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 employees in Virginia who have been terminated in retaliation for whistleblowing. Whistleblower cases are unique and present their own unique challenges.
Employees are advised to seek counsel as early in the process as possible if they believe that they have been terminated (or will be terminated) in retaliation for whistleblower activities.
Whistleblower Law in Virginia
In Virginia, if a whistleblower reports alleged wrongdoing or states that they intend to report it, this can subject the employer to a civil lawsuit for retaliation if it falls under certain criteria. While Virginia is an at-will state, and employees may be fired for any reason or no reason at all, exceptions can apply.
In the past 30 years, exceptions to this general rule have started to emerge in Virginia. One such exception involves employee termination in retaliation for whistleblowing.
The Virginia courts carved out this exception to the at-will doctrine in the 1985 case of Bowman v. State Bank of Keysville. Other rules on whistleblowing can apply to federal employees and state or local employees. This article focuses on private company employees in Virginia.
What Kind of Retaliation is Covered?
An employer may not terminate an employee for reporting an issue that relates to the public policy of Virginia. An employee has a potential claim for wrongful discharge when the basis for the discharge violates public policy.
In order to determine what constitutes public policy, Virginia courts have pointed to statutes to determine if an issue has been endorsed by the state (e.g., the right to collect unemployment compensation benefits if eligible) or prohibited (e.g., criminal laws prohibiting perjury).
Example: Employer is sued for a personal injury by a shopper in their department store. Employee Jim Smith is a witness to the injury. The employer asks the employee to lie in court so that they won’t be liable. Mr. Smith refuses to lie in court. Employee A testifies truthfully and is then fired.
Statutory Whistleblower Retaliation in Virginia
In addition to the exceptions carved out by the Virginia courts, the Virginia General Assembly has passed specific statutory protections for certain activities. Employees who engage in protected activities under laws in certain areas are also protected from retaliation. These include asbestos, lead, and home inspection contractors; occupational safety and health issues; and workers’ compensation.
However, because the Virginia assembly has not passed a general whistleblower protection statute, most workers have to rely on the exceptions carved out by the courts to pursue a whistleblower claim. The courts in Virginia have seen an increase in the number of these types of cases in recent years.
I believe that more cases will expand this doctrine as Northern Virginia grows and exerts influence in Richmond for these types of employment protections.
The most usual remedies for Bowman Whistleblower claims can include:
- Reinstatement
- Damages
- Lost Benefits
- Attorneys fees
Conclusion
If you are in need of employment law advice representation, 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 security clearance holders and applicants so every few years, we look back on the trends of what security concerns most often lead to the loss (or potential loss) of a security clearance. This year we thought we would do the same. Overall, not much has changed.
2018 Grounds for Loss of Security Clearance
There are 13 security concerns that can lead to the loss of a security clearance, which is listed in Security Executive Agent Directive 4 (SEAD 4). These concerns range from foreign influence to financial issues and numerous other issues in between. A review of publicly available security clearance cases was conducted by Marko Hakamaa of ClearanceJobs.com, which provided the breakdown of issues that resulted in initial security clearance denials.
Financial Issues Remain the Number 1 Concern
From the report, it is fairly clear that the number 1 issue of concern for security clearance holders remains Financial Considerations under Guideline F. While this Guideline can cover many areas related to financial responsibility, we see that it most often comes up in the context of a credit report which shows major unresolved debts or when an individual’s tax payments or filings are not timely.
Often for major debts the government is concerned that this could leave an individual subject to potential coercion. For issues related to taxes, the issue is the non-compliance of the individual with tax laws.
General Misconduct Comes in Second
The second most significant security concern from this report shows that Guideline E, Personal Conduct is the next most common clearance issue. Guideline E is a general security concern which can practically cover any type of bad conduct. Most typically, however, it often comes up in the context of illegal drug use, an arrest, a record of bad employment or lying on security clearance forms.
Foreign Influence is Ranked Third
The third most common basis for losing a security clearance was foreign influence, under Guideline B. This issue most commonly comes up when an individual with a security clearance (or who is seeking one) has relatives or property in another country.
