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. They write biweekly on RestonNow.

The rules governing retirement benefits for divorced federal employees and their former spouses are detailed and complex. The Office of Personnel Management (OPM) is the federal agency that processes court orders, which properly articulate awards of federal retirement-related benefits to the former spouses of federal employees. Therefore, federal employees and their spouses should consider the following general advice if they are facing a divorce.

1. Be proactive. Federal employees and their spouses should be aware of the special rules governing federal retirement benefits while negotiating the terms of their divorce. We recommend utilizing a family law attorney who is familiar with these specialized regulations and consulting with a federal retirement attorney who can advise on these complex regulations. Far too often, OPM will deny court orders due to failure to meet the regulatory requirements. In such case, the parties will most likely need to seek an amendment to their court order in family court and submit the amended court order to OPM for processing.

2. Cover your bases. Federal employees have a variety of different retirement benefits, many of which can be shared and/or assigned to former spouses after divorce by court order. The family law attorney should be aware of the types of benefits available, including:  a monthly marital share apportionment (i.e., a portion of the federal retiree’s annuity); a survivor annuity benefit; a portion of the Thrift Savings Plan (TSP); and coverage under the Federal Employees Health Benefit (FEHB) and the Federal Employees Group Life Insurance (FEGLI) benefits plans. The parties to a divorce can decide the fairest division of these potential assets by familiarizing themselves with each of these types of federal benefits.

3. Pre-retirement check. We recommend that federal employees meet with a federal agency benefits specialist well in advance of their desired retirement date to discuss their retirement. The federal agency benefits specialist should be able to provide guidance and instructions on how to properly complete retirement paperwork and provide a retirement benefits estimate for the federal employee.

In addition, if the federal employee and his/her former spouse wish to create a survivor annuity benefit, this should be done before the federal employee’s date of retirement. It is incredibly difficult, and often times prohibited, to make modifications post-retirement to a survivor annuity benefit. Therefore, we recommend that all potential issues with survivor annuity benefits be confirmed and corrected in advance of the official retirement date.

Given the unique rules that govern federal retirement benefits, it is highly recommended that federal employees utilize an attorney who is familiar with the proper division of federal retirement benefits in court orders.

Our law firm represents and advises federal employees in federal retirement and other 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. They write biweekly on RestonNow.

How to Prevent Pregnancy Discrimination

Pregnancy discrimination 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.

Don’t Discriminate Based on Pregnancy: 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).

Example: Jennifer 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 Jennifer’s pregnancy will affect her ability to work. Jennifer 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.

Provide Equal Treatment to Pregnant Employees: If an employee becomes pregnant or is unable to perform her job due to issues during and after her pregnancy, the employer must treat the employee the same way it treats temporarily disabled employees. 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. They write biweekly on RestonNow.

There are several important issues federal employees should consider when deciding whether to pursue an Equal Employment Opportunity (EEO) complaint against a federal agency or supervisor.

Potential EEO claims. Federal employee EEO complaints can involve a range of discriminatory conduct by federal agencies, including discrimination on the basis of age, disability, race, religion, sex, pregnancy, genetic information, and national origin. In addition, EEO complaints can also involve hostile work environment, sexual harassment and retaliation.

Example EEO complaints. Some typical EEO claims brought by federal employees are demonstrated in the following five hypothetical scenarios:

