This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
The Commonwealth of Virginia did not have its own overtime laws until the recent passage of the Virginia Overtime Wage Act (VOWA), in Virginia House Bill 2063, signed on March 30, 2021, by Governor Northam.
Those who were able to argue for lost overtime compensation had to previously rely on federal law, the Fair Labor Standards Act, known as FLSA. While the new VOWA is similar to the FLSA, it increases costs and penalties (both civil and criminal) for Virginia employers that don’t pay required overtime to employees.
Like the FLSA, Virginia’s new overtime law generally requires payment of time and a half at an employee’s regular rate for hours worked in excess of 40 hours in a workweek. But although the law largely tracks federal standards, significant differences are likely to result in new liabilities for Virginia employers and higher damages for overtime violations for employees in Virginia who have not received their overtime pay.
The new Virginia law establishes a new formula for calculations for salaried employees in Virginia, which will yield larger recoveries in overtime cases. VOWA will also yield larger recoveries for misclassified workers. Additionally, while the FLSA has a two-year statute of limitations to bring claims — unless they are willful (intentional), which extends it to three years — VOWA expands this. VOWA extends overtime claims to three years. This will bring greater liability to employers.
Finally, VOWA presumes an employees’ ability to obtain double damages for all overtime violations. The FLSA allows employers to argue they acted in good faith as a defense to such claims. The new VOWA takes this defense away. Under VOWA, all overtime wage violations are subject to double damages (in addition to pre-judgment interest of 8% per year). Finally, VOWA goes further and permits triple damages for employees where an employer had actual knowledge that it failed to pay the overtime wages due and acted in deliberate ignorance or reckless disregard as to whether it was paying all overtime wages owed.
VOWA also includes criminal provisions against employers. Employers can be now found guilty of a Class 1 misdemeanor if the value of the overtime wages earned and not paid is less than $10,000. If the amount unpaid is over $10,000, the employer can be found liable for a Class 6 Felony charge. A felony charge can also apply no matter the amount of wages at issue for a second conviction.
There is a lot to sort out with the new VOWA overtime legislation in Virginia, but employees are going to have much stronger state claims for overtime in the future.
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If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By Kimberly H. Berry, Esq.
With the rise of the COVID-19 pandemic, many federal employees have recently been giving more consideration to their retirement options. One of the more common forms of retirement matters that we handle involves the legal representation of federal employees in the disability retirement process before the Office of Personnel Management (OPM) and in the appeals process.
Federal employees filing for disability retirement with OPM are typically covered by either the Federal Employees Retirement System or the Civil Service Retirement System. There are a number of questions that a federal employee should consider as they contemplate whether to file for federal disability retirement. These considerations include, but are not limited to:
1. How serious are the federal employee’s medical issues (and are they linked to the federal employee’s position description duties)?
When making a disability retirement decision, a federal employee should keep in mind that OPM evaluates an individual’s continued ability to work with their medical condition in the context of the duties described in their position description (PD). If the medical disability is not deemed serious enough, or not fully supported by medical documentation or other evidence, and is not sufficiently linked to their inability to “usefully and efficiently” carry out their PD duties, then OPM may deny the disability retirement application.
2. To qualify, how long is the medical disability realistically expected to last?
OPM requires that a medical disability be expected to last at least one year in duration. When considering whether to file for OPM disability retirement, it is important for a federal employee to evaluate the expected duration of their medical disability. Disabilities with known shorter duration could be problematic in the application process.
3. Can the federal employee survive on a reduced annuity?
If a federal employee is considering filing for OPM disability retirement, it is important to understand that this type of retirement usually provides an individual with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that federal employees obtain a benefits estimate from their human resources representative and consult with a financial advisor about the impact of a potentially reduced annuity prior to filing for disability retirement. It is important to evaluate one’s ability to support themselves on a reduced annuity before filing for OPM disability retirement
4. Are there changes to a federal employee’s position that can be made to allow the federal employee to continue to work?
It is often the case that a federal agency will work with a federal employee to provide them with a reasonable accommodation (i.e. change in hours, duties, telework or other possible accommodations) that can make a federal employee’s current position and medical condition workable. This can alleviate the need for filing for disability retirement. As a part of the OPM disability retirement process, a federal agency is required to certify that it is unable to accommodate a federal employee’s disabling medical condition in their present position. The federal agency must also certify that it has considered them “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassignment.” Usually, this does not present a major hurdle to obtaining OPM disability retirement.
5. Do the federal employee’s medical professionals support the disability retirement application?
This is an important factor when filing for disability retirement. In most cases, physicians will be open with their patients about whether it is a good idea to keep working in their current federal employment position. Typically, most physicians are supportive of such applications.
There are at least two good reasons for a federal employee to discuss their possible filing for OPM disability retirement with their treating medical providers in advance. First, a federal employee’s health should be of primary importance and consideration when determining whether continuing in a particular position hinders or impedes their medical recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the OPM disability retirement application process.
