Legal Insider: Supreme Court to Decide Whether Sex Discrimination Laws Cover LGBT 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.

On October 8, 2019, the United States Supreme Court heard oral arguments as to whether or not Title VII of the Civil Rights Act of 1964 involving sex discrimination applies to LGBT employees.

The U.S. Circuit Courts of Appeal are currently split on the issue. Hopefully, the Supreme Court will focus on the text of the law, not politics, and do the right thing here. In my opinion, the Civil Rights Act clearly protects LGBT employees from employment discrimination based on sexual orientation and transgender status. The civil rights law was written broadly and anticipates other forms of sex discrimination.

The Three Cases

The Supreme Court heard three combined cases on the issue during oral argument. They involve 3 employees, two gay males and one transgender female. The two men were fired due to their sexual orientation and the transgender woman was fired from her employment because of her gender identity. A link to the synopsis on Scotusblog can be found here.

Common Sense Should Prevail

As with so many other issues in the law, common sense has been distorted through the various legal arguments. Most individuals know that “sex” discrimination is discrimination based on some aspect of sex. Those opposing the inclusion of LGBT employees from sexual discrimination protections have tried to twist the plain meaning of the statute’s wording by claiming it to be different than it reads.

To some, it could reasonably appear that LGBT employees are attempting to enlarge the definition of a law which was meant to protect women from sex discrimination back in 1964. However, the law was also meant to broadly define sex discrimination, which can happen to anyone, regardless of whether they are straight, LGBTQ or otherwise. Opponents have argued that gender identity, sexual orientation and sex discrimination have multiple different meanings in an effort to confuse the issue.

One of the arguments put forth seems to make the concept clear to me:

The argument before the Court is that sexual orientation discrimination is sex discrimination under Title VII, because when an employer fires a male employee for dating men, but does not fire a female employee who also dates men, the employer discriminates based on sex. 

History of Sex Discrimination Law is Non-Existent

Furthermore, Title VII’s ban on sex discrimination was a last-minute inclusion in the Civil Rights Act that was intended to scuttle the bill by former Congressman Howard Smith from Virginia. Apparently, Congressman Smith elicited laughter from his colleagues when he proposed this addition at the last minute. He must have been shocked when the sex discrimination law passed Congress.

As a result, the definition was left broad, without any hearings and debate to define it. Many courts and the EEOC have concluded that the law was intended to protect LGBT employees. Hopefully, the Supreme Court will do the right thing here. Nobody should be subject to sex discrimination.

A ruling, either way, is probably likely to be 5-4, either way. The swing justice is likely Justice Neil Gorsuch, who has taken the view that the text was clear in that sex discrimination could include these forms of discrimination. If the 3 employees prevail it will likely be because Justice Gorsuch and/or Kavanaugh rule with them. However, if the Court rules against LGBT employees, it will only be a matter of time before a future Supreme Court overrules them and the justices that supported this type of discrimination will be remembered poorly.

Conclusion

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

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Legal Insider: Security Clearance Cases Focus on Foreign Connections

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

By John V. Berry, Esq.

A common concern for security clearance holders and applicants involves foreign influence.

A significant portion of security clearance appeals typically focuses on this very issue. With respect to foreign influence, the Government is chiefly concerned with an individual’s loyalty or ties to another country over those to the United States.

The rules regarding foreign influence and security clearance cases are set forth in Security Executive Agent Directive 4 (SEAD 4), Guideline B, which discusses the foreign influence concerns that could lead an individual not obtaining or in losing a security clearance.

Examples of Foreign Influence Issues

Some brief examples of issues that might come up to cause the Government concern in potentially denying a security clearance follow:

Example 1 — U.S. citizen was born in India. She has recently inherited a home worth $75,000 and other assets of $50,000 in India. The individual’s parents and family also still live in India.

Example 2 — U.S. citizen born in Taiwan has family that still lives in Taiwan and extended family in China. The individual also has received health benefits from Taiwan in the past.