• Example A: Federal employee is sexually harassed at work by her supervisor. When the federal employee refuses her supervisor’s overtures, she then receives a suspension from the same supervisor. The federal employee brings a claim for sexual harassment.
• Example B: Federal employee has previously filed an EEO complaint against his supervisor. A year later, the federal employee discovers that his promotion was denied by the supervisor because the supervisor was upset that the federal employee had filed an EEO complaint. The federal employee brings a claim for retaliation.
• Example C: Federal employee takes sick leave related to treatment for cancer. Upon the employee’s return, his supervisor gives the employee a bad performance evaluation for taking too much time off. The federal employee claims disability discrimination.
• Example D: Federal employee takes sick leave related to a recent car accident and requires a lot of time out of the office for physical therapy. The federal employee is also unable to perform some of her duties as she recovers, including the lifting of boxes for a limited period of time. The federal employee asks her supervisor for modifications to her duties (a reasonable accommodation), but the supervisor refuses to modify the employee’s schedule. The federal employee claims disability discrimination for her agency’s failure to accommodate her serious medical condition.
• Example E: 60 year-old federal employee is competing for a promotion to a GS-15 position. Federal employee competes against two other employees, under the age of 40, for the same position. The 60 year-old federal employee is not selected for the position. He later discovers that the selecting official expressed concerns that may have impacted his decision, namely that the 60 year-old applicant might retire sooner than the other two younger applicants. The 60 year-old federal employee claims age discrimination.

EEO complaint deadline. Typically, a federal employee only has 45 days from the date of discrimination in which to contact an EEO counselor at the federal agency to initiate the EEO complaint process. If a complaint is not timely initiated, the federal employee may be time-barred from filing the EEO complaint. 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. They write biweekly on RestonNow.

There are several important issues that many executive employees and employers must deal with when negotiating and drafting executive employment agreements. The following checklist contains several key issues and provisions that are instrumental to effective executive employment agreements:

Noncompetition and Restrictive Covenants. Many executive employment agreements include employer restraints or restrictive covenants, including covenants not to compete with the employer and non-solicitation of employer customers and employees, during and for a period of time after the contract term. Most state laws regulate noncompetition agreements and restrictive covenants and base enforceability on different standards and definitions of reasonableness.

Compensation. The executive employment agreement should detail the executive’s salary, commissions, bonuses, incentive compensation, stock options, deferred compensation, and any other compensation. It’s particularly important that both parties check with their tax and financial advisors regarding Internal Revenue Code §409A provisions, if applicable, as there are very specific rules with regard to deferred compensation for key employees of public companies.

Benefits. Most employers detail bonus, pension, profit-sharing, stock option and severance benefits in separate benefit plan documents. If such benefit plans are documented, but not detailed in the executive employment agreement, the benefit plan documents should be included in the agreement by reference to avoid potential problems that could arise if the employer benefit plans are later amended.

Employee handbooks typically cover leave, health, disability and life insurance benefit details unless the executive receives additional or different benefits that should be detailed in the employment agreement. Travel and expense reimbursement details may also be detailed in the employment agreement.

Termination. Termination clauses should be very carefully detailed in executive employment agreements. Consider all of the potential problems that could arise in the employment relationship, including potential disability, death, termination with or without cause (as defined by the agreement, including whether severance could be offered in either case), employer bankruptcy, and employee termination for good reason (as defined by the agreement).

Contract Term. Executive employment agreements typically specify the length of the agreement’s term. The employment agreement’s duration can generally range from one to up to three or more years. The agreement should always specify whether the contract term will automatically renew unless the applicable governing state law implies automatic renewal absent a specific term. 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. They write biweekly on RestonNow.

On July 7, 2014, President Obama signed into law the Intelligence Authorization Act for Fiscal Year 2014, which made some changes to the existing security clearance process. These changes were not widely reported in the media and many provisions still have not been fully implemented.

The new law puts into effect two key changes for security clearance holders: (1) continuous monitoring and (2) annual reporting requirements. Title V of the new law requires the Director of National Intelligence (DNI) to:

1. Ensure that the background of each employee, officer, or contractor of the intelligence community is monitored continuously to determine his or her eligibility for access to classified information; and
2. Develop procedures to require sharing of potentially derogatory security information concerning an employee, officer, or contractor of the intelligence community that may impact the eligibility of such individuals for a security clearance.

While the law does not immediately implement these two changes (or explain how the new continuous monitoring system will work), it essentially tasks the DNI with designing a new system to monitor cleared federal employees and contractors so that security concerns get identified as soon as possible.

