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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.

Early retirement is a consideration for many federal employees.

Federal agencies that are undergoing major organizational changes such as reorganization, reduction in force (RIF), reshaping, or downsizing can be given the option to offer federal employees voluntary early retirement based on the Voluntary Early Retirement Authority (VERA). The Office of Personnel Management (OPM) provides guidance on VERA here. VERA is the legal authority given to specific federal agencies so that they may offer early retirement options to employees.

VERA authority can provide a federal employee an opportunity to retire early with better financial options. In addition to VERA, federal agencies may also be given Voluntary Separation Incentive Payments (VSIP), which can range up to $25,000. OPM has published guidance on VSIP payments here.

VERA and VSIP were designed to assist agencies that need to implement organizational changes while also making it possible for federal employees to receive an immediate annuity payment years before they would normally be eligible. The voluntary early retirement provisions are the same under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS).

Federal Employee Requirements for Early Retirement for FERS and CSRS

In order to generally be eligible to retire under VERA, a federal employee must usually meet the following types of requirements:

  • The VERA minimum age and service requirements set by statutes in the U.S. Code for CSRS and FERS employees (i.e., the employee has completed at least 20 years of creditable service and is at least 50 years of age or has completed at least 25 years of creditable service regardless of age)
  • Continuous employment by a federal agency for at least 31 days prior to the date that the agency initially requested the Office of Personnel Management (OPM) approval of VERA
  • The federal employee may not have received a final removal decision based upon misconduct or unacceptable performance
  • The federal employee must hold a position covered by the agency’s VERA authority or program
  • The federal employee must exercise their option under the VERA option during the agency’s VERA acceptance period

Other requirements can apply, but these are the major ones. It is very important for federal employees considering a VERA/VSIP offer to seek the advice of an attorney regarding their retirement issues prior to initiating the VERA process.

Our law firm represents federal employees that are considering early retirement and other federal retirement matters. Sometimes VERA or VSIP considerations can come up during settlement discussions involving a proposed removal or removal action. Our website has additional information on retirement options.

Contact Us

If you are in need of federal employee retirement law representation or guidance regarding VERA (early retirement) or VSIP (early retirement incentives), please contact our office at 703-668-0070 or through our contact page to schedule a consultation.

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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.

There are several important issues federal employees should consider when deciding whether to pursue an Equal Employment Opportunity (EEO) complaint against a federal agency or supervisor.

Potential EEO Claims

Federal employee EEO complaints can involve a range of discriminatory conduct by federal agencies, including discrimination on the basis of age, disability, race, religion, sex, pregnancy, genetic information and national origin. In addition, EEO complaints can also involve hostile work environment, sexual harassment and retaliation.

Example EEO Complaints

Some typical EEO claims brought by federal employees are demonstrated in the following five hypothetical scenarios:

  • Example A: Federal employee is sexually harassed at work by her supervisor. When the federal employee refuses her supervisor’s overtures, she then receives a suspension from the same supervisor. The federal employee brings a claim for sexual harassment.
  • Example B: Federal employee has previously filed an EEO complaint against his supervisor. A year later, the federal employee discovers that his promotion was denied by the supervisor because the supervisor was upset that the federal employee had filed an EEO complaint. The federal employee brings a claim for retaliation.
  • Example C: Federal employee takes sick leave related to treatment for cancer. Upon the employee’s return, his supervisor gives the employee a bad performance evaluation for taking too much time off. The federal employee claims disability discrimination.
  • Example D: Federal employee takes sick leave related to a recent car accident and requires a lot of time out of the office for physical therapy. The federal employee is also unable to perform some of her duties as she recovers, including the lifting of boxes for a limited period of time. The federal employee asks her supervisor for modifications to her duties (a reasonable accommodation), but the supervisor refuses to modify the employee’s schedule. The federal employee claims disability discrimination for her agency’s failure to accommodate her serious medical condition.
  • Example E: 65-year-old federal employee is competing for a promotion to a GS-15 position. Federal employee competes against two other employees, under the age of 40, for the same position. The 65-year-old federal employee is not selected for the position. He later discovers that the selecting official expressed concerns that may have impacted his decision, namely that the 65-year-old applicant might retire sooner than the other two younger applicants. The 65-year-old federal employee claims age discrimination.

EEO Complaint Deadline

Typically, a federal employee only has 45 days from the date of discrimination in which to contact an EEO counselor at the federal agency to initiate the EEO complaint process. If a complaint is not timely initiated, the federal employee may be time-barred from filing the EEO complaint.

