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.
Federal employees are usually told that a Performance Improvement Plan (PIP) is only designed to benefit them and make them better performers. This, unfortunately, is usually not the case.
Managers often promise employees that they will be given special assistance to ensure they are successful during their PIP, only to later find themselves facing termination a few months later when they have not received any of the promised assistance during the PIP process. For this reason, it is crucial that federal employees on PIPs, or those who have just received a poor performance evaluation, be on guard.
Promised Opportunity to Improve
PIP procedures were enacted by Congress and require federal agencies to provide employees with an opportunity to improve prior to taking performance-based actions. The federal statutes, regulations, and case law dealing with the PIP process emphasize the importance of providing an employee with a meaningful opportunity to improve, as a PIP is meant to assist employees in achieving performance goals.
As part of the meaningful opportunity to improve, an employee generally must receive the assistance promised by the agency at the onset of the PIP period. Moreover, a supervisor’s negative actions toward an employee during or after the performance of his or her PIP period may constitute a violation of PIP procedures.
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 a number of circumstances that may cause the U.S. Office of Personnel Management (OPM) to end a federal employee’s disability retirement.
The three most common reasons why OPM would rescind federal disability retirement benefits include:
- Restoration to Earning Capacity: Until a federal disability retiree reaches the age of 60, he or she will typically be given a survey by OPM about the disability retiree’s annual income in the previous year. OPM may consider a disability retiree restored to earning capacity if the individual’s earnings from wages and/or self-employment in any calendar year while a disability annuitant reaches or exceeds 80 percent of the current rate of basic pay of the position the individual occupied immediately prior to retirement. If the disability retiree’s income reached the 80 percent earnings limit in any such calendar year, OPM will usually write (although sometimes belatedly) and inform the disability retiree that his or her disability annuity will terminate.
- OPM Deems an Individual Recovered: OPM may contact a disability retiree and ask the retiree to provide a current medical report from a physician regarding the status of the medical condition that was the basis for disability retirement. A disability retiree can also be asked by OPM about his or her current employment status and other relevant activities. If this information shows a recovery, then the disability retirement annuity may cease. If a disability retiree does not respond to the request by OPM, his or her disability annuity payments may also be suspended.
- Re-employment in the Federal Government: If a disability retirement annuitant is re-employed in the federal sector, his or her disability retirement annuity amount may change or terminate.
If OPM suspends or terminates an individual’s disability retirement annuity, the disability retiree can contest OPM’s determination and/or move to have his or her disability annuity restored depending on the situation.
For example, if a disability retiree is restored to his or her earning capacity but then later drops below the 80-percent threshold, the disability retirement annuity can be restored. Other examples include situations involving medically recovered individuals who experience later recurrences of the disability.
We represent employees in federal employee retirement and 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
A movement that has started in Europe would greatly influence our own employment laws if adopted in the United States. The movement is often referred to as the “Right to be Forgotten.”
If the movement takes hold here, we expect that such a change to the laws of the United States would definitely affect individuals seeking employment.
What is the Right to be Forgotten?
The Right to be Forgotten is simply the ability of negative personal information on the Internet to eventually be deleted or delisted on the Internet. This right is the result of a May 2014 ruling by the European Union’s Court of Justice which found that individuals can ask search engines to remove specific results for inquiries that include their name when the interest in those results is outweighed by the individual’s privacy rights.
This right, as it has been implemented in Europe, has applied mostly to search engines, such as Google, or websites, such as Wikipedia. For example, in Europe, information about misdeeds as a minor, old financial issues, or petty crimes from a long time ago could be deleted. In order to make such a request, a person can ask a search engine, like Google, to delink the material at issue.
Google currently provides a form for this type of request for covered individuals. If such a request is approved, then Google will delink the materials at issue from their European websites (not google.com in the United States).
There have been a number of lawsuits in Europe that have been successful at eliminating negative information on the Internet which no longer serves a purpose. The goal has been to enable individuals with bad prior media exposure, or perhaps unflattering or inappropriate pictures, the ability to move on with their lives without having the negative information remain public forever. To an extent, the Right to be Forgotten functions in a similar manner as outdated negative credit information which eventually falls off a credit report.
