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 Berry

As noted in our earlier article, financial issues are the most common issues that can result in the loss of, or inability to obtain, a security clearance. In security clearance cases, financial issues are generally referred to as Guideline F cases. In Guideline F cases, the government’s concern is generally how a person has handled his or her finances and/or his or her vulnerability to financial manipulation given a pattern of overspending or debt.

The following are some quick tips to help minimize the risk of losing a security clearance involving financial considerations:

1. Pay your bills.  Most security clearance clients seek our assistance when they have multiple debts that are past due, delinquent, in collections, or have been charged off. In Guideline F cases, the existence of multiple, unpaid debts is the most typical reason for the loss or denial of a security clearance.
2. Pay/File your taxes. Individuals in tax trouble or who fail to pay and/or file their taxes risk losing their clearance. These tax issues tend to be viewed as more significant for security clearance purposes than regular debts. If outstanding taxes or tax liens are too much for the individual to pay off all at once, it is important to try to work out a plan with the IRS or state tax agency and show good faith towards resolving these debts in order to keep or obtain a security clearance.
3. Clear up/monitor your credit report. Often times, an individual has encountered difficulties in the security clearance process because incorrect information is listed on his or her credit reports. In our experience, errors can be common, but can also lead to security clearance issues. It is important for an individual applying for or holding a security clearance to keep a close eye on his or her credit report for errors and potential problems.
4. Do not run up significant debts or live beyond your means.  Having too many debts can put an individual at risk of losing a security clearance. To the government, this can indicate that the individual is living beyond his or her means.
5. Work with creditors to attempt to resolve the debt.  It is always better for an individual to get ahead of his or her credit problems than to wait until he or she receives notice of a possible denial of a security clearance. An individual who recognizes a debt problem and works towards resolving it early and before a clearance issue is raised tends to be given more credit towards the granting of the clearance as opposed to an individual who starts the process after he or she receives notice of the potential loss of the clearance.
6. Consider credit counseling/classes. If an individual falls behind in his or her debts, it is still important to show how that individual is working to get back on a healthy financial track in order to alleviate concerns about the individual’s ability to hold a security clearance.  Taking meaningful credit classes or engaging in credit counseling can help mitigate security concerns by showing affirmative steps taken by an individual to get better control over his or her finances.

We represent individuals in security clearance and other employment matters. If you need assistance with a security clearance issue, please contact our office at (703) 668-0070 or at http://www.berrylegal.com/practices/Security_Clearance/ 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

An interesting topic in Virginia employment law is an employee’s right to privacy in the workplace. While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and courts.

In general, for a number of reasons we recommend that employees avoid using employer technology to conduct their personal business. Virginia employers have been given a fair amount of leeway under existing laws to monitor employees in the workplace. One of the biggest concerns that we run across in representing employees in wrongful termination cases involves an employee’s use or alleged misuse of an employer’s email, computers or Internet. Frequently, one of the first actions taken by an employer following a contentious termination is its examination of a former employee’s computer or prior Internet usage. The usual result is that the employer often claims that the former employee was conducting personal business or misusing the employer’s network. An employer may then claim that the employee violated Virginia’s Computer Trespass law.

Email and Internet Monitoring of Employees

Employers that monitor employee email or Internet use should obtain legal advice ahead of time to avoid the risk of running afoul of criminal and other statutes. That said, an employer in Virginia typically has the ability to monitor emails and Internet usage on their own networks. Employers should warn employees about monitoring in advance. We usually advise employees that they should expect that their work email account may be monitored and should not be used for personal business even if they have not been so informed. Employers also need to be careful to avoid accessing employee private, non-work email accounts to which they may have access. For example, an employer should avoid attempting to inappropriately log into a former employee’s private email account that remains accessible from the employee’s former computer. Virginia also has enacted the Virginia Computer Invasion of Privacy Law. If an employer does something egregious in the course of monitoring email or Internet usage, then it could be subject to a potential claim under this law or perhaps a tort (personal injury) claim.

Telephone and Voice Mail Monitoring of Employees

Some employers monitor work-related employee telephone calls. A Virginia employer who wants to monitor telephone calls of an employee or voice mail messages must usually warn the employee in advance and the monitoring must be done in the scope of normal business. This is often accomplished by the employer at the beginning of employment, through policies listed in an employment contract or handbook. There are many pitfalls in monitoring telephone calls and voice mails of employees and this ideally should be done after receiving legal advice given that potential criminal issues could result if done incorrectly under both federal and Virginia wiretapping laws.

Security Camera Monitoring of Employees

With the widespread use and availability of small wireless cameras, some employers have attempted to monitor their employees in this manner. The courts have generally upheld an employer’s right to monitor its employees with security cameras so long as the monitoring is not particularly invasive. This has not yet been subject of major litigation in Virginia but is no doubt forthcoming. In other jurisdictions, some courts have upheld employee privacy rights in situations where camera monitoring of employees has been very invasive such as with cameras in locker rooms or bathrooms. Many courts have permitted the use of such camera monitoring to the extent that employees are aware of it and can see the cameras, and that it is not misused.