Example 3 — U.S. citizen’s brother is a general in the Iraqi forces. The risk of having a close relative in such a high foreign position causes a significant security concern for the U.S. Government. See DOHA Case.

Example 4 — U.S. Citizen had 6 relatives in the Philippines. The large number of relatives in the Philippines caused security concerns for the individual in their security clearance matter. See DOHA Case.

Specific Security Concerns Involving Foreign Influence

There are numerous examples of foreign influence issues that can arise when seeking a security clearance. According to SEAD 4, Paragraph 7 the guidelines define serious foreign influence issues as involving the following types of issues:

7(a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect classified or sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information or technology

(c) failure to report or fully disclose, when required, association with a foreign person, group, government, or country

(d) counterintelligence information, whether classified or unclassified, that indicates the individual’s access to classified information or eligibility for a sensitive position may involve unacceptable risk to national security

(e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion

(f) substantial business, financial, or property interests in a foreign country, or in any foreign-owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest

(g) unauthorized association with a suspected or known agent, associate, or employee of a foreign intelligence entity

(h) indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure, or coercion

(i) conduct, especially while traveling or residing outside the U.S., that may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government, or country

Mitigating Security Concerns

Even when security concerns relating to foreign influence arise, there are often ways of mitigating them and enabling the clearance holder or applicant to still obtain/retain a security clearance. According to Paragraph 8 of SEAD 4, an individual may be able to still hold a security clearance if they can prove mitigating details, as defined below:

8(a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States

(b) there is no conflict of interest, either because the individual’ s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest

(c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation

(d) the foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee

(e) the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country

(f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual

Having counsel to assist a clearance holder in establishing proof of mitigation in foreign influence cases under Guideline B is critical. These are not cases that should be handled without a lawyer.

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: President’s Proposed Changes in Tip Rules for 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.

The President recently proposed a new federal rule which will affect the wages of employees who earn tips. The new rule was proposed on October 8, 2019 by the Department of Labor (DOL) and would permit employers to require widespread sharing of tips with other types of co-workers. One of the major industries affected would be the foodservice industry. The newly proposed rule would permit employers to share wait staff tips with food preparation staff and others (e.g. dishwashers, food delivery personnel).

Difficulties With the New Tip-Pooling Rule

A problematic part of the newly proposed rule would give employers newfound flexibility in assigning non-tipped assignments to workers who rely on gratuities for the major portion of their income. The restaurant lobbying industry has sought these types of changes for some time. Former President Obama’s Administration had previously mandated that tips belonged to the workers that received them.

One of the major problems with the new rule, for employees that earn tips is that it takes funds earned by them and transfers them to employees that don’t earn tips. By doing this, restaurant owners are potentially able to compensate food staff (non-tip earners) with lower salaries.

Tipped Employees Wages will be Affected

The DOL, in their proposal, even acknowledges that the new rule will result in tipped employees spending more time on lower-paying duties:

“The removal of the twenty percent time limit may result in tipped workers such as wait staff and bartenders performing more of these non-tipped duties such as ‘cleaning and setting tables, toasting bread, making coffee, and occasionally washing dishes or glasses.’ . . . Tipped workers might lose tipped income by spending more of their time performing duties where they are not earning tips, while still receiving cash wages of less than minimum wage.”

Employers will Gain

Employers will gain from the situation and may be able to provide lower salaries to non-tip earners, offsetting the loss with tip income. The DOL also provides the real rationale for the change in the proposed regulation: “[E]mployers that had been paying the full minimum wage to tipped employees performing related, non-tipped duties could potentially pay the lower direct cash wage for this time and could pass these reduced labor cost savings on to consumers.”

The proposal should become final in about 6 weeks and could have some changes in the final version. However, if a new administration comes in, the tip-pooling policy could potentially change once again.

Conclusion

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

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Legal Insider: What is a Whistleblower?

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 thought that an article on whistleblowing would be timely given the recent news involving the whistleblower complaint involving Ukraine. A whistleblower is simply an individual who learns of illegal or unethical activity (or waste, fraud and abuse) and reports it.