In the past, clearance holders often had additional time, between their 5- or 10-year renewals before negative information (e.g., an arrest, civil issue, or other security concern) was identified. This has caused a number of concerns such as in the Navy Yard shooting. Even though cleared employees often had a duty to report these issues as they arose, the new provision is designed to enact a process whereby such issues will be identified earlier. The purpose behind the new continuous monitoring system is explained more in this article on the PBS Newshour website.

The law also requires that the DNI develop new procedures for sharing security concerns about a clearance holder between different government agencies responsible for clearance decisions. Another important change in Title VI of the new law includes a number of new whistleblower protections for CIA, DIA, NGA, NSA, DNI, and NRO employees that prohibit retaliation by these agencies for lawful whistleblower disclosures. While the new law leaves a number of issues to be defined, it takes the first step toward tightening the process for clearance holders in maintaining their security clearances.

Our law firm represents and advises federal employees in security clearance matters. If you need legal assistance regarding 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. They write biweekly on RestonNow.

On Aug. 8, the Office of Personnel Management (OPM) released its final regulations implementing a new phased retirement program that allows full-time federal employees to work part time and collect retirement benefits while employed. This article summarizes some of the key points about the new program.

The phased retirement program is notable because of its new part-time retirement/part-time employment option for federal employees. OPM has indicated that federal agencies can begin processing applications for this phased retirement program when the new rule becomes effective on Nov. 6, 2014. Not surprisingly, many federal employees have been interested in the program since Congress approved this new retirement option in 2012.

The new OPM rules were the result of an Act of Congress two years ago that permits federal employees to work part time (50 percent schedule) while they draw a portion of their retirement annuity (50 percent of their annuity) once they meet the eligibility requirements for retirement. Federal employees who elect the program will be required to spend at least 20 percent of their time in a mentoring status. Essentially, the objective is for federal employees to help train their replacements as they phase out of the federal workforce.

Those who are eligible for the program include federal employees in both the Civil Service Retirement System (CSRS) and Federal Employees Retirement System (FERS) programs. CSRS employees will become eligible for the new program once they reach 1) 55 years of age and 30 years of service or 2) 60 years of age and 20 years of service. FERS employees are eligible for the program once they reach 1) 30 years of service and their minimum retirement age (MRA) or 2) 20 years of service and 60 years of age.

OPM states in the new rule that the program “is not a one-size-fits-all program,” but that both an agency and an employee must agree that the phased retirement option is a good fit for both.  OPM has indicated that the various federal agencies will have the flexibility to work out many other details, including the length of the phased retirement and the number of employees who will be eligible. The phased retirement program was enacted with the general goal of preserving institutional knowledge within the federal agencies while simultaneously saving the federal government money.

For a full synopsis of OPM’s new phased retirement program, the final rule (79 FR 46607) can be viewed here.  The new OPM retirement rules can be very complex. We recommend that federal employees obtain legal representation and advice when considering this new phased retirement program, especially during the early stages of the program.

Our law firm represents and advises federal employees and retirees in all federal retirement matters. If you need legal advice or representation regarding the new phased retirement program or any other federal retirement 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.

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. They write biweekly on RestonNow.

The Americans with Disabilities Act (ADA), and its amendments, requires employers to engage in a good-faith interactive process with employees who request a reasonable accommodation for their medical issues and disabilities. The interactive process is a collaborative effort by which the employer and employee informally discuss and identify the precise medical limitations of the employee and accommodations that the employer could potentially make to help the employee overcome these limitations.

The process may vary depending on how difficult or obvious it is to determine the accommodation. Some state disability laws impose similar obligations to the federal ADA requirements.

An employer’s obligation to engage with an employee in the interactive process arises when the employer becomes aware that the employee has a covered disability or medical issue under the ADA and requests an accommodation. The employee has a duty to inform the employer that he or she has a medical condition and request an accommodation for the job-related limitations imposed by his or her medical condition. 

The employer should engage in the following interactive-process steps with the employee:

1. Analyze the particular job at issue and determine the purpose and essential functions of the job.
2. Consult with the employee to ascertain the precise job-related limitations imposed by the employee’s medical condition and how those limitations could be overcome with a reasonable accommodation.
3. Consult with the employee to identify potential accommodations and assess the effectiveness each accommodation would have in enabling the employee to perform the essential functions of his or her job.
4.  Consider the preference of the employee, then select and implement the accommodation that is most appropriate for both the employee and employer.

