Berry&Berry2

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

By John V. Berry, Esq.

A reasonable accommodation is a modification to employment conditions or work practices that provides employees with disabilities equal opportunity at employment. Reasonable accommodations apply to both employees and job applicants in all states and the District of Columbia. Most employees are generally covered under the Americans with Disabilities Act (ADA), but federal employees are covered under a similar law known as the Rehabilitation Act. In Virginia, employees are also covered under the Virginians with Disabilities Act. The Equal Employment Opportunity Commission (EEOC) and other civil rights governmental entities enforce these laws.

Requesting a Reasonable Accommodation

A request for reasonable accommodation can be formal or informal. Some employers have specific forms covering reasonable accommodation requests and others simply involve verbal discussions between the employee and his/her immediate supervisor or human resources department. The most typical accommodation involves an employee who has developed a medical condition or disability that requires some changes to his/her working arrangement.

The discussion between an employer and employee is often referred to as the “interactive process,” which means that the employer works with the employee in an effort to arrive at a reasonable accommodation that does not create an undue hardship on the employer. Although the employer is not required to grant every accommodation request, the employer is required to make a reasonable effort at resolving the accommodation at issue.

Examples of Reasonable Accommodations

  • An employee develops a back disability and requests a new chair because his current chair is aggravating his back condition.
  • An employee has developed a serious medical condition and is undergoing medical treatment in the morning. She informs her supervisor that she needs an adjustment in her start time for eight weeks while she undergoes treatment.
  • An employee develops cancer and requests daily breaks at a certain time to take his medication.
  • An employee develops a disability that prevents her from performing her assigned duties so she requests a position reassignment.

For more information, the EEOC has published additional guidance on reasonable accommodations.

We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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.


Berry&Berry2

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

By John V. Berry, Esq.

On Nov. 2, 2015, President Obama announced the first step to provide individuals with former criminal convictions with a meaningful opportunity to apply for federal employment. Applicants were previously required to check a “Yes” or “No” box to indicate whether they have ever had a felony criminal conviction. Not surprisingly, this check box has made it very difficult for an individual with a prior criminal conviction that is even decades old to have a chance to compete for a federal employment position. One New York City study cited by the National Institute of Justice indicated that individuals with former criminal records had a 50 percent less chance than the average individual of receiving a job offer.

While additional action is needed by Congress to provide stronger protections, the President has directed the Office of Personnel Management (OPM) to modify the rules for federal employment purposes that would effectively delay criminal history inquiries until later in the federal hiring process in order to provide a chance for an individual to be evaluated on his or her merits before having to respond to any questions about former convictions.

This action by President Obama is an important first step. There is a significant and mostly bipartisan “Ban the Box” movement across the country to enable individuals with former felony convictions to withhold disclosure of such convictions when applying for new federal positions. Members of both major political parties have supported these reforms. So far over 100 cities and counties and 19 states have already enacted such reforms. Therefore, it is perhaps an opportune and welcome time for President Obama and Congress to work together to help resolve this problem since individuals with criminal convictions who are starting to rebuild their lives still continue to remain the target of discrimination during the employment hiring process.

We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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.


Berry&Berry2

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

By John V. Berry, Esq.

Being terminated from employment can be very devastating, especially when it is completely unexpected. Most often, employees allow their emotions to get the best of them and become angry upon receiving notice of termination from their employer. However, it is very important for employees to try to handle a termination the right way. Here are five tips to consider if you are being terminated:

