Legal Insider

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

Employees in the Commonwealth of Virginia have a number of forums for potentially filing a sexual harassment complaint. First, employees must determine whether the facts in their case constitute sexual harassment. The general definition of sexual harassment, according to the Equal Employment Opportunity Commission (EEOC), is that it includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”

The harassment victim can be either a woman or a man. Additionally, the harassment victim does not have to be of the opposite sex. That being said, sexual harassment does not always have to be of a sexual nature, however, and can include offensive remarks about a person’s gender/sex. Harassing an individual by making offensive comments about his or her gender can constitute sexual harassment. Additionally, when more minor comments or teasing are made on a continuing basis, a hostile work environment based on sexual harassment can arise. Additional EEOC regulations and guidance on sexual harassment can be viewed here.

Harassment Complaints for Federal Employees in Virginia

For federal employees in Virginia, the usual method of filing an Equal Employment Opportunity (EEO) complaint alleging sexual harassment is to go through their federal agency’s EEO office within 45 days of the date of the harassment. This very short deadline can usually be satisfied by initiating contact directly with a federal EEO counselor. Federal agencies will provide contact information for federal EEO complaint counselors to federal employees. The formal complaint process involving the claims of sexual harassment will follow thereafter if the matter is not resolved. There are also other less common routes for filing a federal employee sexual harassment complaint, such as filing a grievance (where permitted, but not usually recommended) and/or a complaint though the Office of Special Counsel (OSC), but these are usually not effective when compared to a federal employee’s options for filing an EEO complaint.

Harassment Complaints for Private Sector Employees in Virginia

For employees who are employed by private companies in Virginia, there are a number of potential options for filing a sexual harassment complaint depending on where they live and the size of their employer. A private sector employee employed by a company with 15 employees or more may file a complaint with the Equal Employment Opportunity Commission (EEOC), which is the most common route for those employed by private companies. The deadline for doing so in Virginia is generally 180 days, which can be extended to 300 days due to a work-sharing agreement between Virginia and the EEOC.

A private sector employee can also usually file a sexual harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees, but less than 15. Additionally, if the matter involves a government contractor, a private sector employee can also file a harassment complaint with the Office of Federal Contract Compliance Programs (OFCCP), but this complaint process is rarely used. Lastly, some counties and municipalities in Virginia have enacted harassment ordinances, such as Fairfax County and Arlington County, which also have procedures for filing complaints against employers. The deadlines for county filings can vary between 180 and 365 days depending on the county. In sum, it is important to figure out the correct forum and to file a claim well in advance of any deadlines.

Harassment Complaints for State Employees of the Commonwealth of Virginia

State employees who are employed by the Commonwealth of Virginia have somewhat different sexual harassment complaint options. These include the possibility of filing a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Opportunity Services (OEES) or the EEOC. The current Executive Order governing state employees was issued in 2014.  State employees should consult with an attorney before deciding which forum is best for their sexual harassment complaint.

Harassment Complaints for County and Local Employees in Virginia

Finally, employees of Virginia’s various counties and municipalities also have options for filing a sexual harassment complaint. They may typically file harassment complaints with the EEOC, or if covered by their county or municipality, a local claim. By far, the majority of county employees take their cases to the EEOC and then to the court, if their matter is not resolved.

Talk to an Attorney to Determine the Best Forum

It is very important to speak with an attorney before choosing a forum in which to file a sexual harassment complaint since the correct forum for filing complaints can vary based on the facts of the claim, location and size of the employer, and nature of the employer.

If you need assistance with filing a sexual harassment complaint, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.

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.

What constitutes hostile work environment is often confusing. Many employees often assume that general bad behavior exhibited by a supervisor or coworker constitutes a hostile work environment claim for purposes of filing an Equal Employment Opportunity (EEO) complaint.

Typically, an EEO complaint based on hostile work environment must involve actions taken as a result of discriminatory behavior. In other words, a hostile work environment involving a supervisor that is petty, obnoxious, mean, or otherwise terrible to work for, without the element of discrimination as the basis for the conduct, is not necessarily an actionable EEO hostile work environment case.

