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, Esq.

The President is very likely to seek the elimination of all non-compete agreements, except those that are absolutely necessary. A non-compete agreement restricts where and when an employee can work after leaving their current job. Most employees sign a non-compete agreement before they start employment.

Why Change Is Needed

The proposed change is in response to efforts over the past 15 to 20 years where the use of non-compete agreements has gotten out of control and is beginning to cover practically every type of employee. The result has been that some employees, at even the lowest levels of a company, are barred from getting another position, even if they are terminated. It also has caused an inability for lower-wage workers to take better jobs at other employers as their skills develop. If you want to learn more about non-competes, check out this previously published article.

The President, during the campaign, stated that his goal was to:

“Eliminate non-compete clauses and no-poaching agreements that hinder the ability of employees to seek higher wages, better benefits, and working conditions by changing employers. In the American economy, companies compete. Workers should be able to compete, too. But at some point in their careers, 40% of American workers have been subject to non-compete clauses. If workers had the freedom to move to another job, they could expect to earn 5% to 10% more — that’s an additional $2,000 to $4,000 for a worker earning $40,000 each year…”

See more in the President’s Campaign Plan.

Potential Federal Changes to Non-Compete Agreements

It is uncertain whether or not federal legislation instituting a ban on non-compete agreements will pass Congress. There is also the question as to whether or not the President would use an executive order to bar government contractors from using or enforcing non-compete agreements with their employees. Presumably, the President could do so without Congress.

States Start To Limit Non-Compete Agreements

For the moment, most states allow non-compete agreements in some form. This is quickly changing and many states are reconsidering whether or not to permit (or extremely limit) non-compete agreements. For instance, California has maintained a ban on employee non-compete agreements. In addition, other states, such as the District of Columbia, Oklahoma and North Dakota allow them only in narrow circumstances.

In Virginia, non-compete agreements had long been permitted, but the courts here have made them significantly harder to enforce when they deem them unreasonable. Furthermore, Virginia, as of July 2020, enacted a partial ban on non-compete agreements for low[er]-wage employees. Low-wage employees in Virginia are currently defined as those making approximately $62,000 a year or less, so many employees will be affected.

Conclusion

While there are definitely legitimate uses of non-compete agreements, such as to protect companies from the loss of very sensitive business information and/or personnel, some have gone too far with this type of forced agreement in recent years, which has caused the current backlash. There are examples of food service workers or mechanics forced to sign non-compete agreements, forbidding them from working for others.

However, change is coming and long needed. At this point, given the number of states changing their laws, it is only a matter of time before non-compete agreements are only permissible in isolated circumstances. Non-compete agreements remain needed in some types of employment but not in the broad manner that they are being used today.

Contact Us

If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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

By John V. Berry, Esq.

We represent many employees in the workplace and individuals in administrative and civil forums. The unthinkable Capitol riot that took place on January 6, 2021, will lead to many serious consequences for the individuals who took part. While the full extent of what happened is still being investigated, there will be many consequences for those identified as being involved in the illegal riot in the Capitol.

These may include, but are not limited to the following:

1. Loss of Employment

Whether or not the individual involved is convicted, charged or just identified as being involved in the illegal activities in the Capitol on January 6, 2021, they can be fired from their employment. Private and public sector employees can be easily fired for their participation in the Capitol riots. There is no First Amendment protection for their actions.

2. Loss of Security Clearance

Aside from the issue of termination from employment, an individual that was involved and identified as being part of the Capitol riot on January 6, 2021, almost certainly will face the potential loss of their security clearance or a future inability to hold one. Whether the issue is criminal or just misconduct, individuals that hold or plan to hold a security clearance will likely have significant issues.

3. Criminal Charges

A number of the Capitol rioters have already been charged criminally for their actions on January 6, 2021. There is reason to suspect this list will grow significantly in the weeks to come as the FBI continues their work.

Depending on whether the individual is charged with (1) knowingly entering or remaining in a restricted building without law authority; (2) theft; (3) vandalism; (4) disorderly conduct; (5) violence (the murder of U.S. Capitol Police Officer Brian D. Sicknick) (or assault on a federal law enforcement officer or a member of Congress); or (6) seditious conspiracy, there are major criminal penalties that await many of the rioters.

This is just a sample of the potential criminal charges that could be filed by prosecutors against Capitol rioters.

4. Placement on the No Fly List

Another consequence that individuals participating in the Capitol riot likely did not consider is that some appear to now being placed on the “No Fly List.” The No Fly List is a list created and maintained by the United States Terrorist Screening Center (TSC) of individuals who are prohibited from boarding commercial aircraft for travel within, into or out of the United States.

Already it looks as if some individuals have had difficulties returning home from Washington, D.C. after their participation in the Capitol riot. It can be extremely difficult to ever be taken off this list after being placed on it.