Most whistleblowers do not end up famous, but they often play a critical role in holding employers and the government accountable for engaging in illegal activities. Too often illegal activities are ignored by an employee for fear of retaliation. Some employees, however, take a stand at great risk to themselves. As a result, many whistleblower laws have developed over the years to protect these individuals.

Whistleblower Laws in the United States and Virginia

The United States has had whistleblower laws in effect since 1863 during the time of President Abraham Lincoln, who wanted to encourage individuals to report rampant fraud against the federal government in response to purchases during the Civil War. As a result, the False Claims Act (FCA) became law and encouraged private citizens to bring lawsuits against individuals and companies who were defrauding the government.

As an incentive, the whistleblower could receive a percentage of whatever the government recovered from the disclosure. The FCA is still in effect today, though numerous other federal and state laws cover different types of whistleblowers.

In 1989, the Whistleblower Protection Act (WPA) was enacted to protect federal employees who disclosed illegal actions by the federal government and waste, fraud and abuse. The WPA sought to protect federal employee whistleblowers who suffered retaliation for reporting these illegal activities. There are numerous other whistleblower laws at the federal and state levels that protect individuals who disclose different types of illegal activities, such as the Clean Air Act, the Sarbanes-Oxley Act, the Toxic Substances Control Act, and the Occupational Safety and Health Act (OSHA).

These are just some of the existing whistleblower laws that can protect individuals that make disclosures. Additionally, many states allow employees, either by statute or common law, the ability to challenge retaliation related to whistleblowing activities.

In Virginia, because the state has not yet enacted general state whistleblower protections for employees, the courts have allowed employees to bring whistleblower claims through common law. These are known as Bowman claims, after the case of Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985).

General Test to Qualify for Whistleblower Protection

The importance of being a whistleblower is that certain protections can then come into play after the disclosures are made. Generally, once a disclosure is made, an employer finds out who disclosed the illegal activity and are very unhappy with the employee. This often causes employer retaliation against the whistleblower.

Whistleblower protection laws usually follow the same 3-part test to determine if an employee can prevail on a retaliation claim. In general, this requires:

  1. That the individual had a good faith belief that their employer was engaging in illegal activities or waste, fraud and abuse and they reported it
  2. That the individual’s employer knew that the individual made such disclosures
  3. That the whistleblower suffered retaliation due to the disclosures

Depending on the statute involved, a whistleblower can receive legal protection from retaliation (the most common retaliatory action involves termination from employment), damages, back pay and attorney fees. Each statute is different so individuals should consult with an attorney if they believe that they may need whistleblower protection.

Conclusion

If you need assistance with whistleblower representation or other employment issues, 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.

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Legal Insider: New Virginia Law Requires Employer to Provide Personnel Documents

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.

An amendment approved by the Governor of Virginia in Virginia Code.

Requirements of the New Virginia Employment Law

Virginia Governor Ralph Northam approved an amendment and re-enactment of Virginia Code § 8.01-413.1. The new amendment requires Virginia employers to produce certain employment documents when they receive a written request from a current/former employee or employee’s attorney.

If the employer doesn’t comply, the Virginia statute awards potential damages to the employee if the employer fails to do so within the allotted timeframe. Since the amendment became effective on July 1, 2019, a number of Virginia employers are seeing an increase in requests for the applicable documents.

The Virginia amendment requires a Virginia employer to furnish employment records reflecting (1) dates of employment, (2) wages or salary, (2) job description and job title, and (4) any injuries sustained during the course of employment within 30 days of the receipt of a written request. An employer is not required to be a party to a suit for the statute to apply. That statute provides that:

Every employer shall, upon receipt of a written request from a current or former employee or employee’s attorney, furnish a copy of all records or papers retained by the employer in any format, reflecting (i) the employee’s dates of employment with the employer; (ii) the employee’s wages or salary during the employment; (iii) the employee’s job description and job title during the employment; and (iv) any injuries sustained by the employee during the course of the employment with the employer. Such records or papers shall be provided within 30 days of receipt of such a written request.