In general, employees can and do suffer from an unpleasant work environment for reasons other than unlawful discrimination. While such conduct is inappropriate and unfortunate, it may not provide a basis for an EEO complaint. In order to show a hostile work environment for the purpose of filing an EEO complaint, employees generally need to show that:

1. The actions taken were discriminatory or harassing against them based on their race, religion, national origin, gender, age, etc.
2. They were subject to harassment (verbal or physical) as a result of the discrimination.
3. The discrimination is pervasive. In other words, it persists over time.
4. The hostile behavior is severe.
5. The employer knew or should have known about the discriminatory behavior.

Here are a few examples of a hostile work environment:

1. An employee, who is an older woman, is subject to constant ridicule in the office by her supervisor for work-related mistakes due to her age. Her supervisor often makes comments that “she should retire.” The employee reports the situation to Human Resources, which does not address the issues, and the supervisor continues his/her harassing behavior.

2. An employee, who is African-American, is subject to repeated offensive racial comments at work by a supervisor in front of other employees. The employee takes the matter to the employer’s president who declines to take action. The supervisor continues his/her discriminatory behavior.

3. An employee, who is female, is consistently asked out on dates by a co-worker even though she has politely declined the requests. The employee then begins to receive notes on her office door from the co-worker with inappropriate remarks. She reports the situation to her manager and Human Resources, which takes no action in the matter, and the harassment continues.

The examples of different types of a hostile work environment are too numerous to cite, but the harassing behavior has to involve discrimination based on race, religion, gender, national origin or other protected categories. Again, if a supervisor or co-worker is hostile, mean or even engages in bizarre behavior, it may not rise to the level of an actionable EEO hostile work environment case.

If you need assistance with an employment law issue in Virginia, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry, Esq.

Effective January 1, 2017, employees in France working for companies with more than 50 employees were given new employment rights, including the ability to negotiate terms with employers about ignoring their work emails outside of normal working hours. The new French law has been referred to as the “right to disconnect” and could trend to other countries, such as the United States.

The goal of the new French law is to stem the tide of after-work emails cutting into the modern problem of compulsive email checking after work. The French have acknowledged that employers who require employees to check and respond to emails after work has lead to insomnia, relationship issues and overall less family time. The goal of the new law is also to reduce after-work stress.

Many individuals have commented in the news about the viability of such a law taking hold in the United States. It is possible to see some changes in the future as the line between work and home life blurs through the increasing use of and advances in technology. The issue has already started to appear in the United States with some workers claiming overtime for responding to emails beyond work hours. Some U.S. companies have already voluntarily instituted “no email” policies after work hours and on weekends. It will be interesting to watch as new policies and laws about after-work emails develop in the future.

If you need assistance with an employment law issues in Virginia, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry, Esq.

Private, federal and other public sector employees in Virginia have a number of options for filing a complaint of discrimination, sexual harassment, retaliation and/or an ongoing hostile work environment. The proper venue for filing the complaint depends on a number of factors, including type of employee, type of discrimination, type of employer and employee’s place of residence. When considering filing a complaint, it is generally wise to consult with an attorney given the complexities in the complaint process.

Federal Employees in Virginia

For federal employees in Virginia, the usual method of filing an Equal Employment Opportunity (EEO) complaint is to go through their federal agency’s EEO office within 45 days of the date of discrimination. This short deadline can usually be accomplished by contacting the relevant federal EEO counselor directly. The formal complaint process will follow later. There are also other, less common, routes for filing a federal employee discrimination/harassment complaint, such as filing a grievance and/or a complaint though the Office of Special Counsel (OSC), but these are usually not effective when compared to a federal employee’s options at the U.S. Equal Employment Opportunity Commission (EEOC).

Private Sector Employees in Virginia

For private sector employees in Virginia, there are a number of potential options for filing a discrimination or harassment complaint depending on where they live and the size of their employer. A private sector employee employed by a company with 15 employees or more may file a complaint with the EEOC, which is the most common complaint process. The deadline for filing a complaint in Virginia is generally 180 days but can be extended to 300 days, because of a work-sharing agreement between Virginia and the EEOC.

