Conclusion

If you are in need of security clearance advice or representation, 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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Legal Insider: Whistleblower Claims in Virginia

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 employees in Virginia who have been terminated in retaliation for whistleblowing. Whistleblower cases are unique and present their own unique challenges.

Employees are advised to seek counsel as early in the process as possible if they believe that they have been terminated (or will be terminated) in retaliation for whistleblower activities.

Whistleblower Law in Virginia

In Virginia, if a whistleblower reports alleged wrongdoing or states that they intend to report it, this can subject the employer to a civil lawsuit for retaliation if it falls under certain criteria. While Virginia is an at-will state, and employees may be fired for any reason or no reason at all, exceptions can apply.

In the past 30 years, exceptions to this general rule have started to emerge in Virginia. One such exception involves employee termination in retaliation for whistleblowing.

The Virginia courts carved out this exception to the at-will doctrine in the 1985 case of Bowman v. State Bank of Keysville. Other rules on whistleblowing can apply to federal employees and state or local employees. This article focuses on private company employees in Virginia.

What Kind of Retaliation is Covered?

An employer may not terminate an employee for reporting an issue that relates to the public policy of Virginia. An employee has a potential claim for wrongful discharge when the basis for the discharge violates public policy.

In order to determine what constitutes public policy, Virginia courts have pointed to statutes to determine if an issue has been endorsed by the state (e.g., the right to collect unemployment compensation benefits if eligible) or prohibited (e.g., criminal laws prohibiting perjury).

Example: Employer is sued for a personal injury by a shopper in their department store. Employee Jim Smith is a witness to the injury. The employer asks the employee to lie in court so that they won’t be liable. Mr. Smith refuses to lie in court. Employee A testifies truthfully and is then fired.

Statutory Whistleblower Retaliation in Virginia

In addition to the exceptions carved out by the Virginia courts, the Virginia General Assembly has passed specific statutory protections for certain activities. Employees who engage in protected activities under laws in certain areas are also protected from retaliation. These include asbestos, lead, and home inspection contractors; occupational safety and health issues; and workers’ compensation.

However, because the Virginia assembly has not passed a general whistleblower protection statute, most workers have to rely on the exceptions carved out by the courts to pursue a whistleblower claim. The courts in Virginia have seen an increase in the number of these types of cases in recent years.

I believe that more cases will expand this doctrine as Northern Virginia grows and exerts influence in Richmond for these types of employment protections.

The most usual remedies for Bowman Whistleblower claims can include:

  • Reinstatement
  • Damages
  • Lost Benefits
  • Attorneys fees

Conclusion

If you are in need of employment law advice representation, 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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Legal Insider: Ghosting Hits The Employment World

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 practice employment law. A new trend that the Federal Reserve and others have picked up on recently is the concept of “ghosting.” Ghosting occurs when a job applicant does not show up for their scheduled interview or where an employee does not show up for scheduled work and never returns.

What is Ghosting?

In areas which range from food services to banking, employers have indicated that a tighter job market and labor shortages have led to applicants deciding not to show up for scheduled interviews without notice or in accepting positions and then not showing up for their first day of work.

In other cases, ghosting has meant that an employee just decides to leave their employment without giving notice (or telling anyone) and just never shows up again. Other reasons for ghosting include the fact that because the employment rate is very low, it is easier than ever to find new employment. One report indicated that 20-50% of employers were facing ghosting in one form or another.

Why is Ghosting Bad for Employees and Applicants?

Ghosting is very bad for applicants and employees on a number of levels.

For starters, it isn’t a good long-term career strategy. If an employee doesn’t provide notice to an employer that they are leaving, supervisors may call the police for a wellness check, leading to a host of issues.

Additionally, by leaving in this manner, employees will most likely be deemed by the employer to have abandoned their employment and then classified as having been terminated. As a result, the employee that “ghosts” away from their employment will be left with a negative mark on their employment records, which they may have to disclose in future employment applications elsewhere and/or if they choose to ever seek a security clearance. This also applies to new employees that are hired but do not show up for their first day of work.

For applicants that don’t show up for interviews, doing so can hurt them in other ways. If a recruiter is involved, that recruiter could list the non-appearance in a shared database with other recruiters, essentially blacklisting the person.

With the digital future upon us, it is only a matter of time before such things also end up in background investigations or reports. The point is that “ghosting” is a recipe for hurting one’s own career.

It is important to take the time to give notice to an employer and make a phone call or at least send an email to an employer if an individual they plan to quit or cannot make a scheduled interview. Furthermore, if an applicant “ghosts” a scheduled interview with an employer, that individual’s name may get around to others in the same field, causing them to lose or not get an interview with other employers.

It may be easier to ignore interviews or leave for better employment, but it is far better to do so with professionalism. Ghosting is simply to big a risk for an employee or applicant to their long term career.