5. Lawsuits

For those Capitol rioters who engaged in violence or other actions that hurt others, they are likely to face civil lawsuits when they are identified. Insurers will be unlikely to defend them so rioters will face significant legal and liability costs. Others who did not participate in violence towards others but were present may also be called as witnesses and be dragged into multi-year litigation.

Conclusion

This is just an interim list of consequences for Capitol rioters as there are a number of other potential consequences they may face in the days and months to come as a result of their actions.

The Capitol riot was a horrific event that caused at least two police officers to tragically lose their lives, more than 50 other police officers to be injured, in addition to a number of rioters who lost their own lives. Those who participated in the Capitol riot are going to face a number of legal consequences as a result of their actions.

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

By John V. Berry, Esq.

We represent many federal employees in the workplace, including defending federal employees against proposed disciplinary actions. Despite the common belief that it’s hard to discipline or remove a federal employee, that is simply not the case. Federal employees quite often face disciplinary and adverse actions.

The following are some general tips regarding how to avoid these potential problems. There are too many to list here, but the following are some good ones to consider.

Get Along With Supervisors

Not getting along with supervisors is the leading cause of disciplinary actions for federal employees. When serious disagreements arise between a supervisor and his or her subordinate, it degrades the employment relationship, which often leads to future disciplinary or performance issues. Even in difficult situations, federal employees should do their best to be professional and pleasant to supervisors (and then find other employment or a transfer if need be). This is not always easily accomplished.

Don’t Use the Internet at Work for Personal Use

While many federal agencies are somewhat relaxed in their enforcement of these types of internet policies, it’s important to avoid using the internet for personal use while at work. Also, avoid using government-issued computers for personal use (e.g. laptops). We have represented many federal employees who are investigated for either inappropriate use of the internet (accessing inappropriate sites), misuse of government computers or in regards to too frequent personal internet use.

Often, we defend federal employees who have used the internet for Facebook, Twitter or even personal banking. It is important to keep in mind that, if an agency wants to, they can quickly determine personal usage and an investigation can start.

Avoid Using Government Email for Personal Use

It is best practice to use your personal email account for personal email correspondence. There are some exceptions. We have represented a number of federal employees who have been proposed for discipline due to misuse of their official government email account, especially with respect to certain types of content. Sometimes the federal employee’s issues involve using government email for personal use or sending inappropriate correspondence or photos. Also avoid using quotations or sayings in signature blocks when corresponding to others using your government email account.

Do Not Use Government Credit Cards for Personal Use

This happens frequently and many times it’s just mistaken use. We have represented many federal employees who have innocently used their government credit card for personal charges. Not only are many federal employees disciplined or removed for such misuse, but they can be forced to repay the funds to the government. Even if policies on credit card usage are not apparently enforced, do not use a government credit card for personal use under any circumstances. If an accidental use happens, consult an attorney to determine how to disclose this to your agency.

(more…)

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

By John V. Berry, Esq

We often are consulted on security clearance matters by federal employees and government contractors in the security clearance process.

In many cases, the security clearance application, investigation and adjudication process will be non-eventful. However, if problems arise, they are typically discovered as the federal employee or government contractor is in the process of preparing his or her security clearance application through e-QIP or the government’s Standard Form 86. If there are potential security clearance issues for an applicant, they should seek advice from an experienced attorney in this area as early as possible.

The following are some general tips for those individuals going through their first investigation — or their third re-investigation:

1. Take Time, Don’t Rush and Answer Security Clearance Forms Carefully

This is one of the most important tips for those undergoing the security clearance process.

Individuals often receive clearance denials because they did not take the time to read the questions asked or proofread their responses on the e-QIP/SF-86 application prior to submission. In some cases, if an individual does not take enough time to read a question and answers “no,” when they should have answered “yes,” a clearance investigator or adjudicator might conclude that the individual was attempting to be dishonest or hide information. This can lead to a clearance denial. Therefore, it is very important to carefully complete the e-QIP/SF-86 before submitting it.

2. Tell the Truth

This seems straightforward, but this recommendation cannot be overstated. Individuals applying for security clearances should be honest in all aspects of the clearance process. When an individual is dishonest during the clearance process, it could not only potentially bar the individual from receiving a security clearance, which would remain on his or her permanent clearance record, but it could also raise a number of other legal issues, including potential criminal issues.

It is often easier for a security clearance attorney to mitigate security clearance concerns involving past financial or prior drug or alcohol usage issues than to defend him or her against an allegation involving dishonesty in the clearance application or interview process.

Caveat: A security clearance applicant should consult with a security clearance attorney if there are any possible affirmative criminal disclosures or civil issues where answering “yes” could place the individual in potential legal harm. It is not often the case, but sometimes an individual may decide to avoid continuing in the security clearance process rather than answering adverse questions.