OPM will require a physician’s statement about a federal employee’s medical condition, and the physician’s statement can often make or break the outcome of an OPM disability retirement application. Sometimes, a federal employee can seek an outside medical expert opinion to support their application for disability retirement, but it is very important to also include a longtime treating physician or other medical professional where possible.
When considering whether or not to file for OPM disability retirement, it is important to obtain the advice and representation of legal counsel. The OPM link for disability retirement is located here. You can contact our law firm through www.retirementlaw.com, www.berrylegal.com or by telephone at 703-668-0070 to schedule a consultation to discuss your individual federal employment retirement matter. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Government contractors, federal employees and military personnel holding security clearances have a duty to self-report security issues that happen between investigations.
Not reporting timely security concerns can lead to a loss of one’s security clearance. Unfortunately, there are often uncertainties about self-reporting and when and how it applies to a clearance holder.
The Duty to Self Report
The duty to self-report was best defined by an administrative judge from the Defense Office of Hearings and Appeals (DOHA) in a 2001 case: “[I]t is the responsibility of security clearance holders to report events which negatively affect the status of the security clearance holder or the facility. [A]ny information…Â [which] reflects adversely on the integrity or character of a security clearance holder should be reported to security personnel to avoid compromising situations that make the security clearance holder vulnerable to coercion, exploitation, or duress.”
Examples of What Might be Reported
A reportable security concern is an incident that falls under one of the Adjudicative Guidelines contained in Security Executive Agent Directive 4 (SEAD 4). In most cases, legal counsel should be consulted to determine how to self-report an issue. The following are just a few of the more common examples of security issues that could trigger a duty to self-report:
- An individual uses illegal drugs (including the use of marijuana even in states or countries where legal locally). This can be a very complicated security concern given the intersection of criminal law and clearance law where legal advice will definitely be needed.
- An individual is arrested. The timing and substance of reporting this incident will be important so legal advice will be needed.
- An individual petitions for bankruptcy. Because filing for bankruptcy bears on financial considerations under SEAD 4, the individual should likely report the filing as soon as possible to his or her security officer.
- An individual marries a foreign citizen. Because marrying a foreign citizen can raise foreign influence issues under SEAD 4, it most likely will trigger a duty to self-report.
When Should a Security Concern be Reported?
When an individual who holds a security clearance determines that a security concern requires self-reporting, it is important to do so as soon as possible. The typical procedure for doing so is to notify one’s security officer of the security concern. The security officer may simply take note of the situation, report it or take other action.
The individual almost always feels embarrassed to self-report a security concern. However, not reporting an incident can lead to the loss of an individual’s security clearance. If an individual has questions about what should be reported, he or she should seek legal advice from an attorney experienced in security clearance law as soon as possible. There are risks to self-reporting, so it is important to seek legal counsel prior to doing so where possible.
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If you need of legal representation or advice on the reporting of security clearance issues or any other security clearance matters, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Our law firm has represented both employees and employers in employment investigations. This article discusses some of the issues involved when an employer conducts an investigation in the workplace and also issues that employees should consider.
Employers conduct workplace investigations into employee complaints typically because they may face legal consequences if confronted with allegations that they do not investigate. For example, if an employee alleges sexual harassment, religious discrimination or race discrimination at work and the claims are not investigated, an employer can be more readily held liable should litigation later occur. The same type of investigation is necessary when dealing with claims of whistleblowing and other alleged inappropriate conduct at work.
Of note, Virginia has recently added a number of new pro-employee protection laws that will make workplace investigations more likely.
Typical Steps in a Workplace Investigation
In most employment investigations, it’s common for an employer to hire an outside law firm (or occasionally use internal counsel) to conduct an employment investigation. Other employers will begin the process with human resources personnel conducting the investigation.
Once an investigator is appointed, they will start their investigation. From the employer’s perspective, their ultimate goal is to minimize their liability. While an investigator may find an individual employee at fault, the investigator ultimately wants to find and document that no fault on the part of an employer occurred. They also want to document the fact that they seriously looked into the allegations at issue.
While these vary, the following steps usually take place in an employer investigation:
- The investigator reviews the complaint and plans their investigation.
- The investigator then interviews the complainant or complainants regarding the allegations.
- The investigator interviews the employee or employees with knowledge of the issues in the complaint and allegations.
- The investigator interviews the accused employee or employees.
- The investigator conducts follow-up interviews of any witnesses as needed.
- The investigator reviews any relevant documentation, emails or other evidence involving the complaint.
- The investigator often concludes by issuing a final report with recommendations to an employer.
- The investigator or employer human resources personnel, to varying degrees, informs the complainant and/or employees under investigation of the outcome of the investigation.