Before the new Virginia statute, employers were not required to produce such documents without a subpoena. If the Virginia employer cannot process the employee’s request within 30 days, the employer must notify them in writing. The Virginia employer will then have an additional 30 days to produce the records.

Pursuant to the Virginia statute, the employer can charge a reasonable fee for the copying of paper records and/or the retrieval of electronic records. Failure to comply with a written request can result in a subpoena and the award of damages against the employer, including the employee’s expenses for obtaining the copies, court costs and attorneys’ fees.

The bottom line is that the new statute in Virginia will help employees obtain copies of their employment records. If the employer does not comply, they will likely be responsible for significant fees.

Conclusion

If you need assistance with Virginia employment law issues, 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: States Start Non-Compete Agreement Reform

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.

Several states (not Virginia yet), have made moves to restrict the using unreasonable non-compete agreements with employees. Our practice has shown us that Virginia non-compete agreement reform is needed.

We have represented employers and employees in our practice and have found that many non-compete agreements in Virginia are extremely over broad and unreasonable.

What are Non-Compete Agreements?

A non-compete agreement is simply a contract between an employee and an employer in which the employee agrees not to enter into competition with the employer during or after employment.

Reasonable non-compete agreements are helpful and often necessary for employers to hire individuals without risking that they will then lose their customers if an employee leaves and tries to take clients with them. However, these types of agreements have started to get completely unreasonable.

Currently, non-compete agreements have not been restricted by Virginia law but regulated through the courts. Employees in Virginia who sign non-compete agreements can be held to them only if they pass this three-part test:

  • Is the restriction reasonable in the sense that it is no greater than is necessary to protect the employer in some legitimate business interest?
  • From the standpoint of the employee, is the restraint reasonable in the sense that it is not unduly harsh and oppressive in curtailing his legitimate efforts to earn a livelihood?
  • Is the restraint reasonable from the standpoint of a sound public policy?

Paramount Termite Control v. Rector, 380 S.E.2d 922 (Va. 1989).

However, the problem with the status quo is that employers have the upper hand, for the most part, with these types of agreements and enforcement. Take for example an employee making $50,000 a year, who signed an unreasonable non-compete agreement but is threatened by a large law firm and faced with massive legal expenses in challenging it.

In short, it is time for Virginia to provide safeguards for employees in this area.

Examples of Abuse for Non-Compete Agreements

Reform for non-compete agreements is needed due to a number of abuses occurring in Virginia and elsewhere. Some examples of the types of abuses seen:

  • A physician works in Reston, Virginia and signs a non-compete agreement which bars her from practicing medicine for 3 years in the tri-state area forcing her to move to another region to obtain work.
  • A restaurant worker, making minimum wage, is required to sign a non-compete agreement prohibiting them from working for other restaurants in a 10-mile area.
  • An unpaid office intern for a government contractor is required to sign a non-compete agreement prohibiting them from working for another government contractor for a period of 3 years.
  • A new program manager is hired by a company and signs a non-compete agreement. Two weeks later the employer determines that the hire is not a good fit and terminates the employee. Despite the fact that there is no misconduct or cause for the firing the employee is unable to work for a similar employer for 2 years.

Some States Begin to Change Non-Compete Agreements

There is hope for reform. Many states have begun changing non-compete agreement law. Washington, New Hampshire, Massachusetts, Maine and other states have led the way in attempting non-compete agreement reform. These states have not adopted a uniform approach, but provide some good ideas for Virginia.  Some examples:

Wage Requirements — New Hampshire bars the use of non-compete agreements for those making less than $14.50 an hour. Washington restricts non-compete agreements to those employees that make over $100,000 a year. Maine prohibits non-compete agreements for those making a wage at or below 300% of the federal poverty level.

Trial Period Before Non-Compete is Binding — Maine has enacted a law providing that an employee must have worked for the employer for a period of 1-year or 6 months after signing the agreement (whichever is later) for a non-compete agreement to be enforceable.