Finally, Virginia does not yet recognize the traditional claim of invasion of privacy, which could help in employee rights claims when an employer goes too far. However, serious breaches of employee privacy can result in other types of tort claims for intentional infliction of emotional distress. Virginia case law and national trends continue to change and more employment rights and the ability to sue for egregious privacy violations are likely to develop in the future.

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

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

On May 12, 2016, Director of National Intelligence James Clapper issued the first policy on the federal government’s use of social media when evaluating background investigations and security clearances for federal employees and contractors.

Security Executive Agent Directive 5 does not require that security clearance decisions necessarily consider social media information, but instead permits the collection of “publicly” available social media information if an agency official determines it to be a useful tool for security clearance investigations. It is extremely likely that most, if not all, agency officials will find such information to be a necessary tool for security clearance investigations in the future given how significant social media has become in our society.

While the new policy does not require the collection of non-publicly available social media information, it is possible that such information could be required in future policies governing security clearance investigations, especially for individuals with top secret clearances. For now, however, security clearance investigators can only review publicly available social media information under the new policy. Information that is protected by appropriate privacy settings will not be reviewed by security clearance investigators.

Furthermore, unless there is a national security concern or criminal reporting requirement, information uncovered as a result of a review of an applicant’s publicly available social media information that involves other individuals or groups will not be pursued.

Security clearance investigators are also restricted from requesting or requiring individuals to provide their social media passwords or requiring individuals to log on to their private social media accounts to disclose non-publicly available information. The new policy also bars security clearance investigators or agencies from creating or using social media accounts to “Friend” or “Follow” the individual who is under investigation. We represent individuals in security clearance matters. If you need assistance with a federal retirement or an employment issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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

On May 18, 2016, the Department of Labor (DOL) issued a final rule making millions of middle-class workers eligible for overtime pay for the first time. The new DOL rule, which was last updated more than 10 years ago, is set to go into effect on December 1, 2016. A lot of things have changed in the time since the last revisions with respect to wages and inflation. By far, the most significant change in the new regulation is that the DOL has doubled the annual salary threshold that determines overtime pay eligibility.

Prior to the new rule, workers who earned more than $23,660 a year were not eligible for overtime pay, which is time and one-half of a worker’s regular hourly rate of pay, if they worked beyond 40 hours in a workweek and performed certain executive, professional, or administrative duties. The new DOL rule leaves the existing duties test in place but increases the annual salary threshold to $47,476. It is estimated that the new regulation will extend overtime pay to over four million workers around the country by next year.

In addition, the new annual salary threshold of $47,476 is expected to rise to more than $51,000, based on wage growth, when the first scheduled update occurs on January 1, 2020. The DOL plans to automatically increase the annual salary threshold every three years after implementation. The move by DOL has received significant press coverage and many employers are working toward implementing the new rule. Eligible workers will likely be provided more information from their employers before the new rule goes into effect.

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

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

Trade secrets are generally valuable information that could give a company an economic edge over its competitors and that are not easily attainable by others outside of the company. President Obama signed into law on May 11, 2016, a bipartisan bill that combats theft of trade secrets that were previously not protected under federal law.

The Defend Trade Secrets Act of 2016 (DTSA) will have an effect on employers and employees in all state and federal jurisdictions. Before the law passed, employers and employees had to navigate different state laws regarding issues involving the misappropriation of trade secrets. These state laws varied, which made it difficult for companies to construct consistent policies regarding their trade secrets. While the DTSA does not completely eliminate the different state laws, it provides for consistency in trade secret cases.

The law itself appears to be a compromise giving employers greater protections against employees taking trade secrets and also providing employees greater rights when issues of whistleblower protection arise. In general, employers with trade secrets who file lawsuits under the new law will be entitled to recover damages for their losses, in addition to preventing competitors from making use of wrongfully obtained information covered under the law. Employees will be able to disclose illegal conduct by an employer, if procedures are filed, without being subject to civil and/or criminal actions.

While the new law has several provisions and some complexities, here is a summary of the main new provisions in the DTSA:

1. For Employers – Civil Seizures: An employer, under certain circumstances, can now go into federal court and obtain an emergency order to prevent the dissemination of trade secrets. One situation might involve an employee who has left an employer and took materials, such as client lists, product designs, etc., that he or she could use at his or her new employment in a different state. The law indicates that getting a seizure order is set at a high bar. This provides a new tool for employers whose trade secrets are at immediate risk.

2. For Employees – Whistleblower Immunity: The new law protects employee whistleblowers who disclose alleged trade secrets to government entities. This portion of the new law is in response to concerns that non-disclosure obligations in employment contracts and the threat of civil actions by employers against employees created an impediment to employees from reporting evidence of criminal misconduct by employers to federal, state, or local government officials. The DTSA now permits employee disclosures of trade secrets made in confidence to an attorney and to government entities for the purpose of reporting or investigating a suspected violation of law or in a filing in a sealed lawsuit.

The DTSA is likely to lead to additional litigation in the federal courts over trade secret and whistleblower issues and provides additional remedies for employees and employers. An explanation and report about the new DTSA can be found here. Employees and employers should obtain legal advice before attempting to make use of the new law since each case and application of the new law can vary.

