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.

A common concern for security clearance holders and applicants involves foreign influence.

A significant portion of security clearance appeals typically focuses on this very issue. With respect to foreign influence, the Government is chiefly concerned with an individual’s loyalty or ties to another country over those to the United States.

The rules regarding foreign influence and security clearance cases are set forth in Security Executive Agent Directive 4 (SEAD 4), Guideline B, which discusses the foreign influence concerns that could lead an individual not obtaining or in losing a security clearance.

Examples of Foreign Influence Issues

Some brief examples of issues that might come up to cause the Government concern in potentially denying a security clearance follow:

Example 1 — U.S. citizen was born in India. She has recently inherited a home worth $75,000 and other assets of $50,000 in India. The individual’s parents and family also still live in India.

Example 2 — U.S. citizen born in Taiwan has family that still lives in Taiwan and extended family in China. The individual also has received health benefits from Taiwan in the past.

Example 3 — U.S. citizen’s brother is a general in the Iraqi forces. The risk of having a close relative in such a high foreign position causes a significant security concern for the U.S. Government. See DOHA Case.

Example 4 — U.S. Citizen had 6 relatives in the Philippines. The large number of relatives in the Philippines caused security concerns for the individual in their security clearance matter. See DOHA Case.

Specific Security Concerns Involving Foreign Influence

There are numerous examples of foreign influence issues that can arise when seeking a security clearance. According to SEAD 4, Paragraph 7 the guidelines define serious foreign influence issues as involving the following types of issues:

7(a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect classified or sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information or technology

(c) failure to report or fully disclose, when required, association with a foreign person, group, government, or country

(d) counterintelligence information, whether classified or unclassified, that indicates the individual’s access to classified information or eligibility for a sensitive position may involve unacceptable risk to national security

(e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion

(f) substantial business, financial, or property interests in a foreign country, or in any foreign-owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest

(g) unauthorized association with a suspected or known agent, associate, or employee of a foreign intelligence entity

(h) indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure, or coercion

(i) conduct, especially while traveling or residing outside the U.S., that may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government, or country

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

By John V. Berry, Esq.

The President recently proposed a new federal rule which will affect the wages of employees who earn tips.

The new rule was proposed on October 8, 2019 by the Department of Labor (DOL) and would permit employers to require widespread sharing of tips with other types of co-workers. One of the major industries affected would be the foodservice industry. The newly proposed rule would permit employers to share wait staff tips with food preparation staff and others (e.g. dishwashers, food delivery personnel).

Difficulties With the New Tip-Pooling Rule

A problematic part of the newly proposed rule would give employers newfound flexibility in assigning non-tipped assignments to workers who rely on gratuities for the major portion of their income. The restaurant lobbying industry has sought these types of changes for some time. Former President Obama’s Administration had previously mandated that tips belonged to the workers that received them.

One of the major problems with the new rule, for employees that earn tips is that it takes funds earned by them and transfers them to employees that don’t earn tips. By doing this, restaurant owners are potentially able to compensate food staff (non-tip earners) with lower salaries.

Tipped Employees Wages will be Affected

The DOL, in their proposal, even acknowledges that the new rule will result in tipped employees spending more time on lower-paying duties:

“The removal of the twenty percent time limit may result in tipped workers such as wait staff and bartenders performing more of these non-tipped duties such as ‘cleaning and setting tables, toasting bread, making coffee, and occasionally washing dishes or glasses.’ …Tipped workers might lose tipped income by spending more of their time performing duties where they are not earning tips, while still receiving cash wages of less than minimum wage.”

Employers will Gain

Employers will gain from the situation and may be able to provide lower salaries to non-tip earners, offsetting the loss with tip income. The DOL also provides the real rationale for the change in the proposed regulation: “[E]mployers that had been paying the full minimum wage to tipped employees performing related, non-tipped duties could potentially pay the lower direct cash wage for this time and could pass these reduced labor cost savings on to consumers.”

The proposal should become final in about 6 weeks and could have some changes in the final version. However, if a new administration comes in, the tip-pooling policy could potentially change once again.

Conclusion

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.