  1. Handle Termination Day with Grace: This is by far the most important tip and usually one of the most difficult to do. Individuals who cannot keep their emotions in check often end up in a much worse situation than those who gather their belongings and leave quietly. For example, if an individual makes a scene when they are terminated, the employer may exaggerate the situation and call the police. Furthermore, leaving in a pleasant manner makes it much easier to settle a wrongful termination case with the employer later. By doing so, it also reduces the possibility that the employer will challenge the former employee’s attempt to obtain unemployment compensation or cause a problem if the former employee later applies for a security clearance or another employment position.
  1. Dont Take Employer Materials: Individuals should be very careful not to take proprietary employer materials, physical items, or other types of employer documents or digital materials without permission when leaving employment. As a defense, an employer can claim that the former employee stole materials or proprietary data if the former employee later files a wrongful termination claim.
  1. Dont Sign Agreements Presented on Termination Date: Employers will often try to limit their liability by presenting agreements to employees they are terminating. Such agreements might offer a week’s pay in exchange for extinguishing all of the employee’s rights. Given the emotional trauma of being terminated, individuals should never sign a binding agreement as they are being terminated. Before signing such an agreement, it is very important to have an attorney review it. Once such an agreement has been signed, it is very difficult to take any type of legal action later.
  1. Consult With an Attorney if Wrongful Termination Issues Arise: Not all terminations are wrongful. However, if an individual believes that he or she was wrongfully or illegally terminated and is concerned with his or rights, he or she should seek legal advice from an employment attorney in a timely manner since many employment rights are time sensitive.
  1. Find a Reference: If a former supervisor will not serve as a reference, try to seek others, such as former supervisors or coworkers, who no longer work for the former employer. Having employment references will vastly improve one’s chances of quickly obtaining new employment. Even if an individual has been terminated, having someone available who can speak to his or her work ability can help mitigate the damage of the termination.

It may seem like the end of the world when one is terminated, but in the vast majority of employment cases that we see individuals bounce back and obtain new employment relatively soon. Many of our former clients contact us a year or so after being terminated and tell us that they are in a better place of employment and are much happier. The odds of this happening will increase when a termination is handled with grace.

We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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.


Berry&Berry2

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

By John V. Berry, Esq.

Depending upon the security concerns involved, it can be extremely helpful when federal employees or contractors facing security clearance issues have support from a medical professional. In security clearance matters, it is usually very beneficial and important for our federal employee and contractor clients to consult with a medical professional if appropriate and when medical or medical-related security concerns are under review by clearance authorities.

Types of security concerns that could involve medical professionals

Depending upon the facts of the security clearance case, there are a variety of security concerns for which a seasoned medical professional may be helpful to a security clearance applicant or holder. One of the most common types of security clearance cases in which a medical professional may be helpful involves the psychological or mental health condition of the security clearance applicant or holder. Medical professionals may also be of assistance when a security clearance applicant or holder has security concerns involving illegal prescription drug use and/or an alcohol-related traffic matter.

Use of medical professionals in security clearance matters

When an individual’s security clearance is at issue, it can be very helpful to obtain a medical professional’s review of the underlying issues for use in mitigating the security concern. When such situations arise, whether the matter is before the Department of Defense (DoD), Consolidated Adjudication Facility (CAF) (for DOD clearance holders) or any of the other clearance adjudication agencies (Federal Bureau of Investigation, National Reconnaissance Office, Department of State, Department of Energy, etc.), the clearance authority will ask whether there are mitigating factors present regarding the security concerns at issue. Clearance authorities will often take reasoned medical opinions into account when considering whether or not to permit an individual to obtain or retain his or her security clearance. When this occurs, it can be important to have a medical professional’s opinion, especially if a regular physician is not available to meet with the individual to attempt to mitigate the security concerns at issue.

The following examples more clearly demonstrate when a medical professional can be of help to a security clearance applicant or holder:

Example A: The clearance holder has had two arrests for driving while intoxicated over the past four years. In this situation, it is important to have a medical professional evaluate, counsel, and respond to the types of security concerns involved. The medical professional can often outline all of the treatment options available to the clearance holder, and analyze the efforts undertaken by the clearance holder to address any alcohol-related concerns or treatment. A seasoned medical professional can also render a medical opinion as to whether or not such issues are likely to reoccur and the best way the clearance holder can avoid such issues in the future.

Example B: The clearance holder has a significant mental health disorder and a clearance authority needs to determine whether the medical condition would affect the individual’s ability to hold access to classified information. In this situation, it is important and helpful if a medical professional can provide a reasoned medical opinion as to whether the mental health condition will be an impediment to retaining a security clearance. The medical professional can evaluate the individual’s medical history, treatment undertaken for the medical issues, and issue an opinion as to how the medical condition will likely affect the clearance holder in the future.