Non-Compete Invalid if Fired Without Cause or Laid Off — Massachusetts law prohibits the enforcement of a non-compete agreement against an employee who has been terminated without cause or laid off. This is critical because the worst case scenario is where an employee has been terminated without any misconduct but then is barred from obtaining a new job in the same field for a significant period of time.

Leveling the Field for Employees — As I mentioned, it is often the case that employers often feel free to have their law firms send threatening letters to employees arguing that they cannot work in the same field even if a non-compete agreement is completely unreasonable. Faced with this, many individuals feel that they cannot challenge an agreement that is otherwise unlawful.

Washington has done a good job on this front. The Washington statute is very good and it has a number of other employee protection mechanisms such as requiring an employer to pay an employee’s legal fees and damages should they seek to enforce an unreasonable non-compete agreement.

Suggestions for Non-Compete Reform in Virginia

Non-compete agreement reform is seriously needed in Virginia because these types of agreements have been becoming more unreasonable in recent years. I would recommend that Virginia enact a statute that combines some of the different approaches used by the other states listed above. An example of a new Virginia statute that could start to fix the problem follows:

  • Workers making less than $75,000 should be excluded from non-compete agreements
  • An employee could not be held to a non-compete agreement if they were not employed for at least a year by the employer or terminated or laid off without misconduct
  • Employees faced with an employer that seeks to enforce an unreasonable agreement should be penalized by having to pay the employee’s legal fees and a small amount of damages

This proposal could be modified, but Virginia should take some action to change what has become an uneven field for employees faced with unreasonable non-compete agreements.

Conclusion

If you need assistance with a non-compete agreement or other employment issues, 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: Federal Employment and Politics 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.

The elections in 2020 are quickly approaching. Our law firm often represents and defends federal employees for potential Hatch Act violations in the federal workplace.

The Hatch Act was meant to limit the partisan political involvement of federal employees. Hatch Act political activity restrictions apply during the entire period of an employee’s federal service. There are certain rules that prohibit both on-duty and off-duty political conduct. As the 2020 elections start to come closer, this article is meant to help federal employees avoid the pitfalls of committing potential Hatch Act violations.

What is the Hatch Act?

The Hatch Act of 1939 prohibits certain types of political participation by federal employees. For example, federal employees may not seek public office in partisan elections, use their official titles or authority when engaging in political activity, solicit or receive contributions for partisan political candidates or groups, and/or engage in political activity while on duty.

Even though the word “partisan” is used other types of non-partisan elections where the candidate is backed by a particular party can also cause a federal employee potential Hatch Act violations.

Enforcement of Hatch Act Violations

For most federal employees, the Hatch Act is enforced by the Office of Special Counsel (OSC). The OSC has the ability to seek disciplinary action against federal employees if violations are found. Federal employees can potentially be disciplined or terminated for violations of the Hatch Act.

Generally, the OSC will first conduct an investigation and then if violations are found may then seek to negotiate a resolution. In other cases, the OSC may file a disciplinary action with the Merit Systems Protection Board against the employee and ask an administrative judge to take action against the federal employee for a violation.

Hatch Act Tips for Federal Employees

Here are some quick tips for avoiding Hatch Act violations in the federal workplace:

  • Avoid discussion of partisan politics using government email
  • To the extent possible, avoid partisan political discussions while at work or while performing work
  • Don’t try to raise money for partisan political candidates in the workplace (even passing along links for partisan candidates to co-workers)
  • Don’t post political discussions during work hours on social media
  • Don’t donate to a political campaign during work hours
  • Don’t bring political campaign signs or buttons into the federal workplace
  • Don’t run for office in a partisan political election

Federal employees can often still participate in political activities, but doing so at work can be a violation of the Hatch Act.

For further information on potential Hatch Act violations, please see the information offered by the OSC. While it is doubtful that brief discussions about politics in the federal workplace would trigger an OSC investigation, the potential risk is there. The safest course for federal employees is to simply avoid partisan politics in the workplace and save them for off-duty.