We thought that an article on whistleblowing would be timely given the recent news involving the whistleblower complaint involving Ukraine. A whistleblower is simply an individual who learns of illegal or unethical activity (or waste, fraud and abuse) and reports it.

Most whistleblowers do not end up famous, but they often play a critical role in holding employers and the government accountable for engaging in illegal activities. Too often illegal activities are ignored by an employee for fear of retaliation. Some employees, however, take a stand at great risk to themselves. As a result, many whistleblower laws have developed over the years to protect these individuals.

Whistleblower Laws in the United States and Virginia

The United States has had whistleblower laws in effect since 1863 during the time of President Abraham Lincoln, who wanted to encourage individuals to report rampant fraud against the federal government in response to purchases during the Civil War. As a result, the False Claims Act (FCA) became law and encouraged private citizens to bring lawsuits against individuals and companies who were defrauding the government.

As an incentive, the whistleblower could receive a percentage of whatever the government recovered from the disclosure. The FCA is still in effect today, though numerous other federal and state laws cover different types of whistleblowers.

In 1989, the Whistleblower Protection Act (WPA) was enacted to protect federal employees who disclosed illegal actions by the federal government and waste, fraud and abuse. The WPA sought to protect federal employee whistleblowers who suffered retaliation for reporting these illegal activities. There are numerous other whistleblower laws at the federal and state levels that protect individuals who disclose different types of illegal activities, such as the Clean Air Act, the Sarbanes-Oxley Act, the Toxic Substances Control Act, and the Occupational Safety and Health Act (OSHA).

These are just some of the existing whistleblower laws that can protect individuals that make disclosures. Additionally, many states allow employees, either by statute or common law, the ability to challenge retaliation related to whistleblowing activities.

In Virginia, because the state has not yet enacted general state whistleblower protections for employees, the courts have allowed employees to bring whistleblower claims through common law. These are known as Bowman claims, after the case of Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985).

General Test to Qualify for Whistleblower Protection

The importance of being a whistleblower is that certain protections can then come into play after the disclosures are made. Generally, once a disclosure is made, an employer finds out who disclosed the illegal activity and are very unhappy with the employee. This often causes employer retaliation against the whistleblower.

Whistleblower protection laws usually follow the same 3-part test to determine if an employee can prevail on a retaliation claim. In general, this requires:

1. That the individual had a good faith belief that their employer was engaging in illegal activities or waste, fraud and abuse and they reported it
2. That the individual’s employer knew that the individual made such disclosures
3. That the whistleblower suffered retaliation due to the disclosures

Depending on the statute involved, a whistleblower can receive legal protection from retaliation (the most common retaliatory action involves termination from employment), damages, back pay and attorney fees. Each statute is different so individuals should consult with an attorney if they believe that they may need whistleblower protection.

Conclusion

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

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

By John V. Berry, Esq.

An amendment approved by the Governor of Virginia in Virginia Code.

Requirements of the New Virginia Employment Law

Virginia Governor Ralph Northam approved an amendment and re-enactment of Virginia Code § 8.01-413.1. The new amendment requires Virginia employers to produce certain employment documents when they receive a written request from a current/former employee or employee’s attorney.

If the employer doesn’t comply, the Virginia statute awards potential damages to the employee if the employer fails to do so within the allotted timeframe. Since the amendment became effective on July 1, 2019, a number of Virginia employers are seeing an increase in requests for the applicable documents.

The Virginia amendment requires a Virginia employer to furnish employment records reflecting (1) dates of employment, (2) wages or salary, (2) job description and job title, and (4) any injuries sustained during the course of employment within 30 days of the receipt of a written request. An employer is not required to be a party to a suit for the statute to apply. That statute provides that:

Every employer shall, upon receipt of a written request from a current or former employee or employee’s attorney, furnish a copy of all records or papers retained by the employer in any format, reflecting (i) the employee’s dates of employment with the employer; (ii) the employee’s wages or salary during the employment; (iii) the employee’s job description and job title during the employment; and (iv) any injuries sustained by the employee during the course of the employment with the employer. Such records or papers shall be provided within 30 days of receipt of such a written request.

