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 U.S. Supreme Court, on June 15, 2020, by a 6-3 vote, in the case of Bostock v. Clayton County, ruled that federal law protects gay and transgender workers (or applicants) from employment discrimination. A copy of the new landmark Supreme Court case is provided here.
In short, the new court case found that “an employer who fires an individual merely for being gay or transgender violates Title VII” of the Civil Rights Act.” This is a landmark decision, the extent of which will evolve in the years to come as other courts start hearing these types of employment discrimination cases.
Why is the Ruling Important?
The major reason why the Supreme Court decision is so important is that there have been few protections against sexual orientation discrimination (even fewer for transgender discrimination) under various state laws. Less than one-half of the states have laws banning sexual orientation or gender identity discrimination (Virginia enacted one recently).
For the first time, employees in all 50 states have protections from this type of discrimination. This ruling makes it just as illegal under the Civil Rights Act of 1964 for an employer to discriminate against someone for being gay or transgender as it does for employers to discriminate against employees based on race, sex or religion.
Justice Neil Gorsuch, in drafting the Supreme Court’s decision, reasoned that while the Civil Rights Act was passed in 1964, the language used at the time by Congress had many unintended consequences at the time which have come to light over the past 56 years. Justice Gorsuch believed that the language in the 1964 law applied to gay and transgender employees:
“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Three Justices disagreed, including Samuel Alito, Clarence Thomas and Brett Kavanaugh.
What does the Ruling Mean?
The new Supreme Court ruling means that employees (or applicants) who are fired, not hired, or otherwise discriminated against at work because they are gay or transgender, will be able to file equal employment opportunity (EEO) complaints and sue their employers in federal court for illegal discrimination.
The Equal Employment Opportunity Commission is currently revising their website to account for this new decision and their role in enforcing the decision of the Supreme Court in the 50 states.
Because the Civil Rights Act applies to employers with 15 or more employees, there remains a gap in protections for gay and transgender employees in the 25 or so states without state law protections. There is also the hope that some states that don’t specifically protect gay or transgender employees from discrimination may interpret their own civil rights laws to now include such protections taking a cue from the U.S. Supreme Court.
In short, it is the first federal step in protecting gay and transgender employees from employment discrimination. It is also long overdue.
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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 see many types of security clearance cases involving alcohol usage. The pandemic has not helped matters as many people have engaged in more alcohol usage while at home.
One of the most common issues that has arisen over the past few years in the context of security clearance holders or applicants involves alcohol abuse or over-consumption.
Alcohol Consumption/Abuse by Cleared Employees or Applicants
Under the security clearance guidelines, alcohol over-consumption and abuse can be a major factor in determining whether a person obtains or keeps their security clearance.
Security concerns regarding this issue fall under Adjudicative Guideline G, Alcohol Consumption of Security Executive Agency Directive (SEAD) 4. These are the guidelines that apply across the Government for security clearance holders.
Alcohol security concerns can come into play when an individual has a major alcohol-related incident. The most common issue that begins a security clearance review is a recent alcohol-related traffic incident, such as being arrested for driving under the influence. A recent event gives security clearance officials pause and makes them ask the question of whether or not it is an isolated incident or something more serious.
Security Concerns Raised by Alcohol Abuse or Consumption
When security clearance issues arise involving alcohol abuse or over-consumption, it is very important to take them seriously.
The major security concern for federal agencies that evaluate security clearances is that excessive alcohol consumption can lead to the use of questionable judgment or the failure to control impulses, both of which are not considered acceptable for purposes of access to classified information. As a result, the Government has listed alcohol-related concerns that could cause one to lose (or not get) a security clearance. Quoting from SEAD 4, these include:
“(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use disorder
(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others, regardless of whether the individual is diagnosed with alcohol use disorder
(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder
(d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder
(e) the failure to follow treatment advice once diagnosed
(f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder
(g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence.”
How to Mitigate Alcohol-Related Security Concerns
The Government has established a number of ways in which a security clearance holder or applicant can mitigate alcohol-related security concerns. They include, but are not limited to, the following:
- A significant amount of time has passed since the alcohol-related incident.
- The alcohol usage or related incident was unusual and/or is unlikely to happen again.
- The individual acknowledges their alcohol issue and provides evidence to show that they have overcome it or are seriously working on the alcohol issues through treatment.