How the Right to be Forgotten Might Assist Employees
If implemented in the United States, the Right to be Forgotten would have a significant effect on people seeking employment. While there are legal issues that may exist involving an employer’s search of a job applicant’s background on the Internet, many employers still search prospective employees’ backgrounds on the Internet.
A job applicant’s likelihood of successfully obtaining the employment he or she is seeking significantly lessens if negative information is found about the applicant on the Internet by the potential employer. Should the Right to be Forgotten be implemented in the United States, it would be easier for those individuals that have significant negative information on the Internet to attempt to have a fresh start.
According to a survey by Adweek, 9 in 10 Americans are in favor of the Right to be Forgotten. It may take a few years, but this type of legislation is likely to come to the United States in some form or another. When it does, it may enable many individuals a new start, especially with regard to employment.
We represent employees in security clearance matters. If you need assistance with a security clearance or other 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
Under new legislation passed by Congress, federal agencies will begin focusing on social media information as part of the security clearance review process. The new provisions were placed in a 2016 Omnibus appropriations bill (see Chapter 110–Enhanced Personnel Security Programs) by Congress that became law on December 18, 2015. Essentially, the new law establishes a more intensive personnel security clearance program for federal agencies.
One of the central pieces of the new legislation requires the consideration of social media as part of the security clearance process. The legislation does not specify how federal agencies should use, gather, and/or evaluate social media data that they review from clearance holders. Those rules will be forthcoming in the future.
The law also requires that federal agencies establish plans for investigation of existing security clearance holders at least twice within a five-year period. Not many details were provided by Congress in the legislation regarding these additional checks, but it is expected that federal agencies will conduct automated or random checks of a clearance holder within this timeframe. The rules will likely be set for this process in the coming months by the Director of National Intelligence. The goal of the new legislation seems to be in moving to a more continuing process of evaluating eligibility for security clearances.
The new legislation also requires that agencies seek more information regarding clearance holders, including from other public sources such as commercial and consumer reporting databases. These new sources can include, but not be limited to, criminal, credit, and/or financial watch lists and civil legal records. The new law requires implementation of these changes to the security clearance process within the next five years.
We represent employees in security clearance matters. If you need assistance with a security clearance 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
A reasonable accommodation is a modification to employment conditions or work practices that provides employees with disabilities equal opportunity at employment.
Reasonable accommodations apply to both employees and job applicants in all states and the District of Columbia. Most employees are generally covered under the Americans with Disabilities Act (ADA), but federal employees are covered under a similar law known as the Rehabilitation Act. In Virginia, employees are also covered under the Virginians with Disabilities Act. The Equal Employment Opportunity Commission (EEOC) and other civil rights governmental entities enforce these laws.
Requesting a Reasonable Accommodation
A request for reasonable accommodation can be formal or informal. Some employers have specific forms covering reasonable accommodation requests and others simply involve verbal discussions between the employee and his/her immediate supervisor or human resources department.
The most typical accommodation involves an employee who has developed a medical condition or disability that requires some changes to his/her working arrangement.
The discussion between an employer and employee is often referred to as the “interactive process,” which means that the employer works with the employee in an effort to arrive at a reasonable accommodation that does not create an undue hardship on the employer. Although the employer is not required to grant every accommodation request, the employer is required to make a reasonable effort at resolving the accommodation at issue.
Examples of Reasonable Accommodations
- An employee develops a back disability and requests a new chair because his current chair is aggravating his back condition.
- An employee has developed a serious medical condition and is undergoing medical treatment in the morning. She informs her supervisor that she needs an adjustment in her start time for eight weeks while she undergoes treatment.
- An employee develops cancer and requests daily breaks at a certain time to take his medication.
- An employee develops a disability that prevents her from performing her assigned duties so she requests a position reassignment.
For more information, the EEOC has published additional guidance on reasonable accommodations.
We represent employees in reasonable accommodation matters in the Commonwealth of Virginia, the District of Columbia, and Maryland. If you need assistance with an employment law 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
On Nov. 2, 2015, President Barack Obama announced the first step to provide individuals with former criminal convictions with a meaningful opportunity to apply for federal employment. Applicants were previously required to check a “Yes” or “No” box to indicate whether they have ever had a felony criminal conviction.