Employee Representation
Depending on the employer and circumstances, an employee may have the right to legal representation during the investigative process. We assist complainants during such investigations and also defend employees accused or under investigation in the workplace for alleged misconduct. It is highly recommended that both complainants and those under investigation have legal counsel.
Results of the Workplace Investigation
Once an employer’s investigation is over, the outcome can vary. A report might be prepared, along with recommendations on actions to be potentially taken.
The investigation can result in the termination or other discipline for an accused employee or employees. The investigation can also result in a complainant filing an Equal Employment Opportunity complaint against an employer. Finally, an investigation can also vindicate an accused employee. No matter the outcome, an employer must be careful in avoiding retaliation against a complaining employee, even when their complaint is found to not be sustained. Retaliation is quite common against complainants, and employers can be held liable for retaliation when this occurs.
Each investigation is different, and different employers vary significantly in how they handle workplace investigations. Complainants and other employees should be represented throughout the process.
Conclusion
If an employee needs assistance with an employment investigation or other issue, please contact our office at 703-668-0070, or visit our website to schedule a consultation. Please also visit and like us on Facebook or connect with us on Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
The Commonwealth of Virginia has enacted new legislation, which now allows for public sector unions to bargain for employee rights and their conditions of employment.
On May 1, 2021, Virginia’s new law will take effect. This is a major change. Previously, localities such as counties, cities or towns were not allowed to recognize or negotiate with labor unions or associations representing their public sector employees. This new law will affect all different types of public sector employees, which will vary from locality to locality. Under the new law, the county or city has to authorize labor unions in their jurisdiction for them to exist.
Virginia’s New Labor Union Law
The new law reads as follows:
§ 40.1-57.2. (Effective May 1, 2021) Collective bargaining.
A. No state, county, city, town, or like governmental officer, agent, or governing body is vested with or possesses any authority to recognize any labor union or other employee association as a bargaining agent of any public officers or employees, or to collectively bargain or enter into any collective bargaining contract with any such union or association or its agents with respect to any matter relating to them or their employment or service unless, in the case of a county, city, or town, such authority is provided for or permitted by a local ordinance or by a resolution. Any such ordinance or resolution shall provide for procedures for the certification and decertification of exclusive bargaining representatives, including reasonable public notice and opportunity for labor organizations to intervene in the process for designating an exclusive representative of a bargaining unit. As used in this section, “county, city, or town” includes any local school board, and “public officers or employees” includes employees of a local school board.
What This Means
Collective bargaining had previously existed in a number of Virginia localities, including in the City of Alexandria, until a 1977 Virginia Supreme Court ruling that barred local governments from collective bargaining with their employees. Fairfax and Arlington counties are already studying the effects the unionization will have. Loudoun County is reviewing the new law as well. In addition, in preparation for the new legislation, Alexandria has proposed a public employees collective bargaining ordinance, including police, fire, labor and trades, and general government employees. In general, unions are not available for senior or managerial-level employees.
In sum, the new Virginia law will allow counties, cities and towns the ability to adopt ordinances recognizing labor unions and enter into collective bargaining agreements with them. The new law is not mandatory for local jurisdictions, but it allows them the ability to permit employees to have unions. If such union interest arises, counties, cities or towns must vote to adopt or not adopt an ordinance authorizing them within 120 days of receiving certification from a majority of public employees in an appropriate bargaining unit. The legislation will ultimately affect police officers, teachers, fire and other types of government employees in Virginia.
The legislation shows that the days of Virginia as an anti-union state are numbered, and this is likely the first step in what will be evolving legislation over the coming years broadening the scope of labor unions in this state.
Contact Us
If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
The President is very likely to seek the elimination of all non-compete agreements, except those that are absolutely necessary. A non-compete agreement restricts where and when an employee can work after leaving their current job. Most employees sign a non-compete agreement before they start employment.
Why Change Is Needed
The proposed change is in response to efforts over the past 15 to 20 years where the use of non-compete agreements has gotten out of control and is beginning to cover practically every type of employee. The result has been that some employees, at even the lowest levels of a company, are barred from getting another position, even if they are terminated. It also has caused an inability for lower-wage workers to take better jobs at other employers as their skills develop. If you want to learn more about non-competes, check out this previously published article.
The President, during the campaign, stated that his goal was to:
“Eliminate non-compete clauses and no-poaching agreements that hinder the ability of employees to seek higher wages, better benefits, and working conditions by changing employers. In the American economy, companies compete. Workers should be able to compete, too. But at some point in their careers, 40% of American workers have been subject to non-compete clauses. If workers had the freedom to move to another job, they could expect to earn 5% to 10% more — that’s an additional $2,000 to $4,000 for a worker earning $40,000 each year…”
See more in the President’s Campaign Plan.
Potential Federal Changes to Non-Compete Agreements
It is uncertain whether or not federal legislation instituting a ban on non-compete agreements will pass Congress. There is also the question as to whether or not the President would use an executive order to bar government contractors from using or enforcing non-compete agreements with their employees. Presumably, the President could do so without Congress.