A more detailed explanation of the interactive process is in the federal regulations (29 CFR §1630), but it is important to note that the interactive process requires the employer to assess both the job at issue, including the job’s actual duties and purpose, and the specific abilities and limitations of the employee. If the employer and employee have difficulties reaching a consensus on the potential accommodations, the Equal Employment Opportunity Commission (EEOC) advises parties to seek technical assistance from the EEOC, state or local rehabilitation agencies, or private organizations.

Both the employee and employer are responsible for advancing the interactive process through active participation. Notably, however, the employer is often in a better position to move the process along once the employee raises his or her need for a reasonable accommodation.

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. They write biweekly on RestonNow.

Ending an employment relationship can be difficult for both the employee and the employer. Here are some simple tips for employees and employers to consider that can help reduce the risk of the departure causing long-term career damage for the employee or resulting in the employee initiating a claim or lawsuit against a former employer. If employers and employees resolve the termination of the employment relationship amicably, it is less likely that a dispute will arise. 

Tips for a departing employee:

1. Be careful about downloading information from an employer’s computer or making backups of company e-mails onto CDs or thumb drives without permission. There have been a number of recent cases where doing so without an employer’s permission can subject an employee to personal civil liability and/or cause the employee to jeopardize his or her security clearance. Get permission from the employer first if company policy is unclear.

2. Be careful about taking or making copies of documents from work when you leave. You may consider them your own work product, but an employer may consider them trade secrets; therefore, it could subject you to civil liability. Again, check with the employer first before taking or copying documents if company policy is unclear.

3. Don’t burn your bridges. Generally, an employee’s most memorable times of employment are his or her first and last weeks with an employer. Likewise, these are the times that an employer remembers most for purposes of future inquiries and references regarding the employee. It is far more prudent to be pleasant and professional when you leave an employer, even if you are terminated and/or the employment relationship has deteriorated. If an employee expresses anger or resentment to an employer, the contention can further cause significant difficulties when the employee attempts to use the former employer as a reference or later attempts to obtain or renew a security clearance. To the extent possible, employees should always leave on professional terms.

4. Do not sign a separation or severance agreement offered by an employer without first speaking with an attorney. Usually, the agreement includes a standard release and possibly non-compete and/or non-solicitation terms. An employee should understand what he or she is signing before agreeing to a release and/or any restrictive covenants. Keep in mind that severance terms can often be negotiated despite an employer’s initial suggestion that the employee “take it or leave it.” Most, if not all, severance terms are usually negotiable.

Tips for an employer dealing with a departing employee:

1. When terminating an employee, do so with dignity and kindness. Not only is this the right way to handle a termination, but it reduces the risk that the employee will file a future employment claim against the employer. Many claims are filed by employees because of the manner in which an employee was treated by the employer during termination.  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. They write biweekly on RestonNow.

Legal inquiries regarding the use of voice recorders in the workplace have increased in recent years with the use of smartphones. Many software applications (apps) designed for smartphones make the process of recording others easier than ever and unknown to the party being recorded.

However, there are serious legal issues involved in the recording of others that should be considered before doing so. Generally, recording of conversations in the workplace is not recommended given the number of legal and workplace issues that can develop for an employee as a result.

Laws Governing Recording in the Workplace

Depending on each situation, federal wiretapping laws can apply to the recording of other individuals.  In addition, each state has different laws adding to a complex set of laws that could apply to any given situation. In addition, in the employment context, making a recording can be considered a violation of company policies. In our legal practice, we have also defended private sector and federal employees who were disciplined for their use of recording devices in the workplace.

Recording an individual on a telephone can be extremely problematic because doing so in one jurisdiction might be legal while the other party to the telephone call could be on a cellphone in another state where the law is different.That could make the recording illegal and subject an individual to prosecution.