- The individual has completed a treatment program and established a pattern of modified consumption or abstinence.
Alcohol consumption security clearance issues can involve many different variables so seeking experienced counsel is critical; every case is different. The key for successfully handling alcohol-related security clearance issues is to focus on them as early as possible.
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If you are in need of security clearance 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.
The Merit Systems Protection Board (MSPB) is an appeals forum for federal employees and former federal employees to challenge various types of federal agency actions, such as serious disciplinary actions (adverse actions), retirement appeals, whistleblower matters and other types of cases. The most usual type of appeal for federal employees involves filing an appeal over a serious disciplinary action, such as removal from the federal service.
During an appeal a federal employee can choose to be represented by an attorney or not be. In almost all cases, however, the federal agency will be represented in the appeal by an attorney. This article discusses some of the reasons for retaining an attorney familiar with the MSPB process to assist you in an appeal. In other words, the reasons why it is important for a federal employee to retain an MSPB attorney. Here are some reasons why it is important for a federal employee to retain an MSPB lawyer for their appeal.
Federal Agencies Treat MSPB Cases Differently When an Employee Has an Attorney
One of the reasons why it is important to have an MSPB experienced attorney representing a federal employee is that it will very likely make a difference in how the federal agency treats the MSPB appeal at issue. Federal agencies allocate their attorney resources first to cases where an individual has their own attorney. Those cases tend to get the most attention because there are attorneys on both sides of the appeal.
In other words, where an appellant has their own attorney, the federal agency involved will focus more on that individual’s appeal merely because they have an attorney. This focus can help to settle MSPB appeals.
The MSPB Process is Much Like a Regular Court Case
One of the most important reasons why it is important to have an MSPB attorney represent a federal employee in the appeals process is the fact that it is a very serious type of appeal, functioning much like a court case. There is a general misperception that the process is designed for an employee to effectively represent themselves. An MSPB appeal functions much like a civil court case where there is discovery, the taking of depositions and the filing of briefs.
It is critical that an appellant have counsel to assist them in these difficult and sometimes complex processes. It is often the case where federal employees discovery this fact late and we are contacted after discovery deadlines have passed which can make appeals much more difficult to prevail in and/or settle. It is important to have an MSPB attorney early in the process.
Having an Attorney Can Increase the Chances of Settlement
Federal employees who retain attorneys in the MSPB process, in our experience, are more likely to resolve their MSPB appeals. Part of the calculation by federal agencies, in determining whether or not to settle MSPB cases has to do with risk. Federal agency attorneys evaluate the risk of losing an appeal (a risk which increases when an employee has an attorney), but also other types of risks including the risk of adverse information being disclosed through discovery.
Individuals without counsel can run across difficulties such as how to format discovery requests or take depositions which can limit the amount of critical information uncovered in an appeal. This can decrease the chances of settling an MSPB appeal. MSPB lawyers are also able to understand and work out the legal terms of a settlement agreement with federal agency counsel to minimize risk and to attempt to ensure compliance with settlement agreements.
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.
Employers have started to see the first lawsuits by employees and customers related to the COVID-19 pandemic.
The numbers of these types of cases will only continue to increase, given the lack of a cohesive strategy by federal and state governments in dealing with the reopening of businesses and the potential for liability. Hopefully, Congress will deal with this problem quickly and compromise. As of June 12, 2020, according to a tracker of COVID-19 cases, approximately 2,700 COVID-19 lawsuits have been filed.
The First Lawsuits Have Started
The first COVID-19 related lawsuits seen thus far include a class action by McDonald’s workers and a wrongful death action filed by a Safeway employee’s family. Many other lawsuits have been filed, both small and large, and we are starting to see employers require employees to sign waivers in order to return to work, and other businesses and events requiring individuals to sign waivers before entering.
For instance, some businesses have required individuals to sign waivers of legal rights to enter gyms or salons or to attend other events. For example, at the President’s campaign rally in Tulsa, Oklahoma attendees were required to waive their right to sue the campaign in the event they contracted COVID-19 at the President’s campaign rally.
Employers are Seeking Liability Protections
The question of whether a business is liable if their employees or customers catch COVID-19 has become a critical issue as many states reopen retail, foodservice and other businesses. Businesses contend that they are subject to numerous lawsuits without any liability protections and are seeking legal protections from Congress, or even individual states, as the pandemic subsides. On the other side, opponents of liability protections argue that limiting liability for businesses could cause them to ignore safety rules, endangering both employees and customers.