Before the new Virginia statute, employers were not required to produce such documents without a subpoena. If the Virginia employer cannot process the employee’s request within 30 days, the employer must notify them in writing. The Virginia employer will then have an additional 30 days to produce the records.

Pursuant to the Virginia statute, the employer can charge a reasonable fee for the copying of paper records and/or the retrieval of electronic records. Failure to comply with a written request can result in a subpoena and the award of damages against the employer, including the employee’s expenses for obtaining the copies, court costs and attorneys’ fees.

The bottom line is that the new statute in Virginia will help employees obtain copies of their employment records. If the employer does not comply, they will likely be responsible for significant fees.

Conclusion

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

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

By John V. Berry, Esq.

The elections in 2020 are quickly approaching. Our law firm often represents and defends federal employees for potential Hatch Act violations in the federal workplace.

The Hatch Act was meant to limit the partisan political involvement of federal employees. Hatch Act political activity restrictions apply during the entire period of an employee’s federal service. There are certain rules that prohibit both on-duty and off-duty political conduct. As the 2020 elections start to come closer, this article is meant to help federal employees avoid the pitfalls of committing potential Hatch Act violations.

What is the Hatch Act?

The Hatch Act of 1939 prohibits certain types of political participation by federal employees. For example, federal employees may not seek public office in partisan elections, use their official titles or authority when engaging in political activity, solicit or receive contributions for partisan political candidates or groups, and/or engage in political activity while on duty.

Even though the word “partisan” is used other types of non-partisan elections where the candidate is backed by a particular party can also cause a federal employee potential Hatch Act violations.

Enforcement of Hatch Act Violations

For most federal employees, the Hatch Act is enforced by the Office of Special Counsel (OSC). The OSC has the ability to seek disciplinary action against federal employees if violations are found. Federal employees can potentially be disciplined or terminated for violations of the Hatch Act.

Generally, the OSC will first conduct an investigation and then if violations are found may then seek to negotiate a resolution. In other cases, the OSC may file a disciplinary action with the Merit Systems Protection Board against the employee and ask an administrative judge to take action against the federal employee for a violation.

Hatch Act Tips for Federal Employees

Here are some quick tips for avoiding Hatch Act violations in the federal workplace:

• Avoid discussion of partisan politics using government email
• To the extent possible, avoid partisan political discussions while at work or while performing work
• Don’t try to raise money for partisan political candidates in the workplace (even passing along links for partisan candidates to co-workers)
• Don’t post political discussions during work hours on social media
• Don’t donate to a political campaign during work hours
• Don’t bring political campaign signs or buttons into the federal workplace
• Don’t run for office in a partisan political election

Federal employees can often still participate in political activities, but doing so at work can be a violation of the Hatch Act.

For further information on potential Hatch Act violations, please see the information offered by the OSC. While it is doubtful that brief discussions about politics in the federal workplace would trigger an OSC investigation, the potential risk is there. The safest course for federal employees is to simply avoid partisan politics in the workplace and save them for off-duty.

Conclusion

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

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

By John V. Berry, Esq.

Some states are beginning to offer victims of domestic violence employment law rights.

The Commonwealth of Virginia has not done so yet, but this article focuses on the jurisdictions that have enacted such legislation. The most major legislation in this area has come from New York and California. It is hoped that more states (and Virginia) will begin to enact these types of employment law protections for victims of domestic violence.

New York and California Laws Offer Employment Law Protections

The State of New York recently enacted Bill A5618/S1040, which offers employment law protections to victims of domestic violence. The new law enhanced previous New York protections which prohibited discrimination against victims of domestic violence within the workplace. The new law adds the following:

Reasonable Accommodation: The law requires employers to reasonably accommodate victims of domestic violence who must be absent from work for a reasonable amount of time to seek medical attention, therapy or legal services in connection with domestic violence.

Anti-Discrimination: The new law further ensures that domestic violence victims are considered a protected class and that employment discrimination against them is considered another form of illegal discrimination.

The State of California has enacted similar protections for victims of domestic violence. In some ways, the protections given to employees in California are slightly stronger than those in New York. California Labor Code §§ 230 and 230.1 provides employment law protections to victims of domestic violence, sexual assault or stalking.

