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. Read More
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. Read More
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.
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.
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. Read More
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. Read More
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:
- Removals (terminations) or demotions (discipline or for performance)
- Disciplinary suspensions of more than 14 days
- Federal retirement related to OPM actions
- Whistleblower
- Denials of within-grade salary increases
- Reduction-in-Force (RIF)
- 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 Read More
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. Read More
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.
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. Read More
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.
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.
Trade secrets are generally valuable information that could give a company an economic edge over its competitors and that are not easily attainable by others outside of the company. President Obama signed into law on May 11, 2016 a bipartisan bill that combats theft of trade secrets that were previously not protected under federal law.
The Defend Trade Secrets Act of 2016 (DTSA) will have an effect on employers and employees in all state and federal jurisdictions. Before the law passed, employers and employees had to navigate different state laws regarding issues involving the misappropriation of trade secrets. These state laws varied, which made it difficult for companies to construct consistent policies regarding their trade secrets. While the DTSA does not completely eliminate the different state laws, it provides for consistency in trade secret cases. Read More
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.
The federal government uses 13 adjudicative guidelines to determine whether federal employees and contractors should be eligible for a security clearance to gain or maintain access to classified information.
These guidelines include:
- Guideline A: Allegiance to the United States
- Guideline B: Foreign Influence
- Guideline C: Foreign Preference
- Guideline D: Sexual Behavior
- Guideline E: Personal Conduct
- Guideline F: Financial Considerations
- Guideline G: Alcohol Consumption
- Guideline H: Drug Involvement
- Guideline I: Psychological Conditions
- Guideline J: Criminal Conduct
- Guideline K: Handling Protected Information
- Guideline L: Outside Activities
- Guideline M: Use of Information Technology Systems
Based on the 42 decisions issued by the Department of Defense (DoD), Defense Office of Hearings and Appeals (DOHA) since January 1, 2016, by far the most common reason why a security clearance is denied is based on Guideline F.
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.
The federal government issued a final rule, which is effective on May 9, 2016, completing regulations providing same-sex spouses with the same rights under the Family and Medical Leave Act (FMLA) as opposite-sex spouses. The FMLA rights had previously applied only to opposite-sex marriages.
An interim version of these rules had been in place for federal employees since 2013. The change, along with other benefits adjustments instituted by the U.S. Office of Personnel Management (OPM), is a result of the June 26, 2013, U.S. Supreme Court decision, which struck down the Defense of Marriage Act.
The FMLA permits federal employees to take up to 12 weeks of unpaid leave in a year in connection with the birth of a child, adoption, the care of a spouse with serious health conditions, for personal serious health conditions, and for matters involving family demands that relate to a family member’s active duty service.
In addition to leave, same-sex spouses have also been eligible since 2013 for other federal employee benefits, such as coverage under health care and other insurance programs and eligibility for retirement annuity survivor benefits. OPM has provided a synopsis of answers to questions regarding such benefits.
OPM and the federal government have moved relatively quickly following the U.S. Supreme Court’s ruling in 2013 to make changes to comply with the law for same-sex spouses. Future adjustments by OPM and other federal agencies can be expected as they comply with the law.
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.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located a Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.
By John V. Berry
As has been widely reported in the news recently, five members of the U.S. women’s soccer team filed a gender wage discrimination complaint regarding the disparity between their salaries and those of the U.S. men’s soccer team. In light of the extremely strong and noteworthy facts in this case, we thought it might be interesting to take a closer look at some of the potential disparate pay issues in this high profile complaint.
As above-mentioned, the case currently involves the five team captains of the U.S. women’s soccer team, including 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. The women claim that the U.S. Soccer Federation was paying members of the men’s soccer team more than the women’s team members. Some of the details revealed about the complaint suggest that the women’s soccer team members have a very strong case, which is not always typical in most equal pay cases. Usually, it is hard to prove the disparities in pay between men and women. Yet, that does not seem to be the case in this matter.
The women note that they are paid between 28% and 62% less than the men depending upon certain variables. The members of the U.S. women’s soccer team receive $72,000 for playing 20 regular season games, compared to the men whose members each make a minimum of $100,000 for playing 20 regular season games. These amounts only represent base salaries. Women can make a bonus of $1,350 for winning a game, but receive no bonus for losing (yet men do).
Essentially, if a member of the U.S. women’s soccer team wins all 20 games, she will earn $99,000. Depending on the variables, if a U.S. men’s soccer team member wins all 20 games, he would have the potential to earn $263,320, essentially $164,000 more than a U.S. women’s soccer team member. If a U.S. men’s soccer team member loses all 20 games, he would still earn $100,000.
Given that the EEOC will have to investigate these disparities, it is important to note the following facts cited in the complaint and various media accounts:
- In 2015, the U.S. women’s soccer team generated $20,000,000 more in revenue than the U.S. men’s soccer team;
- The U.S. women’s soccer team won the World Cup in 2015, while the U.S. men’s soccer team finished 11th overall in 2015; and
- The U.S. women’s soccer team won its third World Cup on July 5, 2015, in the most viewed soccer game in American television history.
Based on the complaint and information gleaned from media outlets, the case appears to present many strong facts demonstrating a disparity between the wages paid to the members of each U.S. national soccer team. Unless the matter settles, the complaint will likely lead to a lawsuit against the U.S. Soccer Federation filed by either the EEOC or the U.S. women’s soccer team members, which would end up in U.S. District Court. In light of the current facts that have been revealed, it would not be a surprise if the U.S. Soccer Federation settles the case.
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.