A Compromise is Very Likely
It is likely that a compromise will be found, through congressional action, or worst case, on a state-by-state basis. There will need to be a balance between the protection of employees and customers and in ensuring that businesses do not go bankrupt through needless and often frivolous litigation. It is likely that these liability protections may find themselves in pending congressional bills which provide additional financial relief to individuals and businesses affected by the pandemic. In the end, businesses and employers that act reasonably will likely be mostly safe from litigation.
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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 Commonwealth of Virginia enacted a number of new employment laws this year, completely transforming employee rights as never before.
One of these new employment laws in Virginia involves providing Whistleblower rights for employees. In the past, employees had to rely on a very weak system of whistleblower protection that was developed through the courts and case law. Essentially, there was little protection for those terminated for blowing the whistle on an employer’s illegal conduct. That has now changed and this article discusses the new Virginia Whistleblower legislation.
Virginia’s New Whistleblower Law
Virginia’s new whistleblower law, enacted in House Bill 798, was sponsored by State Delegate Karrie Delaney, was signed into law on April 11, 2020, by Governor Ralph Northam and becomes effective on July 1, 2020.
The new law prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee or from taking other retaliatory action with respect to the employee’s compensation, terms, conditions, location or privileges of employment.
How an Employee May Be Protected Under the Whistleblower Protection Law
An employee may be protected by Virginia’s new Whistleblower Protection Law if they:
(1) Report in good faith (or cause another employee to report in good faith) a violation of state law, federal law, or regulation to a supervisor, law enforcement or to any governmental body (e.g., Fairfax/Arlington County, City of Alexandria, federal government authorities).
(2) Are asked by law enforcement or a governmental body to participate in an investigation, hearing or inquiry.
(3) Refuse to commit a criminal act for the employer that would expose the employee to potential criminal liability.
(4) Refuse an employer’s order to perform an act that would violate any federal or state law or regulation (and explain to their employer that their refusal is based on potentially violating the law).
(5) Testify before law enforcement or a governmental body if it is connected to an investigation of an employer’s unlawful conduct.
Employee Remedies
If an employee is subject to whistleblower retaliation, then she/he may file a lawsuit within a year of the retaliation. Courts in Virginia may issue an injunction against the employer’s retaliation, reinstate a wrongfully terminated employee, provide appropriate backpay, attorneys fees and compensation and costs.
The law is new and more complex than provided in this article so it is important to obtain legal advice if a suspected case of retaliation develops.
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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.
The pending decisions by the Fairfax County Public Schools (FCPS) and Arlington County Public Schools (APS) about in-person instruction in the fall due to the COVID-19 pandemic have been an important issue for many individuals in Northern Virginia.
A number of families recently filed a complaint against FCPS on May 8, 2020, alleging a systemic lack of instruction given to Fairfax students with disabilities or special education needs. The complaint appears to be one of the first complaints on behalf of special needs students affected by online instruction and the pandemic. A federal class action was recently filed in court alleging similar issues against the Commonwealth of Pennsylvania in a recent lawsuit.
The Recent FCPS Issues and Complaint
Given recent news, Governor Ralph Northam is re-opening public schools in the fall, leaving significant discretion to counties. Individual counties will have significant flexibility in re-opening their schools.
Those families with special education needs and Individual Education Plans (commonly known as IEPs) are especially concerned. These students are substantially more affected than other students due to the lack of in-person instruction in schools. As a result, Fairfax County families filed a complaint against FCPS with the Virginia Department of Education (VDOE), alleging a failure to provide equal learning opportunities to students with disabilities during the COVID-19 pandemic.
Some of the examples cited in the May 8, 2020 complaint included requiring special education students to follow online classes for only portions of the day. Many students, given their disabilities, were unable to do so. Other students with disabilities were allegedly told that their specialized instruction would only begin when in-person school re-opens.
Federal Law Requires Protection of Those with Disabilities
There are several laws that protect students with disabilities. Principal among these is the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.§ 1400. Pursuant to federal law, children with learning disabilities must receive specialized instruction in order to provide them with a level playing field with those that do not suffer from such disabilities.