Conclusion

If you need assistance with federal employment law issues, 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: States Began to Offer Employment Rights to Domestic Violence Victims

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 beginning to offer victims of domestic violence employment law rights.

The Commonwealth of Virginia has not done so yet, but this article focuses on the jurisdictions that have enacted such legislation. The most major legislation in this area has come from New York and California. It is hoped that more states (and Virginia) will begin to enact these types of employment law protections for victims of domestic violence.

New York and California Laws Offer Employment Law Protections

The State of New York recently enacted Bill A5618/S1040, which offers employment law protections to victims of domestic violence. The new law enhanced previous New York protections which prohibited discrimination against victims of domestic violence within the workplace. The new law adds the following:

Reasonable Accommodation: The law requires employers to reasonably accommodate victims of domestic violence who must be absent from work for a reasonable amount of time to seek medical attention, therapy or legal services in connection with domestic violence.

Anti-Discrimination: The new law further ensures that domestic violence victims are considered a protected class and that employment discrimination against them is considered another form of illegal discrimination.

The State of California has enacted similar protections for victims of domestic violence. In some ways, the protections given to employees in California are slightly stronger than those in New York. California Labor Code §§ 230 and 230.1 provides employment law protections to victims of domestic violence, sexual assault or stalking.

Like in New York, California requires employers to provide reasonable accommodations to domestic victims. California also makes it illegal to discriminate or retaliate against a victim of domestic violence for taking time off of work to seek help.

Virginia Lags Behind in Protections

Virginia lags far behind in the protection of domestic violence victims in the workplace. The legislature should move to adopt a law similar to those enacted by California and New York to ensure that employees suffering from domestic violence are not terminated or discriminated against for taking time off to get medical or mental assistance needed in order to get better.

Currently, Virginia only protects victims of domestic violence (and other crimes) for the time taken to respond to a summons or subpoena related to the criminal proceedings. Va. Code § 18.2-465.1. Virginia also requires an employer to permit a victim of a crime to be present at all criminal proceedings related to a crime against the employee. Va. Code 40.1-28.7:2.

Virginia also offers suggested (not binding) guidance to employers asking them to consider allowing victims of all crimes (including domestic violence) to be able to attend court without loss of pay. Va. Code § 19.2-11.01(A)(3)(a). Virginia should follow the lead of New York and California and protect domestic violence victims in the workplace.

Conclusion

If you need assistance with employment law issues, 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: Changing Jobs with a 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.

One of our major practice areas involves representing individuals in security clearance law matters.

We frequently speak to individuals who have issues or concerns relating to their security clearances and are seeking a new position elsewhere. We decided to put together some tips for employees that are changing positions in the context of holding a security clearance.

Tips for employees leaving one cleared position for another:

Leave Your Existing Employer on Good Terms

It is very important to leave your employer on good terms when taking a new position elsewhere. The better the departure, the less likely that you will have issues relating to your security clearance. Keep in mind that a former employer can still report security concerns about a former employee even when they have left.

I recommend the cordial departure approach with supervisors and the company and that the individual take every step possible to keep their former employer happy while you leave.

Know the Status of One’s Clearance Before You Go

It is important to know the status of your clearance before you leave. Too often we have seen a person accept a new position but not realize that their security clearance was out of scope or pending re-investigation, possibly leaving them without an active clearance when they leave.

There is also the possibility that a negative incident report is pending which is unknown at the time of departure. This is a major potential problem where an employee has left their position thinking that all is okay, but then later find out (usually after 2 weeks at the new job) that there is a problem with their security clearance which often leads to a termination.

Have the New Employer Check Your Status Before Leaving the Former Employer 

The individual leaving employment should confirm and re-confirm with the new employer’s security office the status of their security clearance.

This is especially the case where an individual maintains a security clearance in one system, i.e. the Department of Defense JPAS database and attempts to move to a position with an Intelligence Community agency (i.e. NSA, CIA) which is covered by a different database known as Scattered Castles. Sometimes these two databases do not sync well which can cause issues and delays.