Not surprisingly, this check box has made it very difficult for an individual with a prior criminal conviction that is even decades old to have a chance to compete for a federal employment position. One New York City study cited by the National Institute of Justice indicated that individuals with former criminal records had a 50 percent less chance than the average individual of receiving a job offer.
While additional action is needed by Congress to provide stronger protections, the President has directed the Office of Personnel Management (OPM) to modify the rules for federal employment purposes that would effectively delay criminal history inquiries until later in the federal hiring process in order to provide a chance for an individual to be evaluated on his or her merits before having to respond to any questions about former convictions.
This action by President Obama is an important first step. There is a significant and mostly bipartisan “Ban the Box” movement across the country to enable individuals with former felony convictions to withhold disclosure of such convictions when applying for new federal positions. Members of both major political parties have supported these reforms. So far, over 100 cities and counties and 19 states have already enacted such reforms.
Therefore, it is perhaps an opportune and welcome time for President Obama and Congress to work together to help resolve this problem since individuals with criminal convictions who are starting to rebuild their lives still continue to remain the target of discrimination during the employment hiring process.
We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
Being terminated from employment can be very devastating, especially when it is completely unexpected. Most often, employees allow their emotions to get the best of them and become angry upon receiving notice of termination from their employer. However, it is very important for employees to try to handle a termination the right way. Here are five tips to consider if you are being terminated:
- Handle Termination Day with Grace: This is by far the most important tip and usually one of the most difficult to do. Individuals who cannot keep their emotions in check often end up in a much worse situation than those who gather their belongings and leave quietly. For example, if an individual makes a scene when they are terminated, the employer may exaggerate the situation and call the police. Furthermore, leaving in a pleasant manner makes it much easier to settle a wrongful termination case with the employer later. By doing so, it also reduces the possibility that the employer will challenge the former employee’s attempt to obtain unemployment compensation or cause a problem if the former employee later applies for a security clearance or another employment position.
- Don‘t Take Employer Materials: Individuals should be very careful not to take proprietary employer materials, physical items, or other types of employer documents or digital materials without permission when leaving employment. As a defense, an employer can claim that the former employee stole materials or proprietary data if the former employee later files a wrongful termination claim.
- Don‘t Sign Agreements Presented on Termination Date: Employers will often try to limit their liability by presenting agreements to employees they are terminating. Such agreements might offer a week’s pay in exchange for extinguishing all of the employee’s rights. Given the emotional trauma of being terminated, individuals should never sign a binding agreement as they are being terminated. Before signing such an agreement, it is very important to have an attorney review it. Once such an agreement has been signed, it is very difficult to take any type of legal action later.
- Consult With an Attorney if Wrongful Termination Issues Arise: Not all terminations are wrongful. However, if an individual believes that he or she was wrongfully or illegally terminated and is concerned with his or rights, he or she should seek legal advice from an employment attorney in a timely manner since many employment rights are time sensitive.
- Find a Reference: If a former supervisor will not serve as a reference, try to seek others, such as former supervisors or coworkers, who no longer work for the former employer. Having employment references will vastly improve one’s chances of quickly obtaining new employment. Even if an individual has been terminated, having someone available who can speak to his or her work ability can help mitigate the damage of the termination.
It may seem like the end of the world when one is terminated, but in the vast majority of employment cases that we see individuals bounce back and obtain new employment relatively soon. Many of our former clients contact us a year or so after being terminated and tell us that they are in a better place of employment and are much happier. The odds of this happening will increase when a termination is handled with grace.
We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
Depending upon the security concerns involved, it can be extremely helpful when federal employees or contractors facing security clearance issues have support from a medical professional.
In security clearance matters, it is usually very beneficial and important for our federal employee and contractor clients to consult with a medical professional if appropriate and when medical or medical-related security concerns are under review by clearance authorities.
Types of Security Concerns That Could Involve Medical Professionals
Depending upon the facts of the security clearance case, there are a variety of security concerns for which a seasoned medical professional may be helpful to a security clearance applicant or holder. One of the most common types of security clearance cases in which a medical professional may be helpful involves the psychological or mental health condition of the security clearance applicant or holder. Medical professionals may also be of assistance when a security clearance applicant or holder has security concerns involving illegal prescription drug use and/or an alcohol-related traffic matter.