The major concern of the government is that an individual may have relatives in another country that work for that government or who could be used as pawns to gather information from the clearance holder or applicant. The United States also treats clearance holders and seekers whose relatives are from allied countries (e.g., the United Kingdom, France, etc.) much better than those from less cooperative countries, like China or Russia.
The rest of the 2018 breakdown of security concerns is included in this report. We represent individuals with these types of security clearance appeals and there are often mitigating factors which can result in a favorable adjudication of these types of security clearance issues. The key is to involve counsel experienced in this area of law as soon as possible.
Conclusion
If you are in need of security clearance advice or representation, 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.
More common types of federal agency “adverse actions” (more serious discipline) include removal, demotion, reduction in grade or suspensions of greater than 14 days. Some types of “disciplinary actions” (lessor discipline) include letters of warning, letters of reprimand, oral or written counseling or suspensions of less than 15 days.
Federal Employee Rights in Disciplinary Cases
If a federal employee is issued a proposed disciplinary action, the proposal will normally include a description of the alleged misconduct and the type of charge against the employee (e.g., insubordination, theft, conduct unbecoming, lack of performance, etc.).
Federal employees in adverse action matters (suspensions of 15 days and above, and demotion matters) and in some disciplinary actions (suspensions of any length (usually 14 days and below)) have the following rights: (1) right to an attorney; (2) right to respond to the proposal in writing or orally, and (3) the right to review all of the materials relied upon in the issuance of the Proposal.
We recommend that employees involved in proposed disciplinary or adverse action always request from the agency all of the materials that it is relying upon to propose discipline. Sometimes disciplinary actions will not be drafted properly and reviewing the materials relied upon can help in responding to the discipline.
Present Both a Written and Oral Response
We also usually recommend, in most cases, that a federal employee present both a written response and an oral response to the deciding official (the decision maker on the disciplinary action) in a proposed disciplinary or adverse action.
The oral response portion of a federal employee’s response can be extremely important and usually follows the submission of the written response.
Typically, when we assist federal employees in this regard, we obtain a full statement of facts from the federal employee involved and prepare a full written rebuttal to the allegations. We also contact the deciding official in the personnel action and request an appointment for the oral response.
In these types of cases, we respond to both the merits of the alleged conduct and argue for mitigation under the Douglas Factors. Douglas Factors typically are mitigating reasons as to why a particular disciplinary penalty should be reduced (i.e., based on years of successful performance, no prior disciplinary actions, lack of clarity about the rules at issue and other reasons why a disciplinary penalty should not be so harsh).
Conclusion
If you are in need of assistance in the federal employee discipline process 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 Kimberly H. Berry, Esq.
One of the more typical types of retirement matters that our firm handles involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management (OPM).
Federal employees thinking about filing for disability retirement should consider the following five issues as they debate whether or not to proceed.
1. How Serious are the Federal Employee’s Medical Disabilities and are They Linked to Duties in Their Position Description?
When making a disability retirement decision OPM evaluates a federal employee’s continued ability to work with their medical condition in the context of the duties described in their position description. OPM uses the phrase “useful and efficient service in your current position” to describe the degree to which a federal employee can carry out their job duties.
If the medical disability is not considered serious enough, or not fully supported by medical documentation and evidence, then OPM may deny the disability retirement application.
2. How Long is the Medical Disability Expected to Last?
The duration of a medical disability is very important when OPM makes a disability retirement decision. OPM generally requires that a medical disability be expected to last at least 1 year.
When considering whether to file for disability retirement, it is important for a federal employee to consider the expected length of the individual’s medical disability. Disabilities with shorter durations can be problematic for federal employees in the disability retirement process.
3. Is it Possible for the Federal Employee to Survive on a Reduced Annuity? Read 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.
There have been at least 10 states that have legalized marijuana over the past 5-10 years. The change in state laws has led to significant confusion by security clearance holders about their ability to use marijuana while holding or seeking a security clearance.
States like Massachusetts or California have legalized marijuana, but marijuana use remains illegal under federal criminal law as a Schedule I drug. The state and federal conflict in laws has caused both confusion and problems for security clearance applicants or holders.