Individuals Having Security Incidents Should Take it Slow Before they Leave

One of the most common problems that we come across is when an individual knows that they have an incident report but they still attempt to move to the new employer before their security issue is adjudicated and cleared.

If an individual knows that they have an incident report pending they are typically much better off by staying with their existing employer who will likely keep them employed while the matter is adjudicated. The new employer is far more likely to tell an individual, only after they have left their prior employment, that their clearance has an issue and that they can no longer hire them.

Special Transition Notes

When there is a difficult transition like when the employer is upset with an individual leaving their position for another job it is important to be very careful what the employee takes when with them when they leave the office. We have had numerous cases where an employee leaves one employer under less than favorable circumstances and then the employer claims loss of confidential information and reports the employee to clearance authorities.

In particular, an individual should be very careful in what they take from their computer or printed files from the office. If there is any question, get permission from the employer. Some clients have been reported for taking company emails, files or other information, even if not classified which results in significant security clearance issues.

Conclusion

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

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Legal Insider: New Virginia Law Restricts Non-Disclosure Agreements

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.

A new Virginia employment law has gone into effect that restricts what employees and employers can agree to in non-disclosure agreements as a condition of the employee’s employment.

On February 22, 2019, the Virginia Governor signed off on House Bill 1820, affecting all Virginia employers. HB 1820 was unanimously passed by both the Virginia House of Delegates and the Virginia Senate during the Virginia General Assembly 2019 Regular Session.

The new law specifically limits the scope of non-disclosure and confidentiality agreements between employees and employers regarding the disclosure or concealment of sexual assault claims.

The new law, at Va. Code § 40.1-28.01, prohibits a Virginia employer from requiring an employee or prospective employee from agreeing to a non-disclosure or confidentiality agreement that attempts to conceal the details relating to a claim of sexual assault as a condition of employment. Under the new Virginia law, claims of sexual assault include claims of rape, forcible sodomy, aggravated sexual battery and sexual battery.

Va. Code § 40.1-28.01 provides that these types of settlement provisions are contrary to public policy, void and unenforceable in the courts. Va. Code § 40.1-28.01 further provides that the new prohibition on non-disclosure and confidentiality agreements will in no way limit other grounds that exist in law or equity for the unenforceability of any such agreement or any provision of such agreement.

The new law can affect new and existing non-disclosure or confidentiality agreements that attempt to hide claims of sexual assaults related to employment.

Conclusion

If you need assistance with a federal retirement or an employment issue, 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: U.S. Women’s Soccer Team Members File Suit for Unequal Pay

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 April of 2016, we earlier wrote on the efforts of the U.S. Women’s National Soccer Team and their efforts to receive equal pay as compared to the U.S. Men’s National Soccer Team.

Much has happened in the past three years to warrant an update. For one, the women’s team has won another World Cup, recently with a 2-0 victory over the Netherlands. For another, national sponsors of soccer (e.g., Procter and Gamble) have begun to join the fight for equal pay on the side of the women’s team. Lastly, the equal pay movement has become stronger over the past three years. Attached is a copy of the original equal pay complaint.

Equal Pay Cases Take a Long Time

It is an unfortunate fact that the EEOC has taken so long with this case. As mentioned earlier, the case started in early 2016 and originally involved the five team captains of the U.S. Women’s Soccer Team, such as Hope Solo and Carli Lloyd, who filed a wage discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of all members of the women’s team against the U.S. Soccer Federation.

Since the 3-year delay at the EEOC, all 28 women’s team players have withdrawn their EEOC case and filed suit in the federal district court in Los Angeles, alleging that the U.S. Soccer Federation has engaged in several years of institutional gender discrimination. A copy of that complaint is linked.

Equal Pay Complaint

In the latest filing by plaintiffs Alex Morgan, Megan Rapinoe and other women’s team members, they allege the serious pay discrepancies that continue to exist between the men’s and women’s teams.