Like in New York, California requires employers to provide reasonable accommodations to domestic victims. California also makes it illegal to discriminate or retaliate against a victim of domestic violence for taking time off of work to seek help.

Virginia Lags Behind in Protections

Virginia lags far behind in the protection of domestic violence victims in the workplace. The legislature should move to adopt a law similar to those enacted by California and New York to ensure that employees suffering from domestic violence are not terminated or discriminated against for taking time off to get medical or mental assistance needed in order to get better.

Currently, Virginia only protects victims of domestic violence (and other crimes) for the time taken to respond to a summons or subpoena related to the criminal proceedings. Va. Code § 18.2-465.1. Virginia also requires an employer to permit a victim of a crime to be present at all criminal proceedings related to a crime against the employee. Va. Code 40.1-28.7:2.

Virginia also offers suggested (not binding) guidance to employers asking them to consider allowing victims of all crimes (including domestic violence) to be able to attend court without loss of pay. Va. Code § 19.2-11.01(A)(3)(a). Virginia should follow the lead of New York and California and protect domestic violence victims in the workplace.

Conclusion

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

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

By John V. Berry, Esq.

Virginia couples seeking to marry in the Commonwealth of Virginia must still list their racial identity to obtain a marriage license.

In a recent federal lawsuit three couples were denied marriage licenses after refusing to specify their race. The lawsuit was recently filed in the U.S. District Court for the Eastern District of Virginia challenging the requirement. It is about time that Virginia put an end to this requirement.

The Virginia Code, Va. Code Ann. §32.1-267(A), requires that individuals seeking a license to marry must identify themselves according to race. In the lawsuit, these couples have argued that Virginians should not be required to list their race under the 13th and 14th Amendments to the U.S. Constitution. As a practical matter, this requirement is also a problem because Virginia counties have inconsistent and different definitions of race.

For example, in Arlington, where two of the couples tried to obtain their marriage license, the race options were listed as follows: American Indian/Alaskan Native; African American/Black; Asian; Caucasian; Hispanic/Latino; Pacific Islander or Other. Contrast this with Rockbridge County, where the 230 possible race categories include: “White American,” “Aryan,” “Octoroon,” “Quadroon” and “Mulatto.” These types of categories are horribly offensive to many.

The Commonwealth is not alone in this marriage requirement. There are 8 other states that require individuals to identify their race prior to obtaining a marriage license, including Connecticut, Delaware, Kentucky, Louisiana, Minnesota and New Hampshire.

Furthermore, in Virginia, not only do you have to list your racial identity in obtaining a marriage license but if you list it falsely, a person can be guilty of a felony. It is time for Virginia to rescind this archaic law.

Conclusion

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

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

By John V. Berry, Esq.

One of our major practice areas involves representing individuals in security clearance law matters.

We frequently speak to individuals who have issues or concerns relating to their security clearances and are seeking a new position elsewhere. We decided to put together some tips for employees that are changing positions in the context of holding a security clearance.

Tips for employees leaving one cleared position for another:

Leave Your Existing Employer on Good Terms

It is very important to leave your employer on good terms when taking a new position elsewhere. The better the departure, the less likely that you will have issues relating to your security clearance. Keep in mind that a former employer can still report security concerns about a former employee even when they have left.

I recommend the cordial departure approach with supervisors and the company and that the individual take every step possible to keep their former employer happy while you leave.

Know the Status of One’s Clearance Before You Go

It is important to know the status of your clearance before you leave. Too often we have seen a person accept a new position but not realize that their security clearance was out of scope or pending re-investigation, possibly leaving them without an active clearance when they leave.

There is also the possibility that a negative incident report is pending which is unknown at the time of departure. This is a major potential problem where an employee has left their position thinking that all is okay, but then later find out (usually after 2 weeks at the new job) that there is a problem with their security clearance which often leads to a termination.

Have the New Employer Check Your Status Before Leaving the Former Employer 

The individual leaving employment should confirm and re-confirm with the new employer’s security office the status of their security clearance.