Use of Medical Professionals in Security Clearance Matters
When an individual’s security clearance is at issue, it can be very helpful to obtain a medical professional’s review of the underlying issues for use in mitigating the security concern. When such situations arise, whether the matter is before the Department of Defense (DoD) Consolidated Adjudication Facility (CAF) (for DOD clearance holders) or any of the other clearance adjudication agencies (Federal Bureau of Investigation, National Reconnaissance Office, Department of State, Department of Energy, etc.), the clearance authority will ask whether there are mitigating factors present regarding the security concerns at issue. 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
On September 7, 2015, President Obama signed an executive order establishing paid sick leave for federal contractors and subcontractors. The order is an attempt to promote economy and increase efficiency and cost savings in the work performed by employees who contract with the federal government. Federal contractors and subcontractors can earn up to seven days or more of paid sick leave annually, including paid leave allowing for family care. The order does not supersede any federal, state or local laws, and collective bargaining agreements that provide better benefits.
Pursuant to the order, paid leave can be used for illness, injury, or medical condition; obtaining medical diagnosis or care, including preventative care, from a health care provider; caring for a child, parent, spouse, domestic partner, or any other blood relative or closely-associated equivalent of a family relation; and for domestic violence, sexual assault, or stalking.
Employees will be permitted to carry over unused leave from one year to the next. Unused leave will be reinstated for employees rehired within 12 months post-separation by a covered federal contractor or subcontractor. However, employees must request paid sick leave orally or in writing at least seven calendar days in advance of when the need for leave is foreseeable, and in other cases as soon as is practicable. Health care certification or documentation, required no later than 30 days from the first day of leave, is only required if the employee is absent for three or more consecutive workdays.
This is the latest action taken by President Obama in a series of administrative actions aimed at providing benefits to employees. By September 30, 2016, the Secretary of Labor will issue regulations to implement the order. However, it is important that federal contractors and subcontractors note that once the order becomes effective on January 1, 2017, executive departments and agencies will require that new government contracts, contract-like instruments, and solicitations, including lower-tier subcontracts, include a provision specifying that all employees in the performance of the contract or any subcontract thereunder shall earn not less than one hour of paid sick leave for every 30 hours worked. If the federal contractor or subcontractor already maintains a sick leave benefits policy that includes the same or greater paid sick leave benefits, the existing policy will satisfy the order’s requirements.
We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
On June 16, 2015, the California Labor Commission ruled in Uber v. Berwick that an Uber driver was an employee and not an independent contractor. There have been a number of new concerns for employers and independent contractors alike since the California Labor Commission issued this decision.
One of the most important aspects of the Uber decision is not its direct applicability to independent contractors in Virginia, but rather the direction that these types of classification decisions are headed. Specifically, there is a clear trend towards governmental agencies finding that independent contractors have been misclassified and are actually employees. When this kind of misclassification occurs, it becomes costly for employers and causes confusion for employees.
The Costs of Misclassifying Employees as Independent Contractors
The major differences between an independent contractor and employee of a company largely involve taxes and benefits. Employees pay less in taxes and receive more benefits than independent contractors. If an employer classifies an individual as an independent contractor, the employer does not need to pay benefits to the contractor and saves on taxes because the employer does not pay its portion of Social Security, Medicare, or state unemployment taxes. However, if an employer incorrectly classifies an employee as an independent contractor and the employer is audited or sued, there can be serious consequences for the employer.
In particular, an employer found to have misclassified an individual as an independent contractor can be held liable for back taxes, tax penalties, benefits and wages (e.g. overtime).
The Uber Decision
While the Uber decision is being appealed, it is important to understand why the California Labor Commission ruled that the Uber driver was an employee and not an independent contractor. The Uber decision focuses on a number of issues.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
The Fairfax County government has a policy to ensure that all its employees observe the standards of conduct, code of ethics, and other workplace rules. Department heads and supervisors must treat all employees in a fair and equitable manner, inform employees of rules governing conduct and discipline, and investigate and administer appropriate disciplinary action if necessary.
Disciplinary actions can range from warnings to dismissals. According to Fairfax County Personnel regulations, disciplinary action “will be taken only for good cause and after careful review of allegations with a goal, where appropriate, of correcting problem situation . . . and must be taken when warranted to promote the efficiency of the Fairfax County service.”