EEO Remedies

Remedies for illegal discrimination and retaliation caused by federal agencies and managers involve several types of potential monetary relief, including lost back pay, compensatory and punitive damages, and attorneys’ fees. Non-monetary remedies can include the clearing of negative performance records and disciplinary actions, transfers and promotions.

The EEO Process

Typically, once a federal employee initiates contact with an EEO counselor regarding an informal complaint, assuming there is no earlier resolution or settlement, the next steps include: (1) the filing of a formal EEO complaint, (2) the investigation of the EEO complaint, (3) either a request for a decision on the EEO complaint from the federal agency or a request for a full hearing before a federal administrative judge and (4) proceeding to a hearing on the merits. Most discrimination cases are settled with federal agencies before the EEOC hearing stage. In fact, most cases settle at mediation with the federal agency early in the EEO process.

The EEO and MSPB processes can be intertwined, especially in removal cases. In some cases, federal employees may have what is known as a “mixed” case appeal that would also be appealable to the Merit Systems Protection Board (MSPB), so it is important to obtain advice from counsel.

Additional EEO Information

Federal employees can find more detailed information about filing EEO complaints at the Equal Employment Opportunity Commission’s (EEOC) website.

Contact Us

Our law firm represents and advises federal employees in EEO and other employment matters. If you need legal assistance regarding an EEO complaint or other employment matter, 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

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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.

Approximately over 20,0000 federal employees are subject to formal discipline a year. Our nationwide federal employee lawyers represent federal employees in disciplinary cases. Each disciplinary action defense is different and requires careful planning.

Disciplinary Process for Federal Employees

There are various types of disciplinary actions for federal employees. They include letters of counseling, reprimands, suspensions, demotions and removals. For most serious disciplinary actions, referred to as adverse actions, a federal employee will first receive a notice of the proposed discipline and the opportunity to respond. A proposal will typically have an explanation of the conduct or issues leading to the proposed disciplinary action.

If a federal employee is issued a notice of proposed disciplinary action, they will have the opportunity to contest it before it becomes final. A federal employee can choose to provide a written response, an oral response or both. We often recommend providing both oral and written responses.

Request Disciplinary Materials

In most disciplinary cases, it is important for federal employees to request all of the materials that have been relied upon by the agency in proposing the discipline. We request these materials before responding on behalf of federal employees at the beginning of a case.

Draft a Written Response

It is important to prepare a full written response to the allegations in proposed disciplinary cases. These responses are typically 5 to 20 pages in length, depending on the underlying facts. Most written responses are typically due anywhere from 7 to 30 days after a proposal is given to a federal employee. We also attach exhibits to these responses, including supporting evidence, good performance records and character support letters.

Present an Oral Response

The oral response portion of a federal employee’s response can be very important. While written responses can be key to refuting specific allegations, there is something very important about personally meeting with the person that will make the decision. We think that in serious cases, oral responses can make a significant difference in outcomes. We represent federal employees during oral responses.

Appeals

If an unjust disciplinary decision is sustained by a federal agency, there are various options for federal employees to appeal further. If serious enough, an individual can appeal to the Merit Systems Protection Board (MSPB). Other potential appeals can include filing Equal Employment Opportunity complaints or whistleblower appeals, where applicable. There are also a number of other types of appeals that can be brought, but legal advice is important when making such decisions.

Conclusion

When a federal employee receives a proposed disciplinary action, it is important to have an attorney represent or advise them from the beginning. Our lawyers represent federal employees nationwide in all types of federal employee discipline. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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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.

In a move that will affect Virginia executives and employees, it appears that the Federal Trade Commission (FTC) is considering new regulations to curtail the use of non-compete agreements. Non-compete agreements limit the ability of employees to work for potential competitors or start their own businesses.

The President issued an Executive Order in July 2021 urging the FTC to consider limiting the unfair use of non-compete agreements that unfairly limit worker mobility. It now appears that the FTC is on the verge of taking action.

Non-compete agreements in recent years have gotten out of hand, with some companies barring even fast food workers or coffee baristas from taking similar positions elsewhere. Traditionally, non-compete agreements were reserved for very senior-level executives, but the practice has now been extended to all types of employees.