Additional thoughts and reference on the use of medical professionals

Medical professionals are often asked to complete security clearance forms for clearance applicants and holders. They are also often asked to meet with clearance investigators and discuss the individual’s medical condition. In many security clearance cases, medical professionals also provide detailed medical evaluations and even testify during security clearance administrative hearings. The effective use of a medical professional in appropriate cases can significantly impact whether or not the individual retains, is granted, or loses his or her security clearance. An informative article on the role of the psychiatrist in the security clearance process, The Psychiatrist in the Security Clearance Process, was written by Dr. Brian Crowley and is published at page 11 in the Washington Psychiatrist.

We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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.


Berry&Berry2

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

By Kimberly Berry

On September 7, 2015, President Obama signed an executive order establishing paid sick leave for federal contractors and subcontractors. The order is an attempt to promote economy and increase efficiency and cost savings in the work performed by employees who contract with the federal government. Federal contractors and subcontractors can earn up to seven days or more of paid sick leave annually, including paid leave allowing for family care. The order does not supersede any federal, state or local laws, and collective bargaining agreements that provide better benefits.

Pursuant to the order, paid leave can be used for illness, injury or medical condition; obtaining medical diagnosis or care, including preventative care, from a health care provider; caring for a child, parent, spouse, domestic partner, or any other blood relative or closely-associated equivalent of a family relation; and for domestic violence, sexual assault, or stalking.

Employees will be permitted to carry over unused leave from one year to the next. Unused leave will be reinstated for employees rehired within 12 months post-separation by a covered federal contractor or subcontractor. However, employees must request paid sick leave orally or in writing at least seven calendar days in advance of when the need for leave is foreseeable, and in other cases as soon as is practicable. Health care certification or documentation, required no later than 30 days from the first day of leave, is only required if the employee is absent for three or more consecutive workdays.

This is the latest action taken by President Obama in a series of administrative actions aimed at providing benefits to employees. By September 30, 2016, the Secretary of Labor will issue regulations to implement the order. However, it is important that federal contractors and subcontractors note that once the order becomes effective on January 1, 2017, executive departments and agencies will require that new government contracts, contract-like instruments, and solicitations, including lower-tier subcontracts, include a provision specifying that all employees in the performance of the contract or any subcontract thereunder shall earn not less than one hour of paid sick leave for every 30 hours worked. If the federal contractor or subcontractor already maintains a sick leave benefits policy that includes the same or greater paid sick leave benefits, the existing policy will satisfy the order’s requirements.

We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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.


Berry&Berry2

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

By John Berry

On June 16, 2015, the California Labor Commission ruled in Uber v. Berwick that an Uber driver was an employee and not an independent contractor. There have been a number of new concerns for employers and independent contractors alike since the California Labor Commission issued this decision. One of the most important aspects of the Uber decision is not its direct applicability to independent contractors in Virginia, but rather the direction that these types of classification decisions are headed. Specifically, there is a clear trend towards governmental agencies finding that independent contractors have been misclassified and are actually employees. When this kind of misclassification occurs, it becomes costly for employers and causes confusion for employees.

The Costs of Misclassifying Employees as Independent Contractors

The major differences between an independent contractor and employee of a company largely involve taxes and benefits. Employees pay less taxes and receive more benefits than independent contractors. If an employer classifies an individual as an independent contractor, the employer does not need to pay benefits to the contractor and saves on taxes because the employer does not pay its portion of Social Security, Medicare or state unemployment taxes. However, if an employer incorrectly classifies an employee as an independent contractor and the employer is audited or sued, there can be serious consequences for the employer. In particular, an employer found to have misclassified an individual as an independent contractor can be held liable for back taxes, tax penalties, benefits and wages (e.g. overtime).

The Uber Decision

While the Uber decision is being appealed, it is important to understand why the California Labor Commission ruled that the Uber driver was an employee and not an independent contractor. The Uber decision focuses on a number of issues. In particular, the case analyzed the degree of control that Uber had over the individual driver. Some of the factors considered in the case included: (1) drivers’ cars had to be less than 10 years old; (2) drivers had to pass background and state department of motor vehicle checks in order to drive; (3) individual drivers’ cars were required to be registered with Uber; (4) Uber determined the price for each trip with customers; (5) Uber drivers received a non-negotiable fee for each drive; and (6) a driver’s approval score, as determined by passengers, could not fall below an Uber-established level. In consideration of these factors and the amount of control the Uber employer had over its independent contractor drivers, the California Labor Commission determined that an Uber driver was an employee during the driver’s employment with Uber.