In addition, private sector employees can also file a discrimination/harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees, but less than 15 (except for age discrimination claims, when coverage extends to companies that have between 6 to 20 employees). A private sector employee who works for a federal government contractor can also file a complaint with the Office of Federal Contract Compliance Programs (OFCCP), but this complaint process is less commonly used. Lastly, some counties and municipalities in Virginia have enacted discrimination/harassment ordinances such as Fairfax and Arlington, which also have procedures for filing complaints. The deadlines can vary for county filings, between 180 and 365 days, depending on county. In sum, it is important to figure out the correct forum and to file a claim well in advance of any deadlines.

Public Sector Employees in Virginia

State employees in Virginia have somewhat different discrimination/harassment complaint options. These include filing a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Opportunity Services (OEES) or the EEOC. These rules have been in flux given that they were provided by Executive Order, which have not been renewed in the past but are currently in effect.

County and Municipal Employees in Virginia

Finally, county and municipal employees in Virginia have options for filing a discrimination complaint as well. They may generally file discrimination/harassment complaints with the EEOC, or if covered by their county or municipality, a local claim. By far, the majority of county employees take their cases to the EEOC and then to the court system, if the matter is not resolved.

Overall Concerns

It is important to consult with an attorney given the complex nature of the discrimination/harassment complaint process and multiple forums since timelines for filing complaints vary on circumstance, location, size and nature of the employer.

If you need assistance with an employment discrimination issue in Virginia, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

When an individual is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized more thoroughly. For instance, if an individual has been previously approved for a Secret level clearance and is then submitted for a Top Secret (TS) level clearance by his or her employer, the individual could be denied based on the same concerns that existed when he or she was approved for a Secret level clearance. This more often occurs when the individual holds a Top Secret clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.”

Clearance Upgrade Issues

One common problem with security clearance upgrades is when an employer submits an individual’s information to a different security clearance agency or to the same agency for the purpose of upgrading an individual’s security clearance (e.g., from Secret to Top Secret). Sometimes the individual is made aware of the requested upgrade by the employer and sometimes he or she is not. An individual can be approved for a lower level security clearance, but he or she can be denied when submitting for a security clearance upgrade even if there are no new security concerns.

For example, suppose an individual is approved for a Top Secret security clearance by the Department of Defense, after mitigating some security concerns about past due debts or bad credit, but is then submitted for SCI access at an intelligence agency. The intelligence agency may consider those debts more serious than at the previous approval for Top Secret, and then deny the person SCI access approval based on the same financial issues that were first resolved favorably when the individual applied for his or her Top Secret clearance. This denial can potentially have significant consequences.

Result of Unfavorable Upgrade

The result of a clearance upgrade denial might be that the individual, at best, likely has to list the prior denial in future clearance applications, and at worst, could cause the individual to lose (or have to defend) his or her existing security clearance. Depending on the employer and federal agency, there are appeals processes to challenge the clearance upgrade denial, but it is something to seriously consider if there are security concerns in one’s background and a clearance upgrade is proposed.

Conclusion 

It is important to consider the impact of upgrading a security clearance or security access before applying when there are previous security concerns at issue. Individuals should consult with counsel if they have any security concerns at issue. If you need assistance with a security clearance matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By Kimberly Berry

Most employees in Virginia are considered “at will,” which means they can resign and/or be terminated at any time. When employment ends, an employer may offer a severance package to an employee in exchange for the employee’s waiver of rights. However, employers in the absence of an agreement or severance policy, generally have no obligation to provide employees severance pay. If severance pay is offered, an employer will offer the employee a Severance Agreement.

A Severance Agreement is a contract between the employee and an employer that provides the terms of the end of employment between the employer and the employee. Severance Agreements may also be offered to employees who are laid off or facing retirement. In addition, depending on the circumstances, a Severance Agreement may be offered to an employee who resigns or is terminated. The Severance Agreement must have something of value (also referred to as consideration) to which the employee is not already entitled.

Employers are generally required to provide an employee time to consider the Severance Agreement before signing. An employee typically has a 21-day consideration period to accept and at least a 7-day revocation period to revoke an employer’s Severance Agreement if the employee is over 40 years of age. For a group or class of employees (i.e., two or more employees) age 40 or over, employers must provide a 45-day consideration period and at least a 7-day revocation period.