Recording someone during an in-person work meeting is also problematic. Virginia law (Virginia Code § 19.2-62) makes it a crime to intercept wire, oral, or electronic communications, unless one party to the conversation consents. Even though this means that an employee, in theory, could record a conversation during an in-person meeting without obtaining all parties’ consent and not break Virginia’s criminal laws, doing so is not recommended and rarely worth the risk.  Before attempting this, in any event, it is important to discuss the specific facts of one’s individual situation with an attorney to avoid any criminal complications later.

General Advice on Recording Others in the Workplace

While an employee may in some situations be able to record conversations with others in the workplace without breaking criminal laws, it does not mean that doing so is a good idea because there are several risks.  For example, an employee could be terminated if he or she is caught recording others (e.g. a supervisor during a performance meeting) in the workplace based on a company policy against recording others or under a general misconduct policy.

Furthermore, the value of having a recording may be significantly diminished or barred from a later court proceeding if done without the consent of all parties. In addition, employees and employers may find themselves subject to potential civil liability under privacy laws for recording others without their permission.

If an employee or employer has recorded others in the workplace, it is important to discuss these issues with an attorney as soon as possible because the issues could get complicated and involve liability for either party. Our firm represents federal employees and private, state, and county employees and employers in Virginia, the District of Columbia, and Maryland regarding employment matters.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  Please also visit 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. They write biweekly on RestonNow.

In the private sector, non-compete agreements between employers and employees are becoming more prevalent.

Non-compete agreements generally involve an employer’s decision to impose certain restraints or restrictive covenants on an employee during, and for a period of time after, the employment relationship. Examples of such restraints or restrictive covenants include post-employment covenants not to compete with the employer’s business and non-solicitation of the employer’s customers and employees.

Although federal, state, county, or municipal laws may regulate non-compete agreements differently, under Virginia case law a non-compete agreement must be reasonable to be enforceable. Only a court may decide, as a matter of law, whether a non-compete agreement is enforceable. However, the employer bears the burden of proving that its non-compete agreement is enforceable under Virginia law. A reasonable non-compete agreement generally consists of three components:

• It should be no more restrictive than necessary to protect the employer’s legitimate business interests;
• It should not unduly burden the employee’s legitimate efforts to earn a livelihood; and
• It should be consistent with sound public policy.

The Virginia courts typically look for the following factors when assessing whether a non-compete agreement is reasonable:

• The duration of the restrictive covenant;
• The geographic scope of the restrictive covenant; and
• The scope and the extent of the restricted activity.

Whether the duration, geographic scope, and scope and extent of the restraint imposed by the employer are reasonable depends upon the specific facts of each case. Thus, every non-compete agreement should be analyzed separately and by balancing the non-compete agreement’s unique provisions with the parties’ specific circumstances. Generally, however, non-compete agreements that are more narrowly tailored in geographic scope and duration are more likely to be considered reasonable.

Likewise, overly broad and ambiguous non-compete agreements, or agreements involving employers that do not have a legitimate business interest in the restrained activity, may be unenforceable. Virginia courts will generally not modify non-compete agreements that are ambiguous. Rather, the courts usually construe ambiguous clauses in non-compete agreements against the employer.

Employers enforcing non-compete agreements can typically seek preliminary and permanent injunctions; lost profits damages; damages for lost good will; liquidated damages (if provided in the agreement); and attorneys’ fees. Since the consequences of signing non-compete agreements can be extremely costly and problematic for many employees, we recommend that employees obtain the advice of an attorney, preferably before the employee signs the non-compete agreement.

Virginia courts also recognize non-disclosure agreements (also referred to as NDA or confidentiality agreements) and non-solicitation agreements. The courts generally analyze such agreements in the same way that they analyze non-compete agreements.

Our firm represents federal employees and private, state, and county employees and employers in Virginia, the District of Columbia, Maryland, Massachusetts, Maine, Michigan and New York regarding non-compete agreements, non-disclosure agreements and non-solicitation agreements as well as various other employment matters.

We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please also visit 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. They write biweekly on RestonNow.