Virginia and National Trends

The trend we are noticing in Virginia and nationwide is that more enforcement mechanisms are being established to ensure that independent contractors are properly classified as employees when the factors under consideration are debatable or questionable. For instance, in June 2015, the Commissioner for the Virginia Department of Labor and Industry announced a new policy of strict enforcement for the misclassification of employees as independent contractors. In July 2014, Virginia raised the civil penalties for misclassifying an employee as an independent contractor under the Virginia Workers Compensation Act. Under the Act, Virginia can impose civil penalties of up to $250 a day for each day (up to a penalty of $50,000) that an employer has failed to insure a worker who should have been insured. In sum, if an employee has been misclassified in Virginia as an independent contractor, it may eventually and will likely result in significant costs for the employer.

We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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.


Berry&Berry2

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

By Kimberly H. Berry, Esq.

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

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

OPM’s Standard Form 3112C and instructions do not actually provide much detail as to what specifically should be included in the physician’s statement. However, based on our experience, it is crucial that the physician provide a great deal of detailed medical documentation in the statement. The best type of physician’s statement further addresses the federal employee’s specific medical conditions and symptoms, and how they prevent the federal employee from performing his or her job duties as described in the federal employee’s position description. The federal employee should provide the physician with a copy or summary of his or her official and actual job duties. Keep in mind that OPM is not necessarily focused on whether the federal employee is fully disabled from completing a particular type of work. OPM is more interested in detailed medical evidence establishing how the federal employee is disabled in such a way that prevents the employee from performing his or her current job duties.

If a federal employee retains our firm to assist in his or her disability retirement application, we usually coordinate with the employee’s physician regarding the statement, assist the physician with information that might be important to include in the statement, and help to answer the physician’s questions about the disability retirement process. In addition, we often assist the physician with the actual drafting of the physician statement since we recognize that physicians have very busy schedules. Also, it is sometimes helpful to offer to pay for the physician’s time in preparing the statement, if appropriate. Typically, most physicians want to help their patients in the disability retirement application process and are usually the first to recommend disability retirement to the federal employee.

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


Berry&Berry2

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

On July 21, 2015, the U.S. House of Representatives unanimously passed a new anti-discrimination bill. The bill, referred to as the Federal Employee Antidiscrimination Act of 2015, H.R. 1557, enhances existing discrimination laws. The protections proposed by the bill largely focus on federal agency and supervisor accountability involving discrimination of federal employees in the workplace.

If the bill becomes law, it would require that each federal agency restructure its operations so that the Equal Employment Opportunity (EEO) program head reports directly to the agency head. Federal agencies would also be required to post notices on their agency’s website of any adverse findings of discrimination made against the agency for at least one year.

In addition, the new law would require an agency to notify the Equal Employment Opportunity Commission (EEOC) regarding whether it has taken disciplinary action against an employee found to have engaged in discrimination or retaliation. The new law would further require that the EEOC refer any federal employees who are found guilty of committing discrimination or retaliation to the U.S. Office of Special Counsel for disciplinary action.

A finding of discrimination against a supervisor does not often result in disciplinary action against the supervisor. Therefore, these new reporting and disclosure requirements would likely motivate agencies to take more disciplinary action against supervisors.

Lastly, the new law would prohibit non-disclosure agreements that prevent a federal employee from disclosing wrongdoing involving whistleblower matters to Congress, an Inspector General, or the U.S. Office of Special Counsel. Federal agencies typically insist on these types of non-disclosure clauses in their settlement agreements with federal employees. However, the new law would certainly end this practice.

Since the Act passed in the House 403-0, there is a strong likelihood that it will pass in the Senate and become law. It was received in the Senate on July 22, 2015, and has been referred to the Committee on Homeland Security and Governmental Affairs.

We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law 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.


Berry&Berry2

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

by John Berry

President Obama recently proposed a salary increase for millions of American employees by proposing to expand the scope of overtime rules under the Fair Labor Standards Act (FLSA). The proposed rule issued by the U.S. Department of Labor would raise the overtime salary threshold–which is currently $23,700–to as much as $50,400. As a result, the salary level for non-exempt employees would double under the new overtime rule if they work more than 40 hours a week. This new overtime rule would present a significant change in overtime requirements for employers and employees.