3. Examine Relevant Documents in Advance

Next, it’s important for individuals undergoing the security clearance process to take the necessary time to gather and review relevant documents related to any potential security clearance problem in advance.

Taking this step will help an individual in three ways: (a) it will help an individual remember all the details of the potential security concern, such as a past arrest, financial issue or foreign contact information, in preparation for answering questions; (b) the documentation may help to mitigate the security concerns now, if necessary; and (c) it is helpful to start organizing the information now as opposed to later when deadlines for responding may occur on short notice.

4. Prepare Yourself for the Interview

If an individual believes there’s a chance problem areas exist in a security clearance application, he or she should expect to be asked about these areas by the assigned investigator. The investigative interview can vary in duration from an hour to several hours, depending on whether significant security concerns exist. A significant amount of the discussion that comes up during the investigative interview will be obtained by the investigator through reviewing the e-QIP or SF-86. Investigators carry credentials identifying them as representatives of DCSA. When the interview starts, they will present their credentials upon introduction.

(more…)

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

Can employers require employees to take the new COVID-19 vaccine?

This issue is likely to come up soon as vaccines for the COVID-19 virus start being deployed. The short answer to this question is likely yes for most employees in the long term. There are exceptions. As a side note, I will be in line to get the vaccine when those at higher risk have first been able to receive their vaccines first.

Religious, Disability and Moral Objections

Whether or not an individual is required to get a COVID-19 vaccine will depend on many factors, including the type of employment that the individual has and whether or not they have health conditions that could be complicated by the COVID-19 vaccine or perhaps run contrary to sincerely held religious beliefs.

Vaccines authorized under the emergency authority of the U.S. Food and Drug Administration (FDA), as the first vaccines will be at the start of the vaccination process, may be more difficult to mandate. I suspect that as the vaccines receive final approval by the FDA, which is a different process, that this could change as well. I don’t know if it will make a significant difference in the next year or two given that there also won’t likely be enough vaccines for everyone that wants one for a number of months. There are also many legal issues in flux and the legality of employers requiring vaccines could be bolstered by Congress.

As an analogy, there are employers that mandate the flu vaccine. The U.S. Occupational Safety and Health Administration (OSHA) has said that employers can legally impose a flu vaccine requirement on their workforce but that employees have the right to request medical or religious exemptions under federal anti-discrimination laws. Similar guidelines are likely to also apply for the COVID-19 vaccine.

EEOC View of Required Vaccinations

The Equal Employment Opportunity Commission’s (EEOC) view of the Civil Rights Act, is that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents her/him from taking a flu vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.

An ethical or moral objection to taking the vaccine would not likely be enough to get beyond such a requirement. Employers with undue hardships (which can override objections) will likely be seen in some types of positions, like those that require direct contact with customers or where COVID-19 outbreaks have previously occurred. In cases where employers have required flu vaccines, some employers have let employees avoid vaccination but require those employees that refuse to take a vaccine to wear a mask at work.

Eventually, the vaccines probably will be approved under the FDA’s more lengthy rules and will no longer be considered experimental. But even then, requiring a COVID-19 vaccine as a condition for returning to employment could create the potential for many types of problems. We are fairly early in the COVID-19 vaccination process, but there are likely to be more laws protecting employers that require vaccines for employees due to the severity of the pandemic.

For those that object to COVID-19 vaccines, there are also likely numerous lawsuits that will be filed over these issues unless new laws are enacted. The best practice for an employer would likely be to strongly encourage but not force an employee to take a vaccine unless there is no other option.

Contact Us

If you are in need of employment law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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

With the new Biden Administration beginning in January, 2021 it is important to look at the issue of who can qualify to hold a position in the new Administration.

For several years (e.g. Bush 1, Clinton, Bush 2, Obama) there has been a consistent security clearance process in place for individuals to hold White House positions. Our Law Firm has represented individuals in the White House in the security clearance process.

Clearance Review for White House Position

For White House appointments, they will be required to undergo a security clearance review. For these types of positions, the Federal Bureau of Investigation (FBI) has been designated to conduct security clearance investigations. The individual will be asked to complete a SF-86 form (also known as e-QIP) to begin their clearance review. Once the initial forms are completed and reviewed, the individual will be interviewed by FBI investigators and a security clearance investigation will begin.

An applicant can expect a full and complete investigation by the FBI. Friends and relatives of an applicant will be interviewed, foreign contacts will be reviewed and background information will be examined. The FBI’s goal in investigating an applicant for a White House position is to attempt to determine whether they might be susceptible to any sort of influence or blackmail that might cause them to disclose classified information.

The applicant’s full background investigation will then be given to the personnel security division of the Executive Office of the President (EOP), which handles security clearance decisions. These are career officials that oversee the security clearance process. Once received, they will review the FBI investigation and make their determination as to whether or not a security clearance should be granted. The EOP decision will generally be controlling absent further action by the President.