Conclusion

If you are in need of employment law advice or assistance, 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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Legal Insider: Marijuana & Security Clearances Don’t Mix

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

By John V. Berry, Esq.

There have been at least 10 states that have legalized marijuana over the past 5-10 years. The change in state laws has led to significant confusion by security clearance holders about their ability to use marijuana while holding or seeking a security clearance.

States like Massachusetts or California have legalized marijuana, but marijuana use remains illegal under federal criminal law as a Schedule I drug. The state and federal conflict in laws has caused both confusion and problems for security clearance applicants or holders.

Security Clearance Rules Governing Marijuana Usage

Security clearance holders and applicants frequently run into security clearance problems under Guideline H of the Security Clearance Guidelines (Security Executive Agent Directive 4) because they don’t realize that the use of marijuana, even in a state that has legalized it, remains illegal under federal law.

I believe that these guidelines will be amended in the next 5-7 years to change the use of marijuana from a complete ban to an abuse standard, like with alcohol, but the issue remains a problem today for those in the security clearance world.

Additionally, the type of marijuana which is used makes no difference (e.g. candy form, chocolate, brownie, smoking) under the guidelines. We have seen individuals that have had security clearance problems stemming from eating a single gummy candy which contained the active ingredients of marijuana.

We have defended many security clearance clients who have engaged in the light (or even one-time) usage of marijuana, who have had difficulties in overcoming the presumption that even minor use makes one ineligible to hold or maintain a security clearance. If the usage was a long time ago, this can significantly help mitigate a security concern, but the trickiest situations arise when marijuana usage has occurred within the past year.

The key in such cases is to attempt to mitigate security concerns by showing abstinence, changes in attitude, changes in associations with friends that engage in drug use and counseling, where needed.

Guideline H of the SEAD 4 states that:

The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.

Mitigation of Marijuana Use

Certain factors can mitigate security concerns for marijuana usage. These include:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to:

     (1) disassociation from drug-using associates and contacts;
     (2) changing or avoiding the environment where drugs were used; and
     (3) providing a signed statement of intent to abstain from all drug involvement and
substance misuse, acknowledging that any future involvement or misuse is grounds for
revocation of national security eligibility;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

(d) satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

How to Approach a Marijuana Use Issue When a Security Clearance is Involved

It is very important not to underestimate the seriousness involved when a security clearance application, investigation or appeal reveals even minor usage of marijuana. Even minor usage of marijuana can cause the loss of a security clearance.

Marijuana usage issues may change in the future as the government likely moves from complete marijuana abstinence to an abuse threshold. In such cases, mitigation and the Whole-person concept are critical to attempting to obtain or retain one’s security clearance.

Conclusion

If you are in need of assistance in the security clearance process, 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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Legal Insider: Rights for Federal Employees in Disciplinary Cases

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.

More common types of federal agency “adverse actions” (more serious discipline) include removal, demotion, reduction in grade or suspensions of greater than 14 days. Some types of “disciplinary actions” (lessor discipline) include letters of warning, letters of reprimand, oral or written counseling or suspensions of less than 15 days.

Federal Employee Rights in Disciplinary Cases

If a federal employee is issued a proposed disciplinary action, the proposal will normally include a description of the alleged misconduct and the type of charge against the employee (e.g., insubordination, theft, conduct unbecoming, lack of performance, etc.).

Federal employees in adverse action matters (suspensions of 15 days and above, and demotion matters) and in some disciplinary actions (suspensions of any length (usually 14 days and below)) have the following rights: (1) right to an attorney; (2) right to respond to the proposal in writing or orally, and (3) the right to review all of the materials relied upon in the issuance of the Proposal.

We recommend that employees involved in proposed disciplinary or adverse action always request from the agency all of the materials that it is relying upon to propose discipline. Sometimes disciplinary actions will not be drafted properly and reviewing the materials relied upon can help in responding to the discipline.

Present Both a Written and Oral Response

We also usually recommend, in most cases, that a federal employee present both a written response and an oral response to the deciding official (the decision maker on the disciplinary action) in a proposed disciplinary or adverse action.

The oral response portion of a federal employee’s response can be extremely important and usually follows the submission of the written response.

Typically, when we assist federal employees in this regard, we obtain a full statement of facts from the federal employee involved and prepare a full written rebuttal to the allegations. We also contact the deciding official in the personnel action and request an appointment for the oral response.

In these types of cases, we respond to both the merits of the alleged conduct and argue for mitigation under the Douglas Factors. Douglas Factors typically are mitigating reasons as to why a particular disciplinary penalty should be reduced (i.e., based on years of successful performance, no prior disciplinary actions, lack of clarity about the rules at issue and other reasons why a disciplinary penalty should not be so harsh).

Conclusion

If you are in need of assistance in the federal employee discipline process 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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