Many current and former employees often ask whether they have the right to obtain a copy of their personnel file or have the ability to review and inspect it at the very least. It is important to understand that each state has its own laws and regulations concerning personnel files of private sector employees. In addition, public sector (federal, state and county) employees are governed by different state and federal laws.

Access to Personnel Files Varies

Private sector employees are generally not entitled to a copy of their personnel file. Virginia, the District of Columbia, and Maryland currently do not have statutes that require private sector employers to provide a copy of or even the ability to review employee personnel files. Some states, such as California and Connecticut, have passed laws requiring that employees have access to their personnel files. The national trend seems to be moving in favor of passing laws that require employers to provide current and former employees access to their personnel files.

Unionized private sector employees may have additional rights to review or obtain a copy of their personnel files, depending on collective bargaining agreements negotiated between a union and an employer. Federal employees generally have the right to obtain a copy of their personnel files through the Privacy Act of 1974, 5 U.S.C. § 552a. Virginia public sector (State or County) employees have the right to review their personnel files under Va. Code 2.2-3705.1 and Va. Code 2.2-3705.5.

In addition, if a personnel matter goes to court, an employee will typically be able to obtain a copy of his or her personnel file through litigation procedures.

Advice to Employees and Employers

If employees do not have a statutory or other right to obtain a copy of their personnel file, we advise that they still request the ability to review it. Even though employers may not have a formal policy on personnel files, human resources often will grant an employee’s request to review his or her personnel file.

We advise employers to consider allowing employees, under certain conditions, the ability to review their personnel file even if it is not required. This often has a positive effect on workplace morale and helps to limit suspicion in the workplace. It also gives the employer the ability to clearly document that an employee was put on notice where disciplinary or performance actions have been taken. An employer should certainly have a policy in place that is consistently applied to all employees.

Our firm represents federal employees and private, state, and county employees and employers in Virginia, the District of Columbia, and Maryland regarding employment matters and requests for information from personnel files.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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. They write biweekly on RestonNow.

Federal employees filing for disability retirement are either covered under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS). One of the key components of a federal employee’s successful disability retirement application is a well-written physician’s statement.

When evaluating a federal employee’s disability retirement application, the Office of Personnel Management (OPM) is primarily seeking medical evidence that supports the federal employee’s information provided in his or her application. In order for OPM to support a federal employee’s claim that he or she is disabled and unable to provide useful and efficient service in his or her current position, the federal employee should provide a well-written and detailed physician’s statement when submitting the application. OPM most likely will deny a disability retirement application without such a statement.

OPM’s form SF-3112C and instructions do not actually provide much detail as to what specifically should be included in the physician’s statement. However, based on our experience, it is crucial that the physician provide a great deal of detailed medical documentation in the statement.

The best type of physician’s statement further addresses the federal employee’s specific medical conditions and symptoms, and how they prevent the federal employee from performing his or her job duties as described in the federal employee’s position description.

The federal employee should provide the physician with a copy or summary of his or her official and actual job duties. Keep in mind that OPM is not necessarily focused on whether the federal employee is fully disabled from completing a particular type of work. OPM is more interested in detailed medical evidence establishing how the federal employee is disabled in such a way that prevents the employee from performing his or her current job duties.

If a federal employee retains our firm to assist in his or her disability retirement application, we usually coordinate with the employee’s physician regarding the statement, assist the physician with information that might be important to include in the statement, and help to answer the physician’s questions about the disability retirement process.

In addition, we often assist the physician with the actual drafting of the physician statement since we recognize that physicians have very busy schedules. Also, it is sometimes helpful to offer to pay for the physician’s time in preparing the statement, if appropriate.  Typically, most physicians want to help their patients in the disability retirement application process and are usually the first to recommend disability retirement to the federal employee.

When considering OPM disability retirement, it is important to obtain the advice and representation of legal counsel. Our firm represents federal employees in the disability retirement process before various federal agencies and OPM. Please contact us at www.retirementlaw.com, www.berrylegal.com, or by telephone at (703) 668-0070, for a consultation to discuss your individual disability retirement matter.