States Start To Limit Non-Compete Agreements
For the moment, most states allow non-compete agreements in some form. This is quickly changing and many states are reconsidering whether or not to permit (or extremely limit) non-compete agreements. For instance, California has maintained a ban on employee non-compete agreements. In addition, other states, such as the District of Columbia, Oklahoma and North Dakota allow them only in narrow circumstances.
In Virginia, non-compete agreements had long been permitted, but the courts here have made them significantly harder to enforce when they deem them unreasonable. Furthermore, Virginia, as of July 2020, enacted a partial ban on non-compete agreements for low[er]-wage employees. Low-wage employees in Virginia are currently defined as those making approximately $62,000 a year or less, so many employees will be affected.
Conclusion
While there are definitely legitimate uses of non-compete agreements, such as to protect companies from the loss of very sensitive business information and/or personnel, some have gone too far with this type of forced agreement in recent years, which has caused the current backlash. There are examples of food service workers or mechanics forced to sign non-compete agreements, forbidding them from working for others.
However, change is coming and long needed. At this point, given the number of states changing their laws, it is only a matter of time before non-compete agreements are only permissible in isolated circumstances. Non-compete agreements remain needed in some types of employment but not in the broad manner that they are being used today.
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If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
We represent many employees in the workplace and individuals in administrative and civil forums. The unthinkable Capitol riot that took place on January 6, 2021, will lead to many serious consequences for the individuals who took part. While the full extent of what happened is still being investigated, there will be many consequences for those identified as being involved in the illegal riot in the Capitol.
These may include, but are not limited to the following:
1. Loss of Employment
Whether or not the individual involved is convicted, charged or just identified as being involved in the illegal activities in the Capitol on January 6, 2021, they can be fired from their employment. Private and public sector employees can be easily fired for their participation in the Capitol riots. There is no First Amendment protection for their actions.
2. Loss of Security Clearance
Aside from the issue of termination from employment, an individual that was involved and identified as being part of the Capitol riot on January 6, 2021, almost certainly will face the potential loss of their security clearance or a future inability to hold one. Whether the issue is criminal or just misconduct, individuals that hold or plan to hold a security clearance will likely have significant issues.
3. Criminal Charges
A number of the Capitol rioters have already been charged criminally for their actions on January 6, 2021. There is reason to suspect this list will grow significantly in the weeks to come as the FBI continues their work.
Depending on whether the individual is charged with (1) knowingly entering or remaining in a restricted building without law authority; (2) theft; (3) vandalism; (4) disorderly conduct; (5) violence (the murder of U.S. Capitol Police Officer Brian D. Sicknick) (or assault on a federal law enforcement officer or a member of Congress); or (6) seditious conspiracy, there are major criminal penalties that await many of the rioters.
This is just a sample of the potential criminal charges that could be filed by prosecutors against Capitol rioters.
4. Placement on the No Fly List
Another consequence that individuals participating in the Capitol riot likely did not consider is that some appear to now being placed on the “No Fly List.” The No Fly List is a list created and maintained by the United States Terrorist Screening Center (TSC) of individuals who are prohibited from boarding commercial aircraft for travel within, into or out of the United States.
Already it looks as if some individuals have had difficulties returning home from Washington, D.C. after their participation in the Capitol riot. It can be extremely difficult to ever be taken off this list after being placed on it.
5. Lawsuits
For those Capitol rioters who engaged in violence or other actions that hurt others, they are likely to face civil lawsuits when they are identified. Insurers will be unlikely to defend them so rioters will face significant legal and liability costs. Others who did not participate in violence towards others but were present may also be called as witnesses and be dragged into multi-year litigation.
Conclusion
This is just an interim list of consequences for Capitol rioters as there are a number of other potential consequences they may face in the days and months to come as a result of their actions.
The Capitol riot was a horrific event that caused at least two police officers to tragically lose their lives, more than 50 other police officers to be injured, in addition to a number of rioters who lost their own lives. Those who participated in the Capitol riot are going to face a number of legal consequences as a result of their actions.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
We represent many federal employees in the workplace, including defending federal employees against proposed disciplinary actions. Despite the common belief that it’s hard to discipline or remove a federal employee, that is simply not the case. Federal employees quite often face disciplinary and adverse actions.
The following are some general tips regarding how to avoid these potential problems. There are too many to list here, but the following are some good ones to consider.
Get Along With Supervisors
Not getting along with supervisors is the leading cause of disciplinary actions for federal employees. When serious disagreements arise between a supervisor and his or her subordinate, it degrades the employment relationship, which often leads to future disciplinary or performance issues. Even in difficult situations, federal employees should do their best to be professional and pleasant to supervisors (and then find other employment or a transfer if need be). This is not always easily accomplished.