Security Clearance Rules Governing Marijuana Usage
Security clearance holders and applicants frequently run into security clearance problems under Guideline H of the Security Clearance Guidelines (Security Executive Agent Directive 4)Â because they don’t realize that the use of marijuana, even in a state that has legalized it, remains illegal under federal law.
I believe that these guidelines will be amended in the next 5-7 years to change the use of marijuana from a complete ban to an abuse standard, like with alcohol, but the issue remains a problem today for those in the security clearance world.
Additionally, the type of marijuana which is used makes no difference (e.g. candy form, chocolate, brownie, smoking) under the guidelines. We have seen individuals that have had security clearance problems stemming from eating a single gummy candy which contained the active ingredients of marijuana.
We have defended many security clearance clients who have engaged in the light (or even one-time) usage of marijuana, who have had difficulties in overcoming the presumption that even minor use makes one ineligible to hold or maintain a security clearance. If the usage was a long time ago, this can significantly help mitigate a security concern, but the trickiest situations arise when marijuana usage has occurred within the past year.
The key in such cases is to attempt to mitigate security concerns by showing abstinence, changes in attitude, changes in associations with friends that engage in drug use and counseling, where needed.
Guideline H of the SEAD 4 states that:
The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.
Mitigation of Marijuana Use Read More
This is a sponsored column by attorneys John V. Berry and Kimberly H. Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America in Reston that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Many individuals come to us when they receive a document referred to as a Statement of Reasons (SOR) which federal agencies issue to individuals when considering the denial of their security clearance. An SOR can be issued to federal employees or government contractors currently holding or seeking a security clearance.
What is a Statement of Reasons?
A SOR lists the factual basis for potentially denying an individual’s security clearance. The SOR will list individual security concerns and provide the individual an ability to formally respond.
Typically, a federal agency will issue the SOR to the individual following the development of a security clearance concern. Subsequently, this security concern will be reviewed by the federal agency’s security office and either be cleared or proceed formally through the clearance adjudication process.
The SOR is the key document to analyze when attempting to avoid an adverse security clearance decision. For federal employees, agencies will generally attach the SOR to a cover letter that references the agency’s intent to revoke eligibility for the employees’ security clearance and provide it directly to the employee. For government contractors, the government will typically issue the SOR through the employer’s security officer.
The following is an example of a SOR issued for a federal employee based on personal conduct:
STATEMENT OF REASONS
Guideline E, Personal Conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.
- a. On September 26, 2018 after a fellow employee accused you of theft in the office you engaged in aggressive physical conduct towards him and were subsequently detained by law enforcement.
- On September 27, 2018 you falsely recorded the amount of hours you worked on your weekly time sheet.
- On October 23, 2018, you lied to investigators when you falsely stated that you worked all of the hours you claimed on your weekly time sheet on September 27, 2018.
How to Respond to a SOR
If an individual receives a SOR, the key for a potential successful defense involves being able to refute the specific factual allegations or to mitigate them. This process begins with hiring an attorney to assist the individual in their response.
In the example above, since it is often the case that mistakes are made in SOR’s or that information is outdated, the first step is to determine from the individual whether the allegations themselves are true, i.e. whether they actually engaged in physical conduct, falsely recorded hours on their time sheet and/or was truthful with investigators during the investigation.
Accordingly, if the facts turn out to be true, the next task is to find out what mitigating factors could be helpful in explaining why the person should still be granted a security clearance.
To do this, one must review the National Security Adjudicative Guidelines for potential conditions that can mitigate the corresponding security concerns. Additionally, the Whole-Person Concept provides overall mitigation factors for security clearance matters.
This is a sponsored column by attorneys John V. Berry and Kimberly H. Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America in Reston that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Many Virginia employees have come to us to discuss the reasonable accommodation process when they develop a medical condition or disability that requires a change in their duties or other workplace adjustments. We advise and represent private, federal, state and county sector employees throughout Virginia in reasonable accommodation cases.
What is a Reasonable Accommodation?