Lina Khan, the Chairperson of the FTC, recently told the Wall Street Journal, “We feel an enormous amount of urgency given how much harm is happening against the workers. This is the type of practice that falls squarely in our wheelhouse.” While non-compete agreements have typically been controlled by state law, it is time for action on the federal level. Locally, in 2020, Virginia exempted low-wage workers from non-compete agreements; this was a move in the right direction.

Many lawyers who draft non-compete agreements disagree with the FTC taking any action to limit them. Our firm represents executives and employees who have been issued unfairly broad non-compete agreements, and we believe that the FTC should take action to limit this practice.

Contact Us

If you are employed in Virginia and have signed or are considering signing a non-compete agreement, you should seek the advice of a qualified Virginia employment lawyer. Please contact our office at 703-668-0070 or through our contact page to schedule a consultation.

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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.

We have represented many security clearance holders in security clearance cases involving alcohol usage. The recent COVID-19 pandemic has not helped as many people have engaged in more alcohol usage while working from home offices. In our experience, one of the most common issues that has arisen over the past few years in the context of security clearance holders or applicants involves alcohol abuse or over-consumption.

Alcohol Consumption/Abuse by Cleared Employees or Applicants

Under the security clearance guidelines, alcohol over-consumption and abuse can be a major factor in determining whether a person obtains or keeps their security clearance.

Security concerns regarding this issue fall under Adjudicative Guideline G, Alcohol Consumption of Security Executive Agency Directive (SEAD) 4. These are the guidelines that apply across the Government for security clearance holders.

Alcohol security concerns can come into play when an individual has a major alcohol-related incident. The most common issue that begins a security clearance review is a recent alcohol-related traffic incident, such as being arrested for driving under the influence. A recent event gives security clearance officials pause and makes them ask the question of whether or not it is an isolated incident or something more serious.

Security Concerns Raised by Alcohol Abuse or Consumption

When security clearance issues arise involving alcohol abuse or over-consumption, it is very important to take them seriously.

The major security concern for federal agencies that evaluate security clearances is that excessive alcohol consumption can lead to the use of questionable judgment or the failure to control impulses, both of which are not considered acceptable for purposes of access to classified information. As a result, the Government has listed alcohol-related concerns that could cause one to lose (or not get) a security clearance. Quoting from SEAD 4, these include:

“(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use disorder

(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others, regardless of whether the individual is diagnosed with alcohol use disorder

(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder

(d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder

(e) the failure to follow treatment advice once diagnosed

(f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder

(g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence.”

How to Mitigate Alcohol-Related Security Concerns

The Government has established a number of ways in which a security clearance holder or applicant can mitigate alcohol-related security concerns. They include, but are not limited to, the following:

  • A significant amount of time has passed since the alcohol-related incident
  • The alcohol usage or related incident was unusual and/or is unlikely to happen again
  • The individual acknowledges their alcohol issue and provides evidence to show that they have overcome it or are seriously working on the alcohol issues through treatment
  • The individual has completed a treatment program and established a pattern of modified consumption or abstinence

Alcohol consumption security clearance issues can involve many different variables so seeking experienced counsel is critical; every case is different. The key for successfully handling alcohol-related security clearance issues is to focus on them as early as possible.

Contact Us

If you are in need of security clearance 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.

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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.

Our lawyers represent federal employees in federal employee grievances nationwide. Each federal agency has their own unique grievance procedures, and it is important to have counsel familiar with the differences.

Grievance Process for Federal Employees

Federal employees typically use a grievance when they want to challenge an action at work (e.g., discipline, performance, treatment at work). The main purpose in filing a grievance is to resolve an employment dispute through compromise (where possible) or by having a senior-level supervisor reverse an earlier decision.

Two Types of Grievances

There are usually two types of federal employee grievances, one filed through union grievance procedures and one through a federal agency’s administrative grievance process. Those not eligible for union grievance processes are often able to file their grievance through the administrative grievance process. Before a federal employee files a grievance, it is important to consult with a lawyer.

Drafting the Grievance

Depending on the applicable administrative grievance policy or union collective bargaining agreement, the first step in the grievance process can vary. Many grievance policies require that a federal employee notify a supervisor verbally of the grievance prior to filing a written grievance. Other grievance procedures require that a written grievance be filed first in order to start the process.  