Items and/or terms that the employer and employee may place in these agreements include:

• Financial terms, tax issues and timing of severance payments
• Continuation of employment benefits (i.e. health, etc.)
• Issues related to unemployment compensation
• References
• Claims to be waived (i.e. discrimination, etc.)
• Confidentiality
• Non-Disparagement
• Re-employment possibilities
• Scope of possible non-competition
• Preservation of trade secrets
• Recommendation letters
• Consequences of violating the agreement
• The state law governing the agreement

Severance Agreements will usually include a general release or waiver that requires that the employee cannot sue his or her employer for wrongful termination or attempt to seek unemployment benefits upon the effective date of a fully executed Severance Agreement. Before an employee signs a Severance Agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the Severance Agreement.

If you need assistance with a Severance Agreement or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.

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

The White House recently asked states to enact legislation banning non-compete agreements for low-wage workers in an effort to increase competition and improve the economy. In a White House report issued on October 25, 2016, it explained that these types of agreements often prevent out-of-work employees from finding new jobs in their career fields. The White House also stated that these non-compete agreements interfere with worker mobility.

A non-compete agreement typically bars an employee from working for a competitor or starting his or her own business once the employee leaves the employer.

The White House report cited the fact that 20 percent of U.S. workers have signed non-compete agreements preventing them from working for competitors. The figure included an approximate 17 percent of employees who do not hold a college degree. As such, the White House is requesting that states pass bans on non-compete agreements for workers who do not possess trade secrets. Additionally, the White House is asking that states require companies to be more transparent about contracts.

The three principal recommendations in the White House report on state changes to non-compete agreements include:

1. Enact State Bans on Non-Compete Clauses for Certain Categories of Workers: (1) workers under a certain wage threshold; (2) workers in certain occupations involving public health and safety; (3) workers who are unlikely to possess trade secrets; or (4) those who may suffer undue adverse impacts from non-competes, such as workers laid off or terminated without cause.
2. Improvement in Transparency and Fairness: of non-compete agreements by, for example, disallowing non-competes unless they are proposed before a job offer or significant promotion has been accepted (because an applicant who has accepted an offer and declined other positions may have less bargaining power); providing consideration over and above continued employment for workers who sign non-compete agreements; or encouraging employers to better inform workers about the law in their state and the existence of non-competes in contracts and how they work.
3. Give Incentives to Employers: to write enforceable contracts, and encourage the elimination of unenforceable provisions by, for example, promoting the use of the “red pencil doctrine,” which renders contracts with unenforceable provisions void in their entirety.

These proposed changes are hopefully raising more awareness regarding the issue of arbitrary and meaningless overuse of certain non-compete agreements. Unfortunately, it is not uncommon to see lower wage-earning employees being forced to sign unnecessary and overly restrictive non-compete agreements. However, there have been some positive developments, and three states have already enacted changes to non-compete agreements, including California, Oklahoma and North Dakota.

If you need assistance with a non-compete agreement, or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry, Esq.

What is the Hatch Act?

The Hatch Act of 1939 (Hatch Act), 5 U.S.C. §§ 7321-7326, was enacted by Congress in an attempt to keep politics out of normal government operations. The Hatch Act is a federal law that prohibits civilian federal government employees of the Executive Branch from engaging in certain political activities, such as influencing elections, participating in or managing political campaigns, holding public office or running for office as a member of a political party.

Purpose of the Hatch Act

The Hatch Act was intended to prohibit federal employees from engaging in partisan political activity that might influence normal government activities. Government authorities typically apply the Hatch Act when attempting to curtail political activities by federal employees and supervisors while on duty.

In addition, the Hatch Act can also apply to certain state, local or District of Columbia government employees whose principal employment is connected to an activity that is financed in whole or in part by federal loans or grants. The Hatch Act was amended through the Hatch Act Modernization Act of 2012 (HAMA) to permit other state and local employees, even if they are otherwise covered by Hatch Act restrictions, to be generally free under federal law to run for partisan political office unless the employee’s salary is paid completely by federal loans or grants. HAMA was signed into law in December 2012. The most recent changes to the law are outlined in the OSC guidance on HAMA.