IDEA is a law that makes available a free appropriate public education to eligible children with disabilities throughout the nation and ensures special education and related services to those children. IDEA governs how states and public government agencies provide early intervention, special education, and related services to the almost seven million eligible children with disabilities.
However, according to the complaint the problem has been that FCPS was allegedly “pausing” such education until schools physically re-opened. As of this writing, there were at least three federal court cases filed in different jurisdictions nationally against other school systems regarding the lack of specialized instruction for special education students under IDEA. Further delays or curtailing of in-person special education may lead to additional lawsuits.
Difficulties Faced by Those with Learning Disabilities and Online Education
Families in the complaint have alleged that FCPS left children behind that need special education instruction behind due to the lack of in-person education. Many of the students involved in the complaint against FCPS have autism and dyslexia. While it is undoubtedly difficult for FCPS to have maneuvered these issues in March or April, there is hope that FCPS will strive to provide in-person education for healthy students, with proper protections, for those with special educational needs.
According to one of the parents of a child in the complaint, FCPS requested a delay in responding to parents’ complaint until June 11, 2020, which was granted. However, FCPS may have submitted their response past the business hours deadline on June 11, 2020. It is unknown whether VDOE will accept an after-hours response as of this writing.
Conclusion
Findings in the complaint by VDOE are due on July 7, 2020, unless further delays occur. Hopefully, FCPS, APS and other school systems will address the needs of affected special needs students. If interested in the complaint process or for more information, parents can contact VDOE here.
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.
Given the pandemic, and the current state of the economy, many employment lawyers for businesses and employees are preparing for a number of lawsuits related to COVID-19. There are many different types of potential employee civil claims that will ultimately arise as a result of the pandemic, the economy, layoffs and terminations.
The following are just a few examples of the type of litigation that may be on the horizon.
Negligence Claims Against Employers
One of the first types of claims that we expect to see in the near future are lawsuits filed by employees related to them getting sick from COVID-19.
It is likely that we will see some employees claim that they were subjected to work-related risks and were infected by COVID-19 as a result. It is too early to see whether or not Virginia, different states or the federal government will enact legislation limiting liability for these employers. Some of these claims may likely be based on employers that did not follow the letter of Executive Orders from the Governor or other relevant government medical authorities.
Some states may decide to make employers immune from such liability by expanding workers’ compensation coverage to make it easier to claim injuries without proof that it occurred at work. This would essentially shift liability from businesses to the state or create a hybrid solution. Businesses are likely to need this type of relief from the state.
Discrimination Claims Against Employers
One of the other types of claims that we are likely to see by employees involves discrimination claims with respect to pandemic-related terminations and layoffs. These are likely to be claims arguing that some employees were retained or terminated in a discriminatory fashion. For instance, we may see arguments that retention of employees was illegally based on race or sex.
Claims for Unpaid Wages
Another area that we are likely to see employee lawsuits filed over involve unpaid wage claims related to the pandemic. Many employers have been adversely affected and became insolvent immediately, unable to pay employees. Other employers may have thought that they could delay payment of wages to employees during the pandemic, which is illegal. In either case, a number of employees are likely to file such claims in the coming weeks and months.
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It is too soon to tell all the ways in which the pandemic will affect employer-employee claims, but they are likely coming in the near future. 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 Kimberly Berry
Our law firm handles many different types of federal retirement issues in our representation of federal employees.
One of the more common types of retirement cases that we often handle involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management.
Federal employees filing for disability retirement are typically covered under the Federal Employees Retirement System or the Civil Service Retirement System.
Federal employees should consider the following questions before they pursue OPM disability retirement:
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, keep in mind that OPM evaluates your continued ability to work with your medical condition in the context of the duties described in your position description. If the medical disability is not deemed serious enough, or not fully supported by medical documentation and evidence, and is not sufficiently linked to your inability to “usefully and efficiently” carry out your job duties, then OPM may deny the disability retirement application.
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 disability retirement, it is important for you to consider the expected duration of your medical disability. Disabilities with known shorter duration could be problematic for you in the application process.
Can a federal employee survive on a reduced annuity?
If you are considering filing for OPM disability retirement, understand that this type of retirement usually provides you with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that you obtain benefit estimates from your human resources representative and consult with a financial advisor about the impact of a potential reduced annuity prior to filing for disability retirement.
Are there modifications to a federal employee’s current position that can be made to allow the federal employee to continue to work?