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. They write biweekly on RestonNow.

Fairfax County has a grievance procedure for County employees, such as teachers and police officers, to attempt to improve employee-management relations and resolve employment matters contained in Chapter 17 of the County of Fairfax Personnel Regulations.

What Can Be Grieved?

Items that can generally be grieved include, but are not limited to, the following:

• Terminations
• Demotions
• Suspensions
• Application of Fairfax County policies
• Retaliation
• Discrimination
• Whistleblower

Generally, County employees cannot file a grievance involving:

• Wage or salary
• Position classifications
• Employee benefits
• Promotion decisions
• Oral reprimands

Five Steps of the Grievance Process

Step 1 of the grievance process is for the County employee to discuss the problem with his or her immediate supervisor in a meeting within 20 business days of the date the County employee reasonably had knowledge about the problem that gave rise to the complaint.

If the problem is not resolved after the Step 1 meeting with the immediate supervisor, the County employee may file a Step 2 written grievance on “Complaint Form — Second Step” with the division supervisor.  The division supervisor shall meet with the County employee within five business days of the receipt of the Complaint Form. After the meeting, a reply from the division supervisor shall be made within five business days.

If the problem is not resolved after Step 2, the County employee may file a final Step 3 written grievance on “Complaint Form — Third Step” with the department head.  The department head shall meet with the County employee within five business days of the receipt of the Complaint Form. After the meeting, a reply from the department head shall be made within five business days.

If the grievance cannot be resolved by means of Steps 1 through 3 of the process, then the County employee may request a determination of the grievability of the complaint within 10 business days following the receipt of the Step 3 reply from the department head.  Step 4 involves a determination as to whether the grievance can go to a hearing. This decision is made by the County Executive and can be appealed to the Fairfax County Circuit Court.

If the County Executive or the Court finds that the grievance is grievable, the County employee may then proceed to Step 5 and file a request for a hearing with the Fairfax County Civil Service Commission.  The grievance appeals are reviewed by a three-member panel, and if the Commission accepts the grievance then a hearing is scheduled.

The Grievance Hearing Process

Hearings on grievances before the Commission are similar to civil litigation.  Attorneys give opening statements, examine and cross-examine witnesses, introduce evidence, and provide closing statements.

Following the hearing, which can be binding or non-binding, the Commission can, depending on the issues, take such actions as reinstating a terminated employee, reducing suspensions, and providing back pay as appropriate.

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If a Fairfax County employee is considering filing an employment grievance, it is important to obtain legal advice and legal representation beforehand. Our law firm represents Fairfax County employees, such as teachers, police officers, and other county personnel in their employment grievances filed with the County.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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. They write weekly on Reston Now.

Legal issues involving whether an individual was correctly hired as an independent contractor or employee often arise for many businesses and individuals. The problem with an independent contractor’s or employee’s status is often not recognized until the individual separates or is released from his or her position and subsequently contends that the business either owes the individual compensation (e.g., unpaid wages, overtime, etc.) or should have paid and deducted taxes because the individual was really an employee rather than an independent contractor.

Independent contractors are self-employed and pay their own taxes. Businesses do not need to set aside payroll taxes for or provide minimum wage or overtime to independent contractors.

Individuals asserting their employee status often bring wage and tax claims to their local wage and hour office, the Department of Labor (DOL), the Internal Revenue Service (IRS), and other agencies in an attempt to resolve a dispute with their employer. When the DOL, IRS, or state wage and hour office reviews these types of disputes, the agency typically applies its own test to determine whether the business should have classified the individual as an employee.  In our experience, we have found that when the issue is unclear or debatable, government agencies tend to find that the individual was an employee.