Don’t Use the Internet at Work for Personal Use
While many federal agencies are somewhat relaxed in their enforcement of these types of internet policies, it’s important to avoid using the internet for personal use while at work. Also, avoid using government-issued computers for personal use (e.g. laptops). We have represented many federal employees who are investigated for either inappropriate use of the internet (accessing inappropriate sites), misuse of government computers or in regards to too frequent personal internet use.
Often, we defend federal employees who have used the internet for Facebook, Twitter or even personal banking. It is important to keep in mind that, if an agency wants to, they can quickly determine personal usage and an investigation can start.
Avoid Using Government Email for Personal Use
It is best practice to use your personal email account for personal email correspondence. There are some exceptions. We have represented a number of federal employees who have been proposed for discipline due to misuse of their official government email account, especially with respect to certain types of content. Sometimes the federal employee’s issues involve using government email for personal use or sending inappropriate correspondence or photos. Also avoid using quotations or sayings in signature blocks when corresponding to others using your government email account.
Do Not Use Government Credit Cards for Personal Use
This happens frequently and many times it’s just mistaken use. We have represented many federal employees who have innocently used their government credit card for personal charges. Not only are many federal employees disciplined or removed for such misuse, but they can be forced to repay the funds to the government. Even if policies on credit card usage are not apparently enforced, do not use a government credit card for personal use under any circumstances. If an accidental use happens, consult an attorney to determine how to disclose this to your agency.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
We often are consulted on security clearance matters by federal employees and government contractors in the security clearance process.
In many cases, the security clearance application, investigation and adjudication process will be non-eventful. However, if problems arise, they are typically discovered as the federal employee or government contractor is in the process of preparing his or her security clearance application through e-QIP or the government’s Standard Form 86. If there are potential security clearance issues for an applicant, they should seek advice from an experienced attorney in this area as early as possible.
The following are some general tips for those individuals going through their first investigation — or their third re-investigation:
1. Take Time, Don’t Rush and Answer Security Clearance Forms Carefully
This is one of the most important tips for those undergoing the security clearance process.
Individuals often receive clearance denials because they did not take the time to read the questions asked or proofread their responses on the e-QIP/SF-86 application prior to submission. In some cases, if an individual does not take enough time to read a question and answers “no,” when they should have answered “yes,” a clearance investigator or adjudicator might conclude that the individual was attempting to be dishonest or hide information. This can lead to a clearance denial. Therefore, it is very important to carefully complete the e-QIP/SF-86 before submitting it.
2. Tell the Truth
This seems straightforward, but this recommendation cannot be overstated. Individuals applying for security clearances should be honest in all aspects of the clearance process. When an individual is dishonest during the clearance process, it could not only potentially bar the individual from receiving a security clearance, which would remain on his or her permanent clearance record, but it could also raise a number of other legal issues, including potential criminal issues.
It is often easier for a security clearance attorney to mitigate security clearance concerns involving past financial or prior drug or alcohol usage issues than to defend him or her against an allegation involving dishonesty in the clearance application or interview process.
Caveat: A security clearance applicant should consult with a security clearance attorney if there are any possible affirmative criminal disclosures or civil issues where answering “yes” could place the individual in potential legal harm. It is not often the case, but sometimes an individual may decide to avoid continuing in the security clearance process rather than answering adverse questions.
3. Examine Relevant Documents in Advance
Next, it’s important for individuals undergoing the security clearance process to take the necessary time to gather and review relevant documents related to any potential security clearance problem in advance.
Taking this step will help an individual in three ways: (a) it will help an individual remember all the details of the potential security concern, such as a past arrest, financial issue or foreign contact information, in preparation for answering questions; (b) the documentation may help to mitigate the security concerns now, if necessary; and (c) it is helpful to start organizing the information now as opposed to later when deadlines for responding may occur on short notice.
4. Prepare Yourself for the Interview
If an individual believes there’s a chance problem areas exist in a security clearance application, he or she should expect to be asked about these areas by the assigned investigator. The investigative interview can vary in duration from an hour to several hours, depending on whether significant security concerns exist. A significant amount of the discussion that comes up during the investigative interview will be obtained by the investigator through reviewing the e-QIP or SF-86. Investigators carry credentials identifying them as representatives of DCSA. When the interview starts, they will present their credentials upon introduction.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Can employers require employees to take the new COVID-19 vaccine?
This issue is likely to come up soon as vaccines for the COVID-19 virus start being deployed. The short answer to this question is likely yes for most employees in the long term. There are exceptions. As a side note, I will be in line to get the vaccine when those at higher risk have first been able to receive their vaccines first.
Religious, Disability and Moral Objections
Whether or not an individual is required to get a COVID-19 vaccine will depend on many factors, including the type of employment that the individual has and whether or not they have health conditions that could be complicated by the COVID-19 vaccine or perhaps run contrary to sincerely held religious beliefs.