Oftentimes a federal agency will work with you to provide you with a reasonable accommodation (i.e., change in duties, hours, telework or other adjustments) that can make your current position and medical condition workable. This can often be the best solution, even if it is only a short-term solution.
As a part of the disability retirement process, the federal agency is required to certify that it is unable to accommodate your disabling medical condition in your present position. The agency must also certify that it has considered you “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.”
Do your medical professionals believe that you should not continue in your current position?
This is an important consideration 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.
There are at least two reasons to discuss a possible filing for OPM disability retirement with your treating medical provider(s). First, your health should be of primary importance and a consideration when determining whether continuing in a job hinders or impedes your recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the disability retirement application process with OPM.
OPM will require a physician’s statement about your medical issues, and the physician’s statement can either make or break the outcome of your disability retirement application.
When considering OPM disability retirement, it is important to obtain the advice and representation of legal counsel. 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.
Many Virginians have recently found themselves laid off or otherwise out of work due to the impact of the COVID-19 pandemic. As a result, unemployment compensation benefits are needed like never before. This is a short article on the unemployment claims process in Virginia and benefits in light of new legislation.
Benefits for affected employees can be sought through the Virginia Employment Commission (VEC). Employees who have been laid off, terminated or otherwise had their hours reduced can qualify. Here is a link to the VEC directions for initiating a claim.
Changes to Unemployment Claims Related to COVID-19
On March 12, the U.S. Department of Labor (DOL) also provided additional guidance to state unemployment agencies interpreting unemployment benefits related to the COVID-19 pandemic. The DOL offered states guidance in being flexible in awarding unemployment compensation to those affected.
As of March 15, the Commonwealth of Virginia waived the one-week waiting period for the unemployed to receive unemployment benefits. The effect of this change is that out of work Virginians can receive unemployment compensation benefits sooner.
Another change is that a claimant in Virginia has usually had to show that they were actively seeking new work, but Virginia changed this requirement in light of COVID-19 for obvious reasons.
Lastly, Virginia is in the process of making unemployment compensation benefits available to the self-employed (1099 and Gig Economy workers) pursuant to an order from Governor Northam.
To file for unemployment compensation in Virginia, please apply at www.vec.virginia.gov. It is also recommended to file as soon as possible so that benefits can start as soon as possible.
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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.
Many security clearance holders and future applicants have been affected by the COVID-19/Coronavirus pandemic, most often in connection with their overall financial situation or credit. This article discusses the potential security clearance implications of the Coronavirus/COVID-19 for security clearance holders and applicants.
Financial Issues
The most common security clearance concern for clearance holders, even before the pandemic, involved financial issues. The current COVID-19 crisis will directly impact these types of security concerns. Individuals will likely face potential financial losses, bankruptcy, bad credit or unmanageable debt as a result of the crisis.
These types of issues fall under Guideline F, Financial Considerations pursuant to Security Executive Agent Directive 4 (SEAD 4). SEAD 4 provides the Government’s security clearance guidelines that adjudicators review in evaluating whether or not to grant a security clearance. Financial concerns usually include bad credit, unpaid debts, unpaid taxes and other related financial issues.
It is very likely, due to the existing and future disruptions in business and work that many individuals could be laid off or lose their jobs if the COVID-19 pandemic lasts for an extended period of time. We may very well be entering a recession right now given the number of jobless claims that have recently been filed.
With these recent layoffs, individual finances are clearly going to be negatively impacted. An economic downturn and loss of work can have massive financial implications for many government contractors and other private-sector employees in a relatively short period of time. If individuals are laid off, it is often the case that they find themselves financially underwater within a month. As a result, these individuals are often unable to pay their mortgage, rent, car loans, consumer credit loans or other major bills.
These types of issues affect security clearance holders as debts which result from such a recession are not easily rectified immediately even when new positions requiring clearances become available. We still have clients who lost a majority of their investments during the Great Recession between 2007 and 2009 who still have to address financial issues in connection with their security clearances. In other words, COVID-19 may lead to a downturn which can have a major effect on security clearance holders or applicants for a long period of time.
The COVID-19 Crisis Will Most Certainly Be Viewed as Unique and Mitigating
In terms of security clearances, there is good news for clearance holders, applicants and future applicants. Clearance adjudicators recognize that major shared events, like recessions, are unique in nature which can help to mitigate those security clearance concerns. COVID-19 related financial issues and any downturn would almost certainly fall in this category.