Who Enforces the Hatch Act?

The Office of Special Counsel (OSC) is typically the entity charged with investigating Hatch Act violations. First, a Hatch Act complaint is filed at the OSC. If a Hatch Act violation is found, but not egregious enough to warrant prosecution, the OSC may issue a letter of warning to the involved employee. If the OSC charges an employee with a Hatch Act violation, the charges are filed with and adjudicated before the Merit Systems Protection Board (MSPB). In addition, after investigating an alleged Hatch Act violation, the OSC may seek disciplinary action against an employee before the MSPB. The penalties for federal government employees can include removal from federal service, reduction in grade, debarment from federal employment for a period not to exceed five years, suspension, reprimand or a civil penalty not to exceed $1,000.

Our law firm represents and defends federal employees who are faced with alleged Hatch Act violations, require Hatch Act guidance or legal defense, or are subjected to illegal political discrimination in the federal workplace. If you need assistance with an alleged Hatch Act violation, political discrimination, or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry, Esq.

We often represent federal employees in federal agency misconduct investigations. The types of misconduct that a federal agency can investigate are too numerous to list here, but some of the most common types of misconduct involve:

• Time card and attendance issues
• Misuse of government computer and internet
• Misuse of government credit card, vehicle or travel card
• Allegations of discrimination or harassment
• Alleged dishonesty or lack of candor
• Allegations of off-duty criminal or traffic conduct
• Inappropriate promotions and selections cases

The Investigation Process

The usual process for a federal employee misconduct investigation begins when a federal employee is notified that an investigator needs to speak with the employee. The alleged misconduct can be investigated by several types of investigators. The investigator can be a supervisor, someone from human resources, an agency investigator, an Inspector General agent, or another type of agency official or representative. There is usually short notice for the investigation and the investigator generally will want to conduct the interview fairly soon. Furthermore, the federal employee is usually never provided an explanation of his or her rights.

In many, if not most cases, the interviewer immediately starts asking questions and expects answers to his or her questions without providing a statement of rights. In some cases, the interviewer may ask that the federal employee sign a statement agreeing to be voluntarily interviewed (often referred to as a Garrity warning) and waiving all of the employee’s rights. In other cases, the federal employee may be asked to sign a Kalkines warning requiring that the employee acknowledge that he or she is being ordered to speak to investigators under penalty of disciplinary action.

While circumstances vary, it is usually preferable for a federal employee to be ordered to provide a statement as some protections may attach, versus providing a voluntary statement where there are no protections. Federal agencies generally prefer that voluntary statements be given. In cases where a federal employee is not ordered to provide a statement, but voluntarily provides one, no protections to the employee’s statement usually apply. As a result, it is important and wise for the federal employee involved in a misconduct investigation to have legal counsel to advise the employee prior to the interview.

The Investigation Format

Generally, the most common scenario for a federal employee misconduct investigation involves the federal employee being interviewed by one or, more often, two investigators. The duration of these types of investigations vary depending on the issues under review, but generally last between one and three hours. However, we have represented federal employees during longer interviews. Following the interview, many investigators summarize the employee statement and attempt to have the employee sign it for the record.

It is important to ensure that the investigator does not insert his or her own version or characterization of the employee’s verbal statement into a final and inaccurate written statement signed by the employee. All too often a federal employee makes a statement to an investigator that is taken out of context in the written summation, which is then signed by the employee.

How to Handle the Investigation

It is very important for federal employees to treat any misconduct investigation seriously. It is also important to seek advice early because doing so can help prevent or mitigate potential subsequent disciplinary action. Furthermore, it can often help when an investigator knows that you are represented by legal counsel. In our experience, investigators tend to follow the rules regarding investigations more closely when an individual is represented by legal counsel. Additionally, should the issues involved turn potentially criminal in nature it is important to be represented before making statements about conduct which can lead to criminal issues.

If you need assistance with an employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By Kimberly H. Berry, Esq.

We are seeing the start of what may be a nationwide trend after Massachusetts recently became the first state to ban employers from asking job applicants about their salaries during the job interview process.