Investigation
When an employee commits an offense, the first step is for the department head or supervisor to investigate the alleged employee offense and obtain complete facts. Depending on the severity of the offense, the investigation may be detailed and conducted by a Fairfax County investigator or it can be short and conducted by the employee’s supervisor. The investigation may or may not include an interview of the employee.
Proposed Disciplinary Action
If the offense warrants a disciplinary action, a formal advance notice letter will be issued to the employee following the investigation. The letter will specify in sufficient detail the factual basis for the proposed disciplinary action, a listing of any previous offenses, and the employee’s right to respond, which is usually within five business days from receipt of the letter. The severity of the disciplinary action will be determined by the significance of the employee’s offense. Chapter 16 of the Fairfax County regulations provides the range of potential disciplinary actions for employees.
Decision
Following the employee’s response to the proposed disciplinary action, the department head will make a final decision on the issuance of the formal disciplinary actions of a suspension, dismissal, or demotion. If employees feel that they have been treated unfairly, they have a right to grieve the final decision if it results in a suspension, dismissal, or demotion. The grievance procedure is outlined in Chapter 17 of the Fairfax County regulations.
We represent Fairfax County government employees in labor and employment matters. If you need legal assistance, 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
On July 21, the U.S. House of Representatives unanimously passed a new anti-discrimination bill. The bill, referred to as the Federal Employee Antidiscrimination Act of 2015, H.R. 1557, enhances existing discrimination laws. The protections proposed by the bill largely focus on federal agency and supervisor accountability involving discrimination of federal employees in the workplace.
If the bill becomes law, it would require that each federal agency restructure its operations so that the Equal Employment Opportunity (EEO) program head reports directly to the agency head. Federal agencies would also be required to post notices on their agency’s website of any adverse findings of discrimination made against the agency for at least one year.
In addition, the new law would require an agency to notify the Equal Employment Opportunity Commission (EEOC) regarding whether it has taken disciplinary action against an employee found to have engaged in discrimination or retaliation. The new law would further require that the EEOC refer any federal employees who are found guilty of committing discrimination or retaliation to the U.S. Office of Special Counsel for disciplinary action.
A finding of discrimination against a supervisor does not often result in disciplinary action against the supervisor. Therefore, these new reporting and disclosure requirements would likely motivate agencies to take more disciplinary action against supervisors.
Lastly, the new law would prohibit non-disclosure agreements that prevent a federal employee from disclosing wrongdoing involving whistleblower matters to Congress, an Inspector General, or the U.S. Office of Special Counsel. Federal agencies typically insist on these types of non-disclosure clauses in their settlement agreements with federal employees. However, the new law would certainly end this practice.
Since the Act passed in the House 403-0, there is a strong likelihood that it will pass in the Senate and become law. It was received in the Senate on July 22, and has been referred to the Committee on Homeland Security and Governmental Affairs.
We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
President Barack Obama recently proposed a salary increase for millions of American employees by proposing to expand the scope of overtime rules under the Fair Labor Standards Act (FLSA).
The proposed rule issued by the U.S. Department of Labor would raise the overtime salary threshold–which is currently $23,700–to as much as $50,400. As a result, the salary level for non-exempt employees would double under the new overtime rule if they work more than 40 hours a week. This new overtime rule would present a significant change in overtime requirements for employers and employees.
One of the reasons for the change is that the current overtime rules provide employers significant leeway to classify employees as “managerial” and, therefore, exempt them from time-and-a-half overtime compensation. The President took the action under the FLSA, which was enacted in 1938 and last updated in 2004, through a proposed change in regulations by the U.S. Department of Labor.
This type of regulatory change does not require Congressional action and will likely be in effect in 2016 when the rule is finalized. The public can comment on the proposed rule up until September 4, 2015.
In the past, the FLSA salary threshold did not account for inflation. One of the goals of the proposed rule is to establish procedures for automatically updating salary levels in the future.
The new overtime change will mean that a significant portion of employees will now be eligible for overtime compensation for the first time. For more information on the new proposed rule, view the U.S. Department of Labor’s fact sheet.
