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 Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.

by John Berry

Changes may be coming to the federal security clearance process.

U.S. Senator Jon Tester of Montana introduced the Security Clearance Accountability, Reform, and Enhancement Act of 2015 (S.434) on February 10, 2015. If passed, the new bill would modify the existing security clearance process for both federal employees and government contractors. Federal agencies would also be required to terminate or place on administrative leave any federal employee who is involved in certain types of misconduct related to security clearance investigations.

The new bill would also prohibit government contractors involved in similar conduct from performing background investigations. In addition, government contractors would be required to report violations by their employees to government agencies.

There are other provisions in the new bill, but the ones listed above seem to be the most significant provisions. The new bill was recently approved this month by the Senate Homeland Security and Governmental Affairs Committee and will move to the full Senate.  A summary of the changes that would be enacted if S.434 is passed are provided by the Congressional Budget Office.

If such changes to the security clearance system are enacted, we will likely see an increase in the number of disciplinary actions taken against cleared federal employees. The new bill essentially enables the federal government to terminate federal employees who have been found to have been dishonest in the security clearance process.

We represent federal employees and government contracts in security clearance matters. 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.

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

Depending on your particular profession, your employer may require you to sign a stand-alone non-competition agreement, non-solicitation agreement, or other similar restrictive covenant or your employer may include a non-competition and non-solicitation clause in your employment or severance agreement.

Non-competition agreements or clauses typically stipulate that the employee agrees not to enter into or start a similar profession that competes with the employer’s business within a geographic area after he or she terminates employment. Non-solicitation agreements or clauses typically restrict the employee’s ability to solicit, encourage, or assist other employees with leaving or seeking employment with the employee at a competitive employer. These types of restrictive covenants are usually in effect for a specific period of time and within a limited geographic area after the employment ends.

It is important to note that restrictive covenants narrowly tailored in geographic scope, duration, and type of activities are more likely to be enforced than more broadly drafted restrictive covenants. In particular, the scope of restricted activities and geographic area involved should be related to the employee’s job duties as well as the employer’s business.

Restrictive covenants that were created several years ago may no longer be considered enforceable based on changes in the law. Therefore, it is a good idea for employers to review and consider revising restrictive covenants that were written more than five years ago.

Employers should also note that non-competition and other important employment agreements usually are not enforceable against an employee unless a fully executed copy exists. As such, employers should make sure to sign and carefully maintain their agreements.

Virginia courts will not “blue pencil” or attempt to revise or enforce a narrower restriction in the covenant. As a result, a drafting error or otherwise unenforceable restriction in a larger restrictive covenant or agreement will typically render the entire agreement unenforceable in Virginia.

Furthermore, the Virginia Supreme Court clearly disfavors non-compete covenants. In fact, the Court has not rendered a decision that clearly favors the employer in a restrictive covenant case since the 1990s.

We represent employees and employers in employment law matters. 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.

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

Employers have occasionally attempted to gain access to the social media accounts of current and prospective employees such as during workplace investigations or background checks. When employers request access to social media accounts of current and prospective employees, it promotes distrust in the employer-employee relationship and generally gives rise to a significant worsening of the relationship that could lead to other employment issues.

A new Virginia law, effective July 1, 2015, prohibits Virginia employers in the private, state, and local sectors from requiring current and prospective employees to disclose their username and passwords of their social media accounts or to add an employee, supervisor, or administrator to their contacts list.

The new law also prohibits an employer from accessing an employee’s social media account if the employer inadvertently obtains the employee’s login information. The new law, however, does not protect social media information that is publicly available.

Finally, the new law prohibits retaliation from an employer if an employee exercises his or her rights under the new law. Virginia is one of the latest states to enact social media protections for employees. View Virginia Code Section 40.1-28.7:5 for more information.

We represent employees and employers in employment law matters.  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 the column are those of the author and do not necessarily reflect the views of ARLnow.com.

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

On April 3, Gov. Terry McAuliffe, took the first steps, at the state level, to “Ban the Box” for individuals applying for state employment positions by signing Virginia Executive Order 41. “Ban the Box” is a reference to a movement seeking to ensure fairness for individuals previously arrested or convicted of a crime from being automatically disqualified for employment.

According to the Wall Street Journal, nearly one out of every three adults in the United States has a prior arrest or conviction on file with the Federal Bureau of Investigation. The “Ban the Box” movement attempts to stop employers from using initial background checks to screen out applicants before those applicants have the opportunity to show that they can perform at the position.

Such checks have created significant obstacles for individuals, even with minor arrests or convictions, to obtain employment. Essentially, once an individual has checked the box on a job application indicating that he or she had previously been arrested or convicted, the applicant often finds that the application was automatically rejected.