Although each agency has its own separate test and each test varies, some of the major issues that the DOL, IRS, and other wage/hour offices consider in evaluating independent contractor and employee status include the following:

• The extent to which an individual’s services are “an integral part” of the employer’s business. For example, an agency will look at whether the individual supervises any company employees or provides primary services.
• The length of time that the individual has worked for the same business. If an individual has performed work for an employer for a long period of time, the individual is more likely to be considered an employee.
• Whether the individual uses his or her own equipment or the employer’s equipment. The agency will determine whether the individual has his or her own office offsite or whether the individual performs the work at the employer’s office. If the business provides the office space or tools to perform the work, the business is more likely to be considered an employer of the individual.
• Whether the individual is reimbursed for materials or supplies in performing the work.  If an employer reimburses an individual for expenses related to work materials and supplies, the individual is more likely to be considered an employee.
• Whether the individual decides on the hours he/she works or the business sets the individual’s hours. This is an important consideration. If the business sets the hours of work for an individual, then he or she is more likely to be considered an employee.
• Whether the individual invests in insurance, advertising, business cards or bonding.  It can help to establish that the individual is an independent contractor if the individual maintains these types of expenses on his or her own.
• Whether the individual performs work for other businesses.  If the individual works for more than one business, such information can be used to argue that the individual is an independent contractor.
• The level of skill needed to perform the work for the business.  Government agencies usually find that if less skill is needed to perform the work (e.g., general clerical), then it is less likely that the individual is an independent contractor.
• Whether the individual or the business provides training.  If the individual provides his or her own training, it would be a factor in showing that the individual is likely an independent contractor and not an employee.  However, if the business pays for the individual’s training, then the individual would likely be considered an employee.
• Whether the individual was paid a flat fee or hourly for work.  While not determinative, if an individual is paid hourly then it is more likely that the individual is an employee.

When an individual is incorrectly classified, the risks are usually high and the outcome can be significant if the business and the individual contest or dispute the individual’s independent contractor or employee status.  Therefore, it is important for businesses and individuals to correctly classify whether an individual is an employee or independent contractor before work begins.

If an employer ultimately has to provide back pay, damages, pay back taxes and/or pay penalties, the costs to the employer can be significant. Conversely, if an individual should have been classified as an employee but did not understand the difference at the beginning of his or her employment, the costs to the individual in paying his or her own taxes can be significant as well.

We recommend that businesses and individuals obtain legal advice early on to avoid wage and hour issues that may arise later involving disputes over whether the individual was an employee or independent contractor.

We have represented both businesses and individuals regarding disputes over an individual’s employee or contractor status. If you are interested in obtaining legal advice, please contact our office at www.berrylegal.com or (703) 668-0070 to schedule a consultation.  Please also visit us on Facebook.

Please be advised that this information is strictly for informational purposes only and does not constitute legal advice.

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. They write weekly on Reston Now. 

When a security clearance applicant or re-applicant completes an e-QIP or SF-86 security clearance form, an assigned security clearance investigator will usually contact him or her to schedule a face-to-face interview.  Since the interview is one of the most important steps in the security clearance process, we strongly recommend that applicants prepare for the interview beforehand as much as possible.

Background Check

The security clearance investigator will typically review and confirm most of the information that an individual has provided prior to the interview. For example, the investigator may speak with former supervisors, neighbors, co-workers, family members, as well as social references to get a full background of the individual seeking the clearance. In addition, the investigator will most likely check with law enforcement agencies in areas where an individual has resided and thoroughly review other relevant background information on the individual.  When the review of the information is complete, the investigator will generally contact the individual for an interview.

Preparation for the Interview

Since the investigator has generally reviewed the individual’s submission prior to the interview, he or she will have already identified any significant areas of concern. In our experience, the individual being interviewed will have some awareness about potential areas of concern that might come up during the interview and, thus, will generally have time to prepare how he or she should address them.

For instance, if the individual was involved in a recent alcohol-related driving offense, he or she should be prepared to fully explain the incident to the investigator, discuss any alcohol counseling sought and what steps have been taken to avoid the same situation in the future, and provide other relevant details.

If an individual’s case involves known security violations or other concerns then it is important to obtain any relevant documents prior to the interview, especially if they can be helpful in explaining or mitigating the potential security concerns at issue.  We strongly advise discussing and reviewing such documents with an attorney in advance to provide the best opportunity to help increase the chances for a successful interview.  Read More