One of the reasons for the change is that the current overtime rules provide employers significant leeway to classify employees as “managerial” and, therefore, exempt them from time-and-a-half overtime compensation. The President took the action under the FLSA, which was enacted in 1938 and last updated in 2004, through a proposed change in regulations by the U.S. Department of Labor. This type of regulatory change does not require Congressional action and will likely be in effect in 2016 when the rule is finalized. The public can comment on the proposed rule up until September 4, 2015.

In the past, the FLSA salary threshold did not account for inflation. One of the goals of the proposed rule is to establish procedures for automatically updating salary levels in the future. The new overtime change will mean that a significant portion of employees will now be eligible for overtime compensation for the first time. For more information on the new proposed rule, view the U.S. Department of Labor’s fact sheet.

We represent employees in federal employment matters nationwide, and private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland.  If you need assistance with an employment law 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.


Berry&Berry2

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

by John Berry

Employees are entitled to all of their previously earned wages, even if they are terminated. However, for various reasons employers sometimes attempt to avoid paying the last paycheck to a former employee. The nonpayment of wages can cause significant hardship for an employee and can be a costly mistake for an employer. Fortunately, there are several laws and regulations that govern issues related to the nonpayment of wages.

An employer generally should pay an employee’s paycheck by the next pay period. Some state laws vary on this issue, but failure to make prompt payment can violate a number of wage and overtime laws such as the Fair Labor Standards Act (FLSA). The Virginia Code § 40.1-29 provides that final payments to a terminated employee should be made on or before the employee would have normally been paid had the employee not been terminated. The Virginia Code imposes civil and criminal penalties for nonpayment of wages by an employer. The Virginia Code further prohibits employers from deducting portions of a final payment without the former employee’s consent with the exception of standard taxes and withholdings.

States vary on the issue of whether an employee is entitled to receive accrued vacation or sick leave upon an employee’s departure. Virginia has taken the approach that fringe benefits such as vacation/annual/holiday leave, sick leave or severance pay are not required to be paid out by a former employer under the law. In addition, employers may establish any policy or no policy regarding fringe benefits at the termination of an employee.

If an employee in Virginia is confronted with nonpayment of final wage issues, the employee can contact the Virginia Department of Labor and Industry. The Virginia Department of Labor and Industry may assist an employee in obtaining payment of final wages after the employee files a complaint, but it does not handle claims for wages over the amount of $15,000. If the payment of lost wages also involves unpaid overtime, the United States Department of Labor, Wage and Hour Division may be contacted and an investigation may be initiated for FLSA overtime violations by the former employer. Additionally, the failure to pay both wages and overtime can be pursued in court.

We represent employees in federal employment matters nationwide, and private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland.  If you need assistance with an employment law 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.


Berry&Berry2

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

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

  • Be proactive. Federal employees and their spouses should be aware of the special rules governing federal retirement benefits while negotiating the terms of their divorce. We recommend utilizing a family law attorney who is familiar with these specialized regulations and consulting with a federal retirement attorney who can advise on these complex regulations. Far too often, OPM will deny court orders due to the court order’s failure to meet the regulatory requirements. In such case, the parties will most likely need to seek an amendment to their court order in family court and submit the amended court order to OPM for processing.
  • Cover your bases. Federal employees have a variety of different retirement benefits, many of which can be shared or assigned to former spouses after divorce by court order. The family law attorney should be aware of the types of benefits available, including:  a monthly marital share apportionment (i.e., a portion of the federal retiree’s annuity); a survivor annuity benefit; a portion of the Thrift Savings Plan (TSP); and coverage under the Federal Employees Health Benefit (FEHB) and the Federal Employees Group Life Insurance (FEGLI) benefits plans. The parties to a divorce can decide the fairest division of these potential assets by familiarizing themselves with each of these types of federal benefits.
  • Pre-retirement check. We recommend that federal employees meet with a federal agency benefits specialist well in advance of their desired retirement date to discuss their retirement. The federal agency benefits specialist should be able to provide guidance and instructions on how to properly complete retirement paperwork and provide a retirement benefits estimate for the federal employee.

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

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

Our law firm represents and advises federal employees in federal retirement and other employment matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.


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