According to the National Employment Law Project, 15 states and 100 cities or counties now have “Ban the Box”-type restrictions in place. Virginia is the latest to implement such a restriction on a statewide level. Executive Order 41 implements a “Ban the Box” policy for those individuals seeking state employment and ensures that the Department of Human Resource Management takes the following actions:

1. Amend the state employment application to remove questions relating to convictions and criminal history;
2. Inform all state executive hiring authorities that state employment decisions will not be based on criminal history unless clearly job-related and consistent with business necessity or where state or federal law prohibits hiring an individual with certain convictions for a particular position;
3. Instruct state agencies to ensure that any criminal history check is conducted only after a candidate has been found otherwise eligible for the position and signed an appropriate release; and
4. Identify sensitive state employment positions where initial disclosure of criminal history will still be required.

Executive Order 41 only applies to state employment, not positions in the private sector. However, it is likely only a matter of time before such laws are eventually enacted more broadly.  At the city/county level, a number of Virginia counties have also passed “Ban the Box” rules for county employees, including, but not limited to, Arlington, Alexandria, Fairfax, Richmond, Newport News, and Norfolk.

We represent employees and employers in employment law matters.  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 the column are those of the author and do not necessarily reflect the views of ARLnow.com.

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

The Federal Erroneous Retirement Coverage Corrections Act (FERCCA) was enacted in September 2000 and designed to provide relief to federal civilian employees who were placed in the wrong federal retirement system for at least three years of service after Dec. 31, 1986.

Typically, FERCCA errors arise when a federal employee experiences a break in service, especially during the mid-1980s when the Federal Employees Retirement Systems (FERS) plan was created. In some cases, FERCCA has provided federal employees and annuitants placed in the wrong federal retirement system with the opportunity to choose between FERS and the offset provisions contained within the Civil Service Retirement System (CSRS).

In order to determine if you are in the correct federal retirement plan, you need to know the type of appointment you have and your work history. Federal retirement rules governing retirement plan placement are complex and contain many exceptions that are hard to follow. If you find that you fit in any of the situations described below, you could be in the wrong federal retirement system. However, keep in mind that there are exceptions to the general rules.

If you currently have CSRS coverage, then you may be in the wrong plan if:

• You worked for the federal government before 1984, but not on a permanent basis;
• You left federal employment for more than a year at any time after 1983;
• You have a temporary appointment limited to a year or less, a term appointment, or an emergency indefinite appointment;
• You have no federal civilian employment before 1984; or
• You do not have a career or career conditional appointment and you work on an intermittent basis (see the work schedule block on your SF-50).

If you currently have CSRS Offset coverage, then you may be in the wrong plan if:

• You have a temporary appointment limited to a year or less, a term appointment, or an emergency indefinite appointment;
• You have no federal civilian employment before 1984;
• You do not have a career or career conditional appointment and you work on an intermittent basis (see the work schedule block on your SF-50); or
• You did not work for the federal government for a total of five years before 1987 (not including your military service). Exception: If you worked under CSRS, left the federal government, and your agency placed you in CSRS Offset upon your return, your CSRS Offset coverage is probably correct if you had five years of federal government service when you left.

If you currently have FERS coverage, then you may be in the wrong plan if:

• You have a temporary appointment limited to a year or less;
• You do not have a career or career conditional appointment and you work on an intermittent basis; or
• You have worked for the federal government for at least five years before 1987 (not including military service) unless you elected to transfer to FERS during a FERS Open Season or after a break in service.

FERCCA can also provide 1) reimbursement for certain out-of-pocket expenses paid as a result of a coverage error (e.g., attorney’s fees, costs, etc.); 2) an ability to benefit from certain changes in the rules about how some federal service is credited toward retirement; and 3) make-up contributions to the federal employee’s Thrift Savings Plan (TSP) and receipt of lost earnings on those contributions, among other provisions. (more…)

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

Several states have recently passed laws legalizing the use of certain drugs, such as marijuana, for either recreational or medical use.

Officials in the District of Columbia recently passed a law that legalized the limited possession and cultivation of marijuana by adults 21 and older.

Virginia has been less accepting of any change to its existing drug laws as a number of similar drug legalization bills have met significant opposition. Maryland has proposed a bill that would legalize, tax, and regulate marijuana for adults 21 and over, which remains in a state house committee.

In light of recent changes to state laws legalizing certain drug use, employees and employers alike are questioning how these changes will affect the employer’s ability to continue to require drug testing in the workplace and potentially terminate or discipline an employee for positive drug test results. However, many employers still continue to test employees for illegal drug use.

While some jurisdictions have legalized the use of certain drugs, they have not yet updated their laws to prohibit testing for legalized drugs. For instance, a D.C. employer can still test its employees for marijuana use despite laws that now legalize marijuana use in the District.