Vaccines authorized under the emergency authority of the U.S. Food and Drug Administration (FDA), as the first vaccines will be at the start of the vaccination process, may be more difficult to mandate. I suspect that as the vaccines receive final approval by the FDA, which is a different process, that this could change as well. I don’t know if it will make a significant difference in the next year or two given that there also won’t likely be enough vaccines for everyone that wants one for a number of months. There are also many legal issues in flux and the legality of employers requiring vaccines could be bolstered by Congress.
As an analogy, there are employers that mandate the flu vaccine. The U.S. Occupational Safety and Health Administration (OSHA) has said that employers can legally impose a flu vaccine requirement on their workforce but that employees have the right to request medical or religious exemptions under federal anti-discrimination laws. Similar guidelines are likely to also apply for the COVID-19 vaccine.
EEOC View of Required Vaccinations
The Equal Employment Opportunity Commission’s (EEOC) view of the Civil Rights Act, is that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents her/him from taking a flu vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.
An ethical or moral objection to taking the vaccine would not likely be enough to get beyond such a requirement. Employers with undue hardships (which can override objections) will likely be seen in some types of positions, like those that require direct contact with customers or where COVID-19 outbreaks have previously occurred. In cases where employers have required flu vaccines, some employers have let employees avoid vaccination but require those employees that refuse to take a vaccine to wear a mask at work.
Eventually, the vaccines probably will be approved under the FDA’s more lengthy rules and will no longer be considered experimental. But even then, requiring a COVID-19 vaccine as a condition for returning to employment could create the potential for many types of problems. We are fairly early in the COVID-19 vaccination process, but there are likely to be more laws protecting employers that require vaccines for employees due to the severity of the pandemic.
For those that object to COVID-19 vaccines, there are also likely numerous lawsuits that will be filed over these issues unless new laws are enacted. The best practice for an employer would likely be to strongly encourage but not force an employee to take a vaccine unless there is no other option.
Contact Us
If you are in need of employment law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
With the new Biden Administration beginning in January, 2021 it is important to look at the issue of who can qualify to hold a position in the new Administration.
For several years (e.g. Bush 1, Clinton, Bush 2, Obama) there has been a consistent security clearance process in place for individuals to hold White House positions. Our Law Firm has represented individuals in the White House in the security clearance process.
Clearance Review for White House Position
For White House appointments, they will be required to undergo a security clearance review. For these types of positions, the Federal Bureau of Investigation (FBI) has been designated to conduct security clearance investigations. The individual will be asked to complete a SF-86 form (also known as e-QIP) to begin their clearance review. Once the initial forms are completed and reviewed, the individual will be interviewed by FBI investigators and a security clearance investigation will begin.
An applicant can expect a full and complete investigation by the FBI. Friends and relatives of an applicant will be interviewed, foreign contacts will be reviewed and background information will be examined. The FBI’s goal in investigating an applicant for a White House position is to attempt to determine whether they might be susceptible to any sort of influence or blackmail that might cause them to disclose classified information.
The applicant’s full background investigation will then be given to the personnel security division of the Executive Office of the President (EOP), which handles security clearance decisions. These are career officials that oversee the security clearance process. Once received, they will review the FBI investigation and make their determination as to whether or not a security clearance should be granted. The EOP decision will generally be controlling absent further action by the President.
Decision on Security Clearances for White House Employees or Appointees
While a President retains the ultimate say as to whether or not to grant an individual’s security clearance, they have usually deferred (for the most part) to clearance recommendations. There is a good reason for this. Most presidents do not want to be seen as showing favoritism towards an individual with security risks for important appointments.
For this level of appointment, if an individual’s clearance is denied, they are unlikely to be able to hold their position. In contrast to other federal agencies, White House appointees have less access to due process in contesting security clearance determinations.
While politics can play a role in allowing an appointee the ability to respond to negative clearance concerns with mitigating information, there is less of an entitlement to due process given that White House appointees serve at the pleasure of the President. This is different than the situation with career employees of the EOP that are able to respond to security clearance concerns and receive the ability to respond to adverse clearance determinations.
Conclusion
We represent individuals in security clearance matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070 to schedule a meeting to go over individual issues and potential representation.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
As many have heard, as of July 1, 2020, the new Virginia Human Rights Act began to provide new protections from discrimination for employees based on sexual orientation or gender identity. A lesser-known form of discrimination was also prohibited as of that date, which prohibits race discrimination based on hairstyle. Governor Northam signed the VHRA into law on March 4, 2020.
The Virginia legislature, in amending the VHRA, included a ban on discrimination “because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”
Governor Northam stated, in approving the law: “It’s pretty simple — if we send children home from school because their hair looks a certain way, or otherwise ban certain hairstyles associated with a particular race — that is discrimination… This is not only unacceptable and wrong, it is not what we stand for in Virginia. This bill will make our Commonwealth more equitable and welcoming for all.” The Governor’s press release also cited to comments by Virginia Delegate McQuinn: “A person’s hair is a core part of their identity… Nobody deserves to be discriminated against simply due to the hair type they were born with, or the way in which they choose to wear it. The acceptance of one’s self is the key to accepting others.”
