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

Legal Insider

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

By John V. Berry, Esq.

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

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

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

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

Here are a few examples of a hostile work environment:

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

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

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

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

Legal Insider

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

By John V. Berry, Esq.

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

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

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

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

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

Legal Insider

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

By John V. Berry, Esq.

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

Federal Employees in Virginia

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

Private Sector Employees in Virginia

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

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

Public Sector Employees in Virginia

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

County and Municipal Employees in Virginia

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

Overall Concerns

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

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

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

Legal Insider

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

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

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

Legal Insider

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

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

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

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

Legal Insider

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

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

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

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

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

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

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

Legal Insider

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

 What is the Hatch Act?

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

Purpose of the Hatch Act

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

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

(more…)

by John V. Berry — October 10, 2016 at 2:00 pm 0

New Berry&Berry

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

We often represent federal employees in federal agency misconduct investigations. The types of misconduct that a federal agency can investigate are too numerous to list here, but some of the most common types of misconduct involve:

  • Time card and attendance issues
  • Misuse of government computer and internet
  • Misuse of government credit card, vehicle or travel card
  • Allegations of discrimination or harassment
  • Alleged dishonesty or lack of candor
  • Allegations of off-duty criminal or traffic conduct
  • Inappropriate promotions and selections cases

The Investigation Process

The usual process for a federal employee misconduct investigation begins when a federal employee is notified that an investigator needs to speak with the employee.

(more…)

by Kimberly Berry — September 26, 2016 at 2:00 pm 13 Comments

New Berry&Berry

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

We are seeing the start of what may be a nationwide trend after Massachusetts recently became the first state to ban employers from asking job applicants about their salaries during the job interview process.

The bipartisan legislation that was signed into law in early August requires an employer to state a position’s compensation upfront based on what the job applicant is worth to the employer as opposed to what the job applicant made in his or her previous employment position.

Now other legislators are working at the Congressional level, as well as at the state level, to use this law as a model to create similar legislation. On Sept. 14, 2016, a bill was introduced in Congress by Washington, D.C. Representative Eleanor Homes Norton (D) and fellow Democratic Representatives Rosa DeLauro from Connecticut and Jerrold Nadler from New York.

Under the Pay Equity for All Act of 2016 (H.R. 6030), an employer could be subject to a fine of up to $10,000 if it asks questions about an applicant’s salary history. Employers could also be liable to employees or prospective employees for special damages up to $10,000, in addition to attorneys’ fees. (more…)

by John V. Berry — September 12, 2016 at 1:30 pm 0

New Berry&Berry

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

There are usually two parts to a security clearance case: (1) responding to the security concerns at issue (individual disqualifying and mitigating factors) and (2) overall mitigation.

Overall mitigation is most often used when the security issues are true or partially true, but they should not bar an individual from the ability to retain or obtain a security clearance. Overall mitigation is usually referred to as the Whole-Person Concept for security clearance matters. This evaluation focuses on whether the individual, even with security concerns, is an acceptable security risk. (more…)

by John V. Berry — August 8, 2016 at 1:30 pm 0

New Berry&Berry

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

Many federal employees have a limited understanding of the purpose of the Merit Systems Protection Board (MSPB). The MSPB is an independent federal agency that functions as a quasi-judicial court system protecting certain rights of federal employees. This article provides a brief overview of the MSPB process.

Types of MSPB Cases

The MSPB is tasked, in large part, with the following types of federal employee appeals:

  1. Removals (terminations) or demotions (discipline or for performance)
  2. Disciplinary suspensions of more than 14 days
  3. Federal retirement related to OPM actions
  4. Whistleblower
  5. Denials of within-grade salary increases
  6. Reduction-in-Force (RIF)
  7. Discrimination based on military service (USERRA)

The MSPB also has jurisdiction over other types of federal employee appeals, but the ones listed above are the most common.

What Happens During an MSPB Appeal?

Once a federal employee files an initial MSPB appeal, an administrative judge is assigned to hear the case, which is similar to a regular civil (more…)

by John V. Berry — July 25, 2016 at 2:00 pm 0

New Berry&Berry

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

As noted in our earlier article, financial issues are the most common issues that can result in the loss of, or inability to obtain, a security clearance. In security clearance cases, financial issues are generally referred to as Guideline F cases. In Guideline F cases, the government’s concern is generally how a person has handled his or her finances and/or his or her vulnerability to financial manipulation given a pattern of overspending or debt. (more…)

by John V. Berry — July 11, 2016 at 2:00 pm 2 Comments

New Berry&Berry

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

An interesting topic in Virginia employment law is an employee’s right to privacy in the workplace.

While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and courts.

(more…)

by John V. Berry — June 13, 2016 at 1:15 pm 0

Berry&BerryRevised

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

On May 12, 2016, Director of National Intelligence James Clapper issued the first policy on the federal government’s use of social media when evaluating background investigations and security clearances for federal employees and contractors.

Security Executive Agent Directive 5 does not require that security clearance decisions necessarily consider social media information, but instead permits the collection of “publicly” available social media information if an agency official determines it to be a useful tool for security clearance investigations. It is extremely likely that most, if not all, agency officials will find such information to be a necessary tool for security clearance investigations in the future given how significant social media has become in our society. (more…)

by John V. Berry — May 31, 2016 at 1:15 pm 0

Berry&BerryRevised

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

On May 18, 2016, the Department of Labor (DOL) issued a final rule making millions of middle-class workers eligible for overtime pay for the first time.

The new DOL rule, which was last updated more than 10 years ago, is set to go into effect on Dec. 1, 2016. A lot of things have changed in the time since the last revisions with respect to wages and inflation. By far, the most significant change in the new regulation is that the DOL has doubled the annual salary threshold that determines overtime pay eligibility.

Prior to the new rule, workers who earned more than $23,660 a year were not eligible for overtime pay, which is time and one-half of a worker’s regular hourly rate of pay, if they worked beyond 40 hours in a workweek and performed certain executive, professional, or administrative duties. The new DOL rule leaves the existing duties test in place but increases the annual salary threshold to $47,476. It is estimated that the new regulation will extend overtime pay to over four million workers around the country by next year.

In addition, the new annual salary threshold of $47,476 is expected to rise to more than $51,000, based on wage growth, when the first scheduled update occurs on Jan. 1, 2020. The DOL plans to automatically increase the annual salary threshold every three years after implementation.

The move by DOL has received significant press coverage and many employers are working toward implementing the new rule. Eligible workers will likely be provided more information from their employers before the new rule goes into effect.

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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