Although D.C. has proposed new laws to place some limits on drug screening for marijuana use in the workplace, such proposals are still in progress. As a result, employers in D.C. are essentially permitted to continue their existing drug testing requirements without making exceptions for the recent legalization of marijuana use in the District.

The federal government has taken the position that the use of illegal drugs, even in states that have legalized the use of certain drugs, still violates federal law. As a result, drug use, even where approved by state law, can result in a security concern being raised and/or the potential denial of a security clearance for federal employees and government contractors. In addition, a security clearance holder can be penalized for associating with other individuals engaging in drug use, even if the other individuals have engaged in state-legalized drug use.

Our law firm represents and advises employees on employment-related 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.

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

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

Many current and former employees often wonder whether they have the right to review or obtain a copy of their personnel files. As a general rule, private sector employees in the Commonwealth of Virginia are not entitled to review or obtain a copy of their personnel files from an employer.

Private Sector Personnel Files

Each state has its own laws and regulations concerning the personnel files of private sector employees. Virginia, the District of Columbia, and Maryland currently do not have statutes that require private sector employers to provide an employee with a copy of or the ability to review his or her personnel file. Some states, such as California, Michigan, and Connecticut, have passed laws requiring that employees have access to their personnel files. The national trend is moving toward legislatures requiring employers to provide current and former employees access to their personnel files. Some states require that a copy of such files be made available to an employee or former employee at a nominal cost. Unionized private sector employees may have additional rights to review or obtain a copy of their personnel files depending on collective bargaining agreements in place between a union and an employer.

Public and Federal Sector Personnel Files

Public sector employees are governed by different county, state, and federal laws. Federal employees generally have the right to obtain a copy of their personnel files through the Privacy Act of 1974, 5 U.S.C. § 552a. Virginia public sector (state or county) employees have the right to review their personnel files under Va. Code 2.2-3705.1 and Va. Code 2.2-3705.5. Additionally, if a personnel matter goes to court, an employee will typically be able to obtain a copy of his or her personnel file through litigation procedures.

Advice to Private Sector Employees and Employers

If employees do not have a statutory or other right to obtain a copy of their personnel files, we advise that they still request the ability to review it. Even though employers may not have a formal policy on reviewing personnel files, human resources will often grant an employee’s request to review his or her personnel file. Sometimes there are restrictions on copying the personnel file or other safeguards. We generally advise employers to consider allowing employees, under certain conditions, the ability to review their personnel files even if it is not required by law. This often has a positive effect on workplace morale and helps to limit suspicion within the workplace. Such a policy also gives an employer the ability to clearly document that an employee has been put on notice or received prior disciplinary or performance counseling. Whatever policy is adopted by an employer, it should be applied consistently to all employees.

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

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

We often advise employees on how to best handle their employment problems in the workplace either while they are developing or after an adverse employment action. It is important for employees who are experiencing workplace problems to stay focused and calm while issues are developing. Here are 10 tips to follow if you are dealing with problems in the workplace.

1. Relax and Stay Calm.

When facing employment issues, don’t get visibly upset in the workplace. For instance, if you are meeting with Human Resources (HR), it is important to remain calm during the HR meeting. As difficult as it may seem at the time, it is important to stay calm even when dealing with significant employment issues. It generally is not helpful to argue with HR or a supervisor over an employment issue that arises. Doing so can put an employee at risk for discipline, placement on leave, or even retaliation. Listen to what HR or the supervisor has to say, remain non-committal about any allegations, but indicate a willingness to cooperate and work out any employment problems, if at all possible.

2. Don’t Post About Employment Issues on Social Media.

It is highly recommended that an employee not post his or her employment problems on social media (e.g., Facebook, Twitter). Employees often forget who they have friended in the social media realm or haven’t adequately set privacy settings. Despite having set privacy settings adequately, there still may be an extended audience (e.g., friends of friends) who are privy to the employee’s posts. Our firm often sees insubordination or misconduct cases involving posts that employees have placed on their social media accounts about issues in their employment (or about a particular supervisor) that have somehow been forwarded on to the employer or supervisor involved. Employers and their attorneys have simply become more adept at obtaining this type of information on social media.

3. Keep Your Legal Plans Private.

Employees often get understandably upset with supervisors and HR about a particular employment situation (e.g., Letter of Warning, Performance Improvement Plan, Suspension, etc.) and state that they are going to take legal action. Do not let a supervisor, HR, or anyone in the workplace know about your legal plans prior to consulting with an attorney. It is important to keep employment issues and legal plans private. We have seen many instances where an employee informs a supervisor that he or she is seeking legal assistance on an employment issue, which then leads to retaliation by that supervisor. It is important for an employee not to inform a supervisor or anyone in the workplace about any legal plans early in the process and until the employee has sought legal advice from an employment attorney.

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