Specifically, SEAD 4, under Guideline F, Financial Considerations, provides mitigation to those facing security concerns related to debts, credit and other financial issues. SEAD 4. Paragraph 20(a) provides as mitigation that “the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur…” Furthermore, Paragraph 20(b) states, as a key mitigating factor that “the conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency… and the individual acted responsibly under the circumstances.)”
There is no reason to doubt that security clearance adjudicators will give serious consideration to mitigating financial-related security clearance concerns related to debts, bankruptcy and taxes as they have done in the past as it relates to losses occurring as a result of the COVID-19 pandemic.
Our general advice to security clearance holders is for them to keep on top of their finances, work with creditors (even if they are uncooperative) if they are laid off or lose their jobs and keep copies of all documents and their attempts to resolve debts or otherwise appear to act responsibly. Even if a creditor doesn’t act reasonable, copies of records showing that the individual tried to do their best in a difficult financial situation is often very helpful.
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If you are in need of security clearance 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.
Virginia employees, if House Bill 123 is signed by Governor Ralph Northam or not otherwise acted upon by April 6, 2020, will have new rights to wages that are unlawfully unpaid.
Virginia House Bill 123 has been passed by both the Virginia House and Senate. The new legislation would create a private right of action for collecting unpaid wages in Virginia. House Bill 123 allows employees that have not been paid to sue an employer to recover their pay, in addition to damages.
Details of Employer Damages and Penalties
House Bill 123 permits Virginia employees to bring claims against employers that fail to pay wages and allows them to recover the wages owed, plus 8% interest from the date that the wages were due. Employees can also be awarded triple damages (3 times the amount of unpaid wages), their attorney’s fees and other costs if a court finds that the employer knowingly failed to pay the wages.
In our experience, most employers are aware that they did not pay wages owed to an employee. There is also a $1,000 civil penalty against the employe for a violation.
Example: Under the law, for example, if an employer fails to pay an employee $1,000 that they earned, they could be liable for that amount, plus 8%, potentially 3 times the wages that were not paid, along with attorney’s fees incurred by the employee, and a civil penalty.
The $1,000 that was unpaid could easily become a judgment against the employer for $5,000 to $8,000 by the time damages and fees are included. Then the civil penalty would also need to be added. If a court finds that there is a genuine dispute between an employer and employee, the employer would not be required to pay triple damages.
Criminal Penalties for Employer Apply
There are also criminal law penalties in the new law. Employers could be found guilty of a misdemeanor, punishable by up to 12 months in jail, if the wages owed are less than $10,000. Employers are to be considered guilty of a felony, punishable by a prison term of up to five years, if the value of wages owed is at least $10,000 or if the employer previously had been convicted of such a violation.
Criminal liability now only applies if the nonpayment of wages was willful with the intent to defraud. If signed by the Governor or allowed to become law, the legislation would take effect July 1, 2020.
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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 Kimberly Berry
Our law firm handles many different types of federal retirement issues in our representation of federal employees.
One of the more common types of retirement cases that we often handle involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management.
Federal employees filing for disability retirement are typically covered under the Federal Employees Retirement System or the Civil Service Retirement System.
Federal employees should consider the following questions before they pursue OPM disability retirement:
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, keep in mind that OPM evaluates your continued ability to work with your medical condition in the context of the duties described in your position description. If the medical disability is not deemed serious enough, or not fully supported by medical documentation and evidence, and is not sufficiently linked to your inability to “usefully and efficiently” carry out your job duties, then OPM may deny the disability retirement application.
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 disability retirement, it is important for you to consider the expected duration of your medical disability. Disabilities with known shorter duration could be problematic for you in the application process.
Can a federal employee survive on a reduced annuity?
If you are considering filing for OPM disability retirement, understand that this type of retirement usually provides you with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that you obtain benefit estimates from your human resources representative and consult with a financial advisor about the impact of a potential reduced annuity prior to filing for disability retirement.
Are there modifications to a federal employee’s current position that can be made to allow the federal employee to continue to work?
Oftentimes a federal agency will work with you to provide you with a reasonable accommodation (i.e., change in duties, hours, telework or other adjustments) that can make your current position and medical condition workable. This can often be the best solution, even if it is only a short-term solution.