The Commonwealth of Virginia is now the fourth state to ban race-based hairstyle discrimination after California, New Jersey and New York passed similar laws. Colorado is in the process of enacting a similar law presently, and more than 20 other states have similar legislation proposed or pending.
This new legislation is likely to need to a 2-3 year period of adjustment as employers in Virginia start to realize that such forms of discrimination are against the law either through the complaint process or in court. A link to the new Virginia law is located here.
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If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
It is important to obtain legal advice prior to meeting with security clearance investigators when potential security clearance problems are anticipated.
When individuals have difficulties in the security clearance process or anticipate future problems, the best advice that can be given is to prepare in advance for the meeting. Preparation for the first security clearance meeting can make the difference between a government contractor/federal employee successfully obtaining/retaining a security clearance or being denied one.
Preparing for the Initial Security Clearance Investigator Meeting
One of the most important considerations in meeting with a security clearance investigator for the first time is to adequately prepare for the meeting, especially where there may be potential disqualifying security concerns. We find that most government contractors and federal employees have a general sense of potential security concerns that could arise at the time that they begin to review or complete their e-QIP/SF-86 submissions.
In the most common scenario, an individual is usually alerted to potential problems that may require preparation for the clearance process when they find that they may have to answer “yes” to a certain question and then provide formal disclosures to an uncomfortable question, such as the use of drugs or past financial debts. When these types of issues are anticipated, then one should seek counsel and prepare in advance of a meeting with a security clearance investigator.
Review Relevant Documentation
If a potential security concern exists, it is important to gather as much information and documentation one has on the issue of concern in preparation for the interview. Such information, if useful, can be provided to security clearance investigators at the start. At other times, the information can be useful for later in the clearance process, if needed.
For example, suppose an individual knows that they have a large outstanding debt on their credit report. If so, then that information will certainly be important to review prior to a meeting with a security clearance investigator.
Respond to the Questions Asked
In regard to meetings between government contractors/federal employees and security clearance investigators, one other issue that we run across is the tendency of some individuals to provide information not sought by an investigator.
We advise government contractors and federal employees to answer the questions asked by investigators as honestly as possible but stick to the actual questions that are posed. On many occasions, individuals can get sidetracked or provide information that is not relevant to the questions asked by an investigator, which may cause clearance difficulties later or cause frustration for the investigator.
The usual key to a successful interview is to be as responsive as possible to any areas of concern but to make the meeting with the clearance investigator as efficient as possible. Investigators tend to have many cases to review and like to focus on their particular areas of concern. The better an individual can honestly address specific issues raised by an investigator, the better the potential outcome.
When issues arise, it is important to consult with counsel to obtain the best legal advice possible in presenting one’s response to difficult questions.
Follow-up Interviews or Requests by the Investigator
A security clearance investigator may need additional information regarding potential security concerns or need to interview an individual a second time. We typically advise individuals to attempt to anticipate these requests in advance.
For example, if an investigator appears to have questions about one’s psychological issues during an initial interview, it may be helpful to attempt to obtain a letter from a medical professional soon after that shows that the psychological concerns are under control and have been resolved. Doing so in advance can save time and effort later and may resolve issues early should the investigator come back with additional questions.
Contact Us
If you are in need of security clearance legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
We represent individual government contractors (typically private employees that work for government defense contractors) in debarment cases before federal agencies, like the Department of Defense and many others agencies.
What is a Debarment?
Debarments (and shorter term suspensions) are government actions taken under the Federal Acquisition Regulation (FAR) to protect the government’s interest from contractors that have been alleged to be irresponsible. Suspensions result in temporary contractor ineligibility to work on government contracts, usually occurring during an investigation or during other ongoing legal matters. Debarments can last a period of years. Suspensions and debarments are not for the purpose of punishing a government contractor, but for protecting the public.
Some government contractors can have both debarment and security clearance issues.
Effect of Debarments and Suspensions
Debarments and suspensions have a significant impact on individual government contractors. These often include removal from their government contract employment (and potential termination from employment) and potential security clearance issues. Government contractors that are debarred, suspended or proposed for debarment are not eligible to receive contracts, unless a compelling reason exists, which can be a very high bar to meet.
The government takes a straightforward approach to debarment and there is a robust response process. Of late, the government has also seemed to take a more assertive approach in debarment or suspension of individuals that are under the suspicion of wrongdoing, even if they have not been convicted of any crime.