Decision on Security Clearances for White House Employees or Appointees

While a President retains the ultimate say as to whether or not to grant an individual’s security clearance, they have usually deferred (for the most part) to clearance recommendations. There is a good reason for this. Most presidents do not want to be seen as showing favoritism towards an individual with security risks for important appointments.

For this level of appointment, if an individual’s clearance is denied, they are unlikely to be able to hold their position. In contrast to other federal agencies, White House appointees have less access to due process in contesting security clearance determinations.

While politics can play a role in allowing an appointee the ability to respond to negative clearance concerns with mitigating information, there is less of an entitlement to due process given that White House appointees serve at the pleasure of the President. This is different than the situation with career employees of the EOP that are able to respond to security clearance concerns and receive the ability to respond to adverse clearance determinations.

Conclusion

We represent individuals in security clearance matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070 to schedule a meeting to go over individual issues and potential representation.

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

By John V. Berry, Esq

We represent individual government contractors (typically private employees that work for government defense contractors) in debarment cases before federal agencies, like the Department of Defense and many others agencies.

What is a Debarment?

Debarments (and shorter term suspensions) are government actions taken under the Federal Acquisition Regulation (FAR) to protect the government’s interest from contractors that have been alleged to be irresponsible. Suspensions result in temporary contractor ineligibility to work on government contracts, usually occurring during an investigation or during other ongoing legal matters. Debarments can last a period of years. Suspensions and debarments are not for the purpose of punishing a government contractor, but for protecting the public.

Some government contractors can have both debarment and security clearance issues.

Effect of Debarments and Suspensions

Debarments and suspensions have a significant impact on individual government contractors. These often include removal from their government contract employment (and potential termination from employment) and potential security clearance issues. Government contractors that are debarred, suspended or proposed for debarment are not eligible to receive contracts, unless a compelling reason exists, which can be a very high bar to meet.

The government takes a straightforward approach to debarment and there is a robust response process. Of late, the government has also seemed to take a more assertive approach in debarment or suspension of individuals that are under the suspicion of wrongdoing, even if they have not been convicted of any crime.

Common Reasons for Debarment (of Suspension of Eligibility)

The most common reasons for debarment or suspension can often include:

• Criminal Convictions or Pending Charges
• Civil Judgments and/or Liens
• Evidence of Crimes
• Specific Misconduct (e.g. time and attendance mischarging)

Debarment/Suspension Process

At the start of the disbarment process, the government will issue a show cause letter requiring a government contractor to demonstrate why they should not be suspended or debarred. These proceedings are completely relatively quickly and individual government contractors must respond in order to avoid a negative outcome.

A debarment or suspension proceeding is similar, somewhat to a security clearance proceeding. The government will generally provide a show cause letter to the individual pursuant to the FAR, an initial chance to respond to the allegations, along with a memorandum in support of proposed debarment. If the matter proceeds, the individual contractor will have to respond to a Notice of Proposed Debarment from the government.

Responding to Debarments

In responding to a notice of proposed debarment, it is important to fully address all allegations of misconduct or impropriety, through counsel. We often find it helpful to submit letters of support on behalf of the individual, awards, commendations and other materials which demonstrate the character and integrity of the individual.

Additionally, cooperation in related investigations, completion of ethics training in a relevant area, acceptance of responsibility and other mitigating arguments should be made to the Debarring Official in an effort to convince them that debarment is not needed or that mitigation is appropriate.

Following the response period, a decision will be rendered by the Debarring Official. The Debarring Official can uphold, mitigate or terminate the Debarment. If a negative finding is reached, leaving the person in a debarment status, that finding will be placed in the debarment database, known as the System for Award Managements (SAM). Further, if a negative finding is upheld, there is sometimes the ability to seek reconsideration of a negative debarment finding. The process can involve contacting the Debarring Official with new or other evidence and seeking to reduce the debarment. It is important to have legal representation in this process.

Contact Us

If you are in need of legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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

By John V. Berry, Esq

The 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 December 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
• 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)
• 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
• 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.

If you think that you have a FERCCA error, you should notify your agency’s Human Resources department. Pursuant to FERCCA regulations, the federal government — upon its receipt of notice that a potential FERCCA error exists — should review your work history to confirm whether a FERCCA error actually exists and supply you with correspondence confirming the FERCCA error and other pertinent information, including benefit estimates for individuals entitled to an election option.

You should also receive a federal election form and information regarding how to receive reimbursement for your actual out-of-pocket expenses related to your FERCCA error, including attorneys’ fees. For more information, visit the Office of Personnel Management’s web site for frequently asked questions concerning FERCCA.

Contact Us

If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.