As a part of the disability retirement process, the federal agency is required to certify that it is unable to accommodate your disabling medical condition in your present position. The agency must also certify that it has considered you “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.”
Do your medical professionals believe that you should not continue in your current position?
This is an important consideration 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.
There are at least two reasons to discuss a possible filing for OPM disability retirement with your treating medical provider(s). First, your health should be of primary importance and a consideration when determining whether continuing in a job hinders or impedes your recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the disability retirement application process with OPM.
OPM will require a physician’s statement about your medical issues, and the physician’s statement can either make or break the outcome of your disability retirement application.
When considering OPM disability retirement, it is important to obtain the advice and representation of legal counsel. 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.
On February 6, 2020, the Virginia Values Act passed HB 1663 in the Virginia House by a vote of 59 to 35 and SB 868 in the Virginia Senate by a vote of 30 to 9. The new legislation adds sexual orientation and gender identity to the state’s civil rights protections in the Virginia Human Rights Act.
The Virginia House published a summary of the new legislation, establishing several new civil claims as unlawful discrimination. The original summary of HB 1633 provides a good summation of this landmark legislation:
[The new law] creates explicit causes of action for unlawful discrimination in public accommodations and employment in the Virginia Human Rights Act. Currently, under the Act there is no cause of action for discrimination in public accommodations, and the only causes of action for discrimination in employment are for (i) unlawful discharge on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, including lactation, by employers employing more than five but fewer than 15 persons and (ii) unlawful discharge on the basis of age by employers employing more than five but fewer than 20 persons.
The bill allows the causes of action to be pursued privately by the aggrieved person or, in certain circumstances, by the Attorney General. The bill prohibits discrimination in public and private employment on the basis of sexual orientation and gender identity. The bill also codifies for state and local government employment the current prohibitions on discrimination in employment on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, or status as a veteran.
Additionally, the bill (a) prohibits discrimination in public accommodations on the basis of sexual orientation, gender identity, or status as a veteran; (b) prohibits discrimination in credit on the basis of sexual orientation, gender identity, pregnancy, childbirth or related medical conditions, disability, and status as a veteran; and (c) adds discrimination on the basis of an individual’s sexual orientation, gender identity, pregnancy, childbirth or related medical conditions, marital status, or status as a veteran as an unlawful housing practice…
For the first time, the new law applies all of Virginia’s anti-discrimination laws to public accommodations, such as retail stores and restaurants. It is a month of major change for civil rights in the Commonwealth of Virginia.
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.
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 in itself. Unfortunately, there are often uncertain 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 timely 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 before doing so where possible.
Contact Us
If you need 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 Melissa L. Watkins, Esq.
Failing to accommodate an employee based on their religious beliefs can be costly for an employer.
Recently, a hotel dishwasher in Miami was awarded $21.5 million in damages after her employer refused to grant a religious accommodation, requiring that she work on Sundays and eventually terminating her. While the employee will not likely be able to recover this amount due to a cap on punitive damages, the award demonstrates the courts and Equal Employment Opportunity Commission’s (EEOC’s) heightened attention to employers’ obligation to adequately respond to employees’ requests for religious accommodations.
Religious Discrimination and Title VII
Title VII of the U.S. Code protects workers from employment discrimination based on their religion. The law forbids discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, training, benefits and other terms and conditions of employment. Title VII requires reasonable accommodation of an employee’s sincerely held religious beliefs, observances, and practices when requested.
The need for religious accommodation most often arises where an individual’s religious beliefs, observances, or practices conflict with a specific task or requirement of the job or application process. Accommodation requests often relate to work schedules, dress, grooming, or religious expression or practice while at work.
The prohibition on religious discrimination and the requirement for reasonable accommodation apply whether an employee’s religious views are mainstream or non-traditional, and even if the views are not recognized by an organized religion. An employer cannot require that an employee provide documentation from an established religious congregation.
Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation can be shown to be an undue hardship. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. However, customer preferences or even the anticipated loss of business are not considered undue hardships.
How Religious Discrimination Claims are Established
In order to establish a claim of discrimination for an employer’s failure to grant a religious accommodation, employees generally need to show that the following:
(1) he or she has a bona fide religious belief, the practice of which conflicted with their employment
(2) he or she informed the agency/employer of this belief and conflict
(3) the agency/employer nevertheless enforced its requirement against the employee
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.