The bipartisan legislation that was signed into law in early August requires an employer to state a position’s compensation upfront based on what the job applicant is worth to the employer as opposed to what the job applicant made in his or her previous employment position.

Now other legislators are working at the Congressional level, as well as at the state level, to use this law as a model to create similar legislation. On September 14, 2016, a bill was introduced in Congress by Washington, D.C. Representative Eleanor Homes Norton and Democratic Representatives Rosa DeLauro from Connecticut and Jerrold Nadler from New York. Under the Pay Equity for All Act of 2016 (H.R. 6030), an employer could be subject to a fine of up to $10,000 if it asks questions about an applicant’s salary history. Employers could also be liable to employees or prospective employees for special damages up to $10,000, in addition to attorneys’ fees.

There has already been an effort, although not entirely successful, to strengthen equal pay laws. However, there is hope that a bill prohibiting employers from asking about salary history before making a job offer will help to eliminate the wage gap that women and people of color often encounter. A news release announcing the bill indicated that while many employers may not intend to discriminate based on gender, race, or ethnicity, asking for previous salary information prior to offering employment to a job applicant can have a discriminatory effect in the workplace. Holmes Norton’s office also indicated: “Because many employers set wages based on an applicant’s previous salary, workers from historically disadvantaged groups often start out behind their white male counterparts in salary negotiations and never catch up.” Other states have created or are creating similar legislation, such as New York and California.

There is a prevailing belief that many factors should be considered when establishing a salary for a certain employment position, such as position duties and responsibilities, past experience, educational requirements, industry and market standards and practice. As such, this bill and other similar efforts aim to eliminate the wage gap and discrimination that may intentionally or unintentionally exist when an applicant’s previous salary is the sole or main method for establishing that applicant’s starting compensation.

If you need assistance with an employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John Berry

There are usually two parts to a security clearance case: (1) responding to the security concerns at issue (individual disqualifying and mitigating factors) and (2) overall mitigation. Overall mitigation is most often used when the security issues are true or partially true, but they should not bar an individual from the ability to retain or obtain a security clearance. Overall mitigation is usually referred to as the Whole-Person Concept for security clearance matters. This evaluation focuses on whether the individual, even with security concerns, is an acceptable security risk. 

Under the Whole-Person Concept, an adjudicator will evaluate an individual’s eligibility for a security clearance by considering the “totality” of his or her conduct and all relevant circumstances. There are nine factors that are reviewed based on the Department of Defense (DoD) Adjudicative Guidelines:

1. the nature, extent, and seriousness of the conduct;
2. the circumstances surrounding the conduct, to include knowledgeable participation;
3. the frequency and recency of the conduct;
4. the individual’s age and maturity at the time of the conduct;
5. the extent to which participation is voluntary;
6. the presence or absence of rehabilitation and other permanent behavioral changes;
7. the motivation for the conduct;
8. the potential for pressure, coercion, exploitation, or duress; and
9. the likelihood of continuation or recurrence.

Under these Adjudicative Guidelines, the final determination of whether to grant eligibility for a security clearance is “an overall commonsense judgment” based on both the merits of the security issues and a review of the Whole-Person Concept. While only nine factors are mentioned here, other factors are also considered. We find that the Whole-Person Concept is often best used to describe the individual’s character, positive work history and record, community involvement and other factors that help to show that the individual’s record merits a commonsense judgment for keeping or retaining his or her security clearance. Many of these individualized issues fall under Factor 9. 

For example, an individual holds a Top Secret security clearance and has been convicted of driving under the influence of alcohol. As a result, security concerns are raised and the individual’s security clearance is at risk. In addition to addressing the issues involving the driving under the influence charge, the person would want to present evidence of good character (e.g., letters from supervisors, friends, and family), good or outstanding performance at work, and/or community/charity involvement. 

Generally, we find that clearance holders are not provided information about how to use the Whole-Person Concept to help them rebut security clearance concerns. Each case is different, but in many cases an individual seeking to retain or obtain a security clearance must go through his or her positive record in life, the community and at work in order to help mitigate security issues that arise. 

We represent individuals in security clearance matters. If you need assistance with a security clearance matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.