This is especially the case where an individual maintains a security clearance in one system, i.e. the Department of Defense JPAS database and attempts to move to a position with an Intelligence Community agency (i.e. NSA, CIA) which is covered by a different database known as Scattered Castles. Sometimes these two databases do not sync well which can cause issues and delays.

Individuals Having Security Incidents Should Take it Slow Before they Leave

One of the most common problems that we come across is when an individual knows that they have an incident report but they still attempt to move to the new employer before their security issue is adjudicated and cleared.

If an individual knows that they have an incident report pending they are typically much better off by staying with their existing employer who will likely keep them employed while the matter is adjudicated. The new employer is far more likely to tell an individual, only after they have left their prior employment, that their clearance has an issue and that they can no longer hire them.

Special Transition Notes

When there is a difficult transition like when the employer is upset with an individual leaving their position for another job it is important to be very careful what the employee takes when with them when they leave the office. We have had numerous cases where an employee leaves one employer under less than favorable circumstances and then the employer claims loss of confidential information and reports the employee to clearance authorities.

In particular, an individual should be very careful in what they take from their computer or printed files from the office. If there is any question, get permission from the employer. Some clients have been reported for taking company emails, files or other information, even if not classified which results in significant security clearance issues.

Conclusion

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

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

By John V. Berry, Esq.

Several states (not Virginia yet), have made moves to restrict the using unreasonable non-compete agreements with employees. Our practice has shown us that Virginia non-compete agreement reform is needed.

We have represented employers and employees in our practice and have found that many non-compete agreements in Virginia are extremely over broad and unreasonable.

What are Non-Compete Agreements?

A non-compete agreement is simply a contract between an employee and an employer in which the employee agrees not to enter into competition with the employer during or after employment.

Reasonable non-compete agreements are helpful and often necessary for employers to hire individuals without risking that they will then lose their customers if an employee leaves and tries to take clients with them. However, these types of agreements have started to get completely unreasonable.

Currently, non-compete agreements have not been restricted by Virginia law but regulated through the courts. Employees in Virginia who sign non-compete agreements can be held to them only if they pass this three-part test:

• Is the restriction reasonable in the sense that it is no greater than is necessary to protect the employer in some legitimate business interest?
• From the standpoint of the employee, is the restraint reasonable in the sense that it is not unduly harsh and oppressive in curtailing his legitimate efforts to earn a livelihood?
• Is the restraint reasonable from the standpoint of a sound public policy?

Paramount Termite Control v. Rector, 380 S.E.2d 922 (Va. 1989).

However, the problem with the status quo is that employers have the upper hand, for the most part, with these types of agreements and enforcement. Take for example an employee making $50,000 a year, who signed an unreasonable non-compete agreement but is threatened by a large law firm and faced with massive legal expenses in challenging it.

In short, it is time for Virginia to provide safeguards for employees in this area.

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

By Kimberly H. Berry, Esq.

A new Virginia employment law has gone into effect that restricts what employees and employers can agree to in non-disclosure agreements as a condition of the employee’s employment.

On February 22, 2019, the Virginia Governor signed off on House Bill 1820, affecting all Virginia employers. HB 1820 was unanimously passed by both the Virginia House of Delegates and the Virginia Senate during the Virginia General Assembly 2019 Regular Session.

The new law specifically limits the scope of non-disclosure and confidentiality agreements between employees and employers regarding the disclosure or concealment of sexual assault claims.

The new law, at Va. Code § 40.1-28.01, prohibits a Virginia employer from requiring an employee or prospective employee from agreeing to a non-disclosure or confidentiality agreement that attempts to conceal the details relating to a claim of sexual assault as a condition of employment. Under the new Virginia law, claims of sexual assault include claims of rape, forcible sodomy, aggravated sexual battery and sexual battery.

Va. Code § 40.1-28.01 provides that these types of settlement provisions are contrary to public policy, void and unenforceable in the courts. Va. Code § 40.1-28.01 further provides that the new prohibition on non-disclosure and confidentiality agreements will in no way limit other grounds that exist in law or equity for the unenforceability of any such agreement or any provision of such agreement.

The new law can affect new and existing non-disclosure or confidentiality agreements that attempt to hide claims of sexual assaults related to employment.

Conclusion

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