A reasonable accommodation is an employee’s request to modify their employment conditions, assignments, hours, etc. to allow them to continue working in a position despite having a disability. Notably, the reasonable accommodation process applies to both employees and job applicants in all states, including the Commonwealth of Virginia.
Primarily, under federal law, the Americans with Disabilities Act (ADA), which applies to most employees, encompasses and outlines reasonable accommodations. More specifically, federal employees are also covered under the Rehabilitation Act, which incorporates similar protections as the ADA.
According to these laws, employers are required to engage in the reasonable accommodation process with qualified employees unless it would create an undue hardship for them.
In Virginia, many employees are also covered under the Virginians with Disabilities Act, which applies to most employers. Under both the federal and state laws, the goal of the reasonable accommodation process is to enable employees with disabilities the opportunity to enjoy an equal opportunity in employment. The Equal Employment Opportunity Commission (EEOC) provides guidelines for reasonable accommodation requests.
Requesting a Reasonable Accommodation
The most typical type of reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements.
Usually, an employee will ask for a reasonable accommodation by approaching their supervisor or human resources department, depending on the employer, and asking for one. Accordingly, a request for reasonable accommodation can be either formal or informal. For instance, depending on the employer, some have created specific forms covering reasonable accommodation requests; whereas, other employers simply involve informal verbal discussions between the employee and their immediate supervisor.
Regardless, once requested, there is usually a discussion about the reasonable accommodation requested. The discussion between an employer and employee is often called the “interactive process,” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request.
This process does not mean that an employer has to grant every accommodation sought (or even the specific one requested by the employee); rather, the employer is only required to make a good faith effort to accommodate a disabled employee.
There are far too many examples of reasonable accommodations to list here as they significantly vary based on an employee’s specific disability and their particular needs. However, the Job Accommodation Network provides examples of reasonable accommodations regarding specific medical conditions.
Conclusion
When an employee in the Commonwealth of Virginia needs to request a reasonable accommodation due to a medical condition, it is important to obtain legal advice and/or legal representation. Our law firm is ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process.
Should you need assistance in this process, please contact us by telephone at 703-668-0070 or through our contact page. Please also visit and like us on our Facebook and Twitter pages.
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 the most evolving areas of employment law today is how off-duty social media use is increasingly affecting employees and their employment. One of the most common misconceptions about employee off-duty social media use is that it is somehow protected by law and cannot subject an employee to discipline. In particular, there is a belief that the First Amendment protects speech made outside of work on social media.
This isn’t the case. The First Amendment generally does not protect this type of speech for private sector employees and only rarely does for public sector employees.
Recent Examples in the News
Some recent examples of the connection between social media and employment have made the news recently. In one example, a private school administrator was placed on suspension for making inappropriate comments to Attorney Michael Avenatti on Twitter. A second example involved a Dean at Catholic University who this week was suspended for making comments about a female complainant related to the Kavanaugh U.S. Senate Supreme Court proceedings on social media.
Few Protections for Employee Use of Social Media
We have seen similar kinds of social media use issues arise in workplace termination cases far more frequently these days. The use of social media by employees is generally not protected by the First Amendment which only protects individuals from government action, not actions of private employers.
Employees can be terminated for social media speech even if it was created with their private accounts and prepared after work hours. Many companies are increasingly receiving complaints about employees who make threatening or inappropriate comments on Facebook, Twitter or other social media outlets.
As a result, many employers are then taking disciplinary action against these same employees. As the law on social media evolves we may see some protections develop where an employer takes discriminatory action for a post or violates other state and federal laws.
However, right now there is little in the way of protections for employment actions taken due to social media postings.
As easy as it is for an individual to express an inappropriate comment on social media in a moment of frustration it is just as easy for someone who sees the comment to report it to an employer.
In this evolving world of social media and employment law, it is generally a good idea for employees to understand the thin line that exists between posting on social media in a moment of frustration and an employer taking disciplinary action against them.
Conclusion
When facing employment or wrongful termination issues in Virginia it is important to obtain the advice of and representation of an attorney. Our law firm advises and represents individuals in wrongful termination matters in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at 703-668-0070.
Please also visit and like us on our Facebook and Twitter pages.