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

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

The federal government uses 13 adjudicative guidelines to determine whether federal employees and contractors should be eligible for a security clearance to gain or maintain access to classified information. These guidelines include:

• Guideline A: Allegiance to the United States
• Guideline B: Foreign Influence
• Guideline C: Foreign Preference
• Guideline D: Sexual Behavior
• Guideline E: Personal Conduct
• Guideline F: Financial Considerations
• Guideline G: Alcohol Consumption
• Guideline H: Drug Involvement
• Guideline I: Psychological Conditions
• Guideline J: Criminal Conduct
• Guideline K: Handling Protected Information
• Guideline L: Outside Activities
• Guideline M: Use of Information Technology Systems

Based on the 42 decisions issued by the Department of Defense (DoD), Defense Office of Hearings and Appeals (DOHA) since January 1, 2016, by far the most common reason why a security clearance is denied is based on Guideline F. Financial consideration issues usually arise when an applicant for a security clearance has too many outstanding or delinquent debts, is facing bankruptcy, has credit report problems, or has unaddressed tax liens.

The second most common reason why a security clearance is denied is based on Guideline E. Personal conduct issues can involve a broad range of misconduct, such as information regarding an individual’s prior termination, arrest, or domestic incident, lying on security clearance forms, or basically any other types of general wrongdoing, criminal, or otherwise.

The third most common reason why a security clearance is denied is based on Guideline H. Drug involvement or abuse is considered to be the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction (e.g., overuse of prescription pain medication).

Although the 42 security clearance decisions issued by DOHA since January 1, 2016, involved 26 cases based solely on Guideline F, 16 cases were based on one or more of the following adjudicative guidelines:

• Guideline F: Financial Considerations (34)
• Guideline E: Personal Conduct (11)
• Guideline H: Drug Involvement (6)
• Guideline J: Criminal Conduct (2)
• Guideline B: Foreign Influence (1)
• Guideline G: Alcohol Consumption (1)

It is important to note that the reported DOHA decisions generally cover security clearance appeals from DoD contractor employees, but the decisions provide good insight into common reasons why the federal government denies security clearances.

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

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

By John Berry

Federal employees are usually told that a Performance Improvement Plan (PIP) is only designed to benefit them and make them better performers. This, unfortunately, is usually not the case.

Managers often promise employees that they will be given special assistance to ensure they are successful during their PIP, only to later find themselves facing termination a few months later when they have not received any of the promised assistance during the PIP process. For this reason, it is crucial that federal employees on PIPs, or those who have just received a poor performance evaluation, be on guard.

Promised Opportunity to Improve

PIP procedures were enacted by Congress and require federal agencies to provide employees with an opportunity to improve prior to taking performance-based actions. The federal statutes, regulations, and case law dealing with the PIP process emphasize the importance of providing an employee with a meaningful opportunity to improve, as a PIP is meant to assist employees in achieving performance goals.

As part of the meaningful opportunity to improve, an employee generally must receive the assistance promised by the agency at the onset of the PIP period. Moreover, a supervisor’s negative actions toward an employee during or after the performance of his or her PIP period may constitute a violation of PIP procedures.

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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 Kimberly H. Berry

There are a number of circumstances that may cause the U.S. Office of Personnel Management (OPM) to end a federal employee’s disability retirement.

The three most common reasons why OPM would rescind federal disability retirement benefits include:

1. Restoration to Earning Capacity: Until a federal disability retiree reaches the age of 60, he or she will typically be given a survey by OPM about the disability retiree’s annual income in the previous year. OPM may consider a disability retiree restored to earning capacity if the individual’s earnings from wages and/or self-employment in any calendar year while a disability annuitant reaches or exceeds 80 percent of the current rate of basic pay of the position the individual occupied immediately prior to retirement. If the disability retiree’s income reached the 80 percent earnings limit in any such calendar year, OPM will usually write (although sometimes belatedly) and inform the disability retiree that his or her disability annuity will terminate.

2. OPM Deems an Individual Recovered: OPM may contact a disability retiree and ask the retiree to provide a current medical report from a physician regarding the status of the medical condition that was the basis for disability retirement. A disability retiree can also be asked by OPM about his or her current employment status and other relevant activities. If this information shows a recovery, then the disability retirement annuity may cease. If a disability retiree does not respond to the request by OPM, his or her disability annuity payments may also be suspended.

3. Re-employment in the Federal Government: If a disability retirement annuitant is re-employed in the federal sector, his or her disability retirement annuity amount may change or terminate.

If OPM suspends or terminates an individual’s disability retirement annuity, the disability retiree can contest OPM’s determination and/or move to have his or her disability annuity restored depending on the situation. For example, if a disability retiree is restored to his or her earning capacity but then later drops below the 80% threshold, the disability retirement annuity can be restored. Other examples include situations involving medically recovered individuals who experience later recurrences of the disability.

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

The views and opinions expressed in this sponsored column are those of the author and do not necessarily reflect the views of ARLnow.com.