Common Reasons for Debarment (of Suspension of Eligibility)
The most common reasons for debarment or suspension can often include:
- Criminal Convictions or Pending Charges
- Civil Judgments and/or Liens
- Evidence of Crimes
- Specific Misconduct (e.g. time and attendance mischarging)
Debarment/Suspension Process
At the start of the disbarment process, the government will issue a show cause letter requiring a government contractor to demonstrate why they should not be suspended or debarred. These proceedings are completely relatively quickly and individual government contractors must respond in order to avoid a negative outcome.
A debarment or suspension proceeding is similar, somewhat to a security clearance proceeding. The government will generally provide a show cause letter to the individual pursuant to the FAR, an initial chance to respond to the allegations, along with a memorandum in support of proposed debarment. If the matter proceeds, the individual contractor will have to respond to a Notice of Proposed Debarment from the government.
Responding to Debarments
In responding to a notice of proposed debarment, it is important to fully address all allegations of misconduct or impropriety, through counsel. We often find it helpful to submit letters of support on behalf of the individual, awards, commendations and other materials which demonstrate the character and integrity of the individual.
Additionally, cooperation in related investigations, completion of ethics training in a relevant area, acceptance of responsibility and other mitigating arguments should be made to the Debarring Official in an effort to convince them that debarment is not needed or that mitigation is appropriate.
Following the response period, a decision will be rendered by the Debarring Official. The Debarring Official can uphold, mitigate or terminate the Debarment. If a negative finding is reached, leaving the person in a debarment status, that finding will be placed in the debarment database, known as the System for Award Managements (SAM). Further, if a negative finding is upheld, there is sometimes the ability to seek reconsideration of a negative debarment finding. The process can involve contacting the Debarring Official with new or other evidence and seeking to reduce the debarment. It is important to have legal representation in this process.
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If you are in need of legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
The Federal Erroneous Retirement Coverage Corrections Act (FERCCA) was enacted in September, 2000 and designed to provide relief to federal civilian employees who were placed in the wrong federal retirement system for at least three years of service after December 31, 1986.
Typically, FERCCA errors arise when a federal employee experiences a break in service, especially during the mid-1980s when the Federal Employees Retirement Systems (FERS) plan was created. In some cases, FERCCA has provided federal employees and annuitants placed in the wrong federal retirement system with the opportunity to choose between FERS and the offset provisions contained within the Civil Service Retirement System (CSRS).
In order to determine if you are in the correct federal retirement plan, you need to know the type of appointment you have and your work history. Federal retirement rules governing retirement plan placement are complex and contain many exceptions that are hard to follow. If you find that you fit in any of the situations described below, you could be in the wrong federal retirement system. However, keep in mind that there are exceptions to the general rules.
If you currently have CSRS coverage, then you may be in the wrong plan if:
- You worked for the federal government before 1984, but not on a permanent basis
- You left federal employment for more than a year at any time after 1983
- You have a temporary appointment limited to a year or less, a term appointment, or an emergency indefinite appointment
- You have no federal civilian employment before 1984
- You do not have a career or career conditional appointment and you work on an intermittent basis (see the work schedule block on your SF-50)
If you currently have CSRS Offset coverage, then you may be in the wrong plan if:
- You have a temporary appointment limited to a year or less, a term appointment, or an emergency indefinite appointment
- You have no federal civilian employment before 1984
- You do not have a career or career conditional appointment and you work on an intermittent basis (see the work schedule block on your SF-50)
- You did not work for the federal government for a total of five years before 1987 (not including your military service). Exception: If you worked under CSRS, left the federal government, and your agency placed you in CSRS Offset upon your return, your CSRS Offset coverage is probably correct if you had five years of federal government service when you left.
If you currently have FERS coverage, then you may be in the wrong plan if:
- You have a temporary appointment limited to a year or less
- You do not have a career or career conditional appointment and you work on an intermittent basis
- You have worked for the federal government for at least five years before 1987 (not including military service) unless you elected to transfer to FERS during a FERS Open Season or after a break in service
FERCCA can also provide 1) reimbursement for certain out-of-pocket expenses paid as a result of a coverage error (e.g., attorney’s fees, costs, etc.); 2) an ability to benefit from certain changes in the rules about how some federal service is credited toward retirement; and 3) make-up contributions to the federal employee’s Thrift Savings Plan (TSP) and receipt of lost earnings on those contributions, among other provisions.
If you think that you have a FERCCA error, you should notify your agency’s Human Resources department. Pursuant to FERCCA regulations, the federal government — upon its receipt of notice that a potential FERCCA error exists — should review your work history to confirm whether a FERCCA error actually exists and supply you with correspondence confirming the FERCCA error and other pertinent information, including benefit estimates for individuals entitled to an election option.
You should also receive a federal election form and information regarding how to receive reimbursement for your actual out-of-pocket expenses related to your FERCCA error, including attorneys’ fees. For more information, visit the Office of Personnel Management’s web site for frequently asked questions concerning FERCCA.
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If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