We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
Employees are entitled to all of their previously earned wages, even if they are terminated. However, for various reasons employers sometimes attempt to avoid paying the last paycheck to a former employee. The nonpayment of wages can cause significant hardship for an employee and can be a costly mistake for an employer. Fortunately, there are several laws and regulations that govern issues related to the nonpayment of wages.
An employer generally should pay an employee’s paycheck by the next pay period. Some state laws vary on this issue, but failure to make prompt payment can violate a number of wage and overtime laws such as the Fair Labor Standards Act (FLSA). The Virginia Code § 40.1-29 provides that final payments to a terminated employee should be made on or before the employee would have normally been paid had the employee not been terminated. The Virginia Code imposes civil and criminal penalties for nonpayment of wages by an employer. The Virginia Code further prohibits employers from deducting portions of a final payment without the former employee’s consent with the exception of standard taxes and withholdings.
States vary on the issue of whether an employee is entitled to receive accrued vacation or sick leave upon an employee’s departure. Virginia has taken the approach that fringe benefits such as vacation/annual/holiday leave, sick leave or severance pay are not required to be paid out by a former employer under the law. In addition, employers may establish any policy or no policy regarding fringe benefits at the termination of an employee.
If an employee in Virginia is confronted with nonpayment of final wage issues, the employee can contact the Virginia Department of Labor and Industry. The Virginia Department of Labor and Industry may assist an employee in obtaining payment of final wages after the employee files a complaint, but it does not handle claims for wages over the amount of $15,000. If the payment of lost wages also involves unpaid overtime, the United States Department of Labor, Wage and Hour Division may be contacted and an investigation may be initiated for FLSA overtime violations by the former employer. Additionally, the failure to pay both wages and overtime can be pursued in court.
We represent employees in federal employment matters nationwide, and private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.
The purpose of the Fairfax County Office of Human Rights and Equity Programs, Human Rights Division (HRD) is to receive and investigate complaints by individuals who have been discriminated against on the basis of race, color, sex, religion, national origin, marital status, age, familial status or disability involving employment, housing, public accommodations, private education, and credit.
With regard to employment, under the Fairfax County Human Rights Ordinance located in Chapter 11 of the County Code, the HRD evaluates complaints by employees who believe they have been subjected to discrimination and harassment by an employer in Fairfax County.
Filing a Complaint
Generally, an employee must file a complaint with the HRD in person or by telephone within 365 days of the alleged discrimination. Complaints can also generally be filed at the Equal Employment Opportunity Commission (EEOC). The HRD and EEOC often cooperate with each other and in some cases a discrimination complaint will be considered cross-filed with both agencies. Some of the reasons for filing a discrimination complaint include:
- Denial of a job due to race, color, age, or disability
- Gender-based salary discrimination
- Termination due to pregnancy
- Termination after contesting an act of discrimination
Resolving Complaints at HRD
The HRD provides alternative dispute resolution methods such as mediation, settlement, or conciliation, which allow the employee and employer to avoid future litigation. There can be substantial benefits and cost savings to both an employee and employer in resolving a matter without litigation.
Steps in an HRD Investigation
The HRD takes a number of steps in order to investigate an employee’s complaint. These steps include the following:
- submitting document requests to an employer relating to the alleged discrimination;
- conducting witness interviews regarding the alleged discrimination; and
- taking site visits to the employer regarding the alleged discrimination.
Following an investigation, HRD will determine whether there is probable cause to find discrimination. A finding of no probable cause can be appealed to the Fairfax County Human Rights Commission. The Commission can reverse the HRD determination, find probable cause, and grant a public hearing. If the Commission does not find probable cause, the employee can utilize the EEOC or court process to advance his or her dispute.
Public Hearing
If a public hearing is granted for an alleged case of discrimination, the case proceeds much like in civil court where information can be sought by the employee and witnesses can be examined. A pre-hearing is conducted to work out evidentiary and witness issues, after which a trial-type hearing is conducted. Following the public hearing, the Commission will determine whether a violation has occurred.
If the Commission finds a violation, it refers the matter to the Fairfax County Board of Supervisors for review and evaluation to determine whether the County Attorney should file a claim against an employer for violating the Fairfax County Ordinances on discrimination. If the claim is dismissed, employees can proceed with the court process.
We represent private and public sector employees in Fairfax County employment matters. If you need assistance with an employment law 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.