Specifically, members of the women’s team can potentially earn a maximum of $99,000 a year, while members of the men’s team earn an average of $263,320 per year. Other disparities include the U.S. Soccer Federation only providing charter air flights to the men’s team in 2017, but requiring the women’s team to take commercial air flights.

The reason why this case is so newsworthy is the fact that the women’s team has been out performing the men’s team in rankings and World Cup wins for a long time. The women’s team has been ranked number one in the world for 10 of the past 11 years. Also, in more recent years, the women’s team has been outperforming the men’s team in revenue and profits as well, and in viewership. For instance, the 2019 Women’s Cup Final viewership was 22% higher than the 2018 Men’s Cup Final.

While the Soccer Federation has claimed market considerations as the reason for paying the men’s team more, the women’s team, according to the complaint, has started to outperform the men’s soccer team in revenue and profit in the most recent accounts. Additionally, according to the complaint, the women’s team had even proposed a revenue-sharing agreement where women’s player compensation would be less if their revenue decreased. It seems as if the U.S. Soccer Federation needs a reality check.

Conclusion

It is time that the U.S. Soccer Federation recognize and pay the women’s team at least the same as their male counterparts on the two national teams and provide them the same benefits. We represent employees in employment matters.

If you need assistance with a federal retirement or an employment issue, 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: The Benefit of Severance Agreements for Employers and 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.

In Virginia (and in many other jurisdictions) severance agreements are contracts that compensate an employee in exchange for them agreeing to leave their employment and waiving all claims against an employer.

Most employees in Virginia are considered “at will,” which means they can resign or be fired at any time by an employer. When employment ends, an employer may offer (or an employee may request) a severance package in exchange for the employee’s waiver of all rights to sue for discrimination, sexual harassment, whistleblower retaliation or other alleged violations of law by the employer.

Employers, in the absence of an employment contract which requires severance, generally have no obligation to provide employees severance pay. If severance pay is offered, an employer will offer the employee a Severance Agreement along with the proposed compensation.

Employer Severance Agreements

A Severance Agreement is just a contract between an employee and an employer that resolves all outstanding employment matters between them. A Severance Agreement may be offered to an employee who resigns or is terminated. Additionally, Severance Agreements can also be offered to employees who are laid off or who are facing retirement.

In order to be valid, a Severance Agreement must have consideration — i.e., something of value to which the employee is not already entitled. Employers are usually required to provide an employee time to consider the Severance Agreement before signing and advise them to consult with counsel before signing. An employee typically has a 21-day consideration period to accept an employer’s Severance Agreement unless the employee is over 40 years of age.

The Older Workers Benefit Protection Act (OWBPA) requires that an employer provide employees over 40 years of age with a 45-day consideration period and at least a 7-day revocation period.

Reasons for Severance Agreements

There are a number of reasons why a Severance Agreement may be proposed or agreed to by employers. These reasons can include the following examples, but many others exist:

  • An employee is fired, for conduct or performance and the employer wants to avoid risk for potential claims against them by providing severance in exchange for a waiver of employee claims.
  • An employer is looking to downsize their operations and seeks to avoid potential liability in the process by offering severance terms to a number of employees.
  • An employee has been fired, no Severance Agreement was initially proposed by the employer but the employee approaches the employer seeking one.
  • An employee wants to resign and seeks to initiate severance negotiations with the employer.

Common Severance Agreement Terms

Some of the terms to consider in a Settlement Agreement may include, but are certainly not limited to the following:

Severance Pay
Non-Disparagement
Retirement benefits
Re-employment possibilities
Tax consequences
The timing of severance payments
Confidentiality terms
Security clearance issues
Continuation of employment benefits
Rights to unemployment compensation
Waiver of Claims
Scope of non-competition
Preservation of trade secrets
References and reference letters
Recommendation letters (Positive and Neutral)
Applicable law
Consequences for violating the Severance Agreement

Severance Agreements will almost always include a General Release (Waiver) that stipulates the employee cannot sue his or her employer for wrongful termination or attempt to seek unemployment benefits.

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.

Conclusion

If you are in need of employment 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: 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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