Following the Steps of the Grievance Procedure

Depending on the federal agency, a grievance can include anywhere from 2-5 different steps in the process. Usually, a written grievance is followed by a meeting to discuss or present the grievance in person. When we represent federal employees in grievances, a lawyer presents the grievance, and the federal employee also speaks in order to provide key facts in the dispute. Usually, at the end of the grievance meeting, we will present a proposal to resolve the grievance. Following the grievance presentation, the federal employee’s counsel will usually hear back informally about the proposed resolution or the federal employee will receive a written decision on the grievance itself.

In our experience, a successful grievance resolution requires compromise by both parties. After each of the steps, the grievance generally moves to a higher-level supervisor as it progresses through the process.

After a Grievance Decision

If a grievance is not resolved at the end of the grievance process, many federal agency policies: (1) allow federal employees to request arbitration through their union (usually just in union-based grievance procedures), (2) provide federal employees the right to request an administrative hearing on the grievance, or (3) provide additional rights for review. It is important to understand how an applicable grievance procedure works for a particular federal agency prior to filing a grievance.

Conclusion

When a federal employee is considering filing an administrative or union grievance, it is important to have an attorney represent or advise them. Our law firm represents federal employees in the different types of grievance processes. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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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.

When federal employees are fired, demoted, suspended, face Whistleblower issues, retirement problems, military discrimination or a host of other civil service issues they often can take their cases to the Merit Systems Protection Board (MSPB).

The MSPB is an administrative court that functions much like a civil court for federal employee claims. Here is a summary of the MSPB process, which varies depending on the type of claim.

Filing an MSPB Appeal

The first step in the MSPB appeals process is for a federal employee to file a MSPB appeal. For most types of cases that the MSPB hears (e.g., those involving removals or severe suspensions for federal employees), the deadline to file an appeal is typically 30 days from the effective date of the decision. It is critical to timely file an MSPB appeal or it will most likely be dismissed. Appeals are mostly filed electronically these days through the MSPB e-Appeals website. Different deadlines may apply for some whistleblower, military discrimination and other types of cases so having counsel is very important in MSPB cases.

Receipt of the Acknowledgment Order

Usually, within a week of filing an MSPB Appeal, an administrative judge will be assigned and issue an Acknowledgment Order setting the ground rules and timelines for the appeals case. Of key importance are deadlines to conduct depositions and/or seek documents related to the case from a federal agency. In some cases, the order may also require the federal employee to prove that the MSPB has jurisdiction (i.e., can hear the case) over their case or to require a federal employee to respond to other issues in the appeal.

The Agency Files a Response to the Appeal

Usually, 20 days after the issuance of the Acknowledgment Order, the federal agency involved in the appeal is required to provide their case file to the MSPB administrative judge and the federal employee. This file will include the documents related to the federal agency’s case and also their initial response to the Appellant’s appeal. The file is often helpful for use in the case.

Settlement

The attempt to settle an MSPB appeal can happen at any point of the MSPB appeals process. We often find that it takes place most often before or slightly after the discovery process. The settlement process at the MSPB can take many forms: (1) informal settlement talks between the parties; (2) MSPB settlement judge involvement; or (3) the Mediation Appeals Program at the MSPB. It is very important to focus on settlement early in the process, where appropriate.

Discovery (Seeking Documents and Taking Depositions)

In most cases, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit initial discovery requests to each other if they choose to engage in discovery. The discovery stage is very important as it is the federal employee’s chance to obtain documents, correspondence, emails, video, data or audio in the agency’s possession which can be used to help the federal employee during the hearing. One of the most important aspects of discovery is the ability to question federal supervisors or others, under oath, in depositions. Depositions by a federal employee’s attorney can lead to very important information which can be used in a federal employee’s appeal.

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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.

Security clearance holders are expected to self-report security issues or incidents that may impact their ability to hold a security clearance.

Security Executive Agent Directive (SEAD) 4 is the applicable guide for clearance holders to determine whether a new incident or development touches upon a security concern which triggers a duty to self-report. Self-reporting is required and not doing so can cause harm to a security clearance holder. Furthermore, it is generally much better to be proactive in disclosing reportable events than for them to be discovered later.

Disclosing security incidents prior to them being discovered by clearance investigators can be considered a potential mitigating factor. Of course, there is also often many concerns in reporting security incidents by clearance holders which should be answered by an attorney experienced in security clearance law. Following legal advice, the usual first step in disclosing a new security concern involves contacting the individual’s security officer.

For example, if an individual is arrested for driving under the influence, it would be important to reach out to the security officer for guidance and first steps. The security officer may ask the individual to complete a form known as the SF-86C or other documentation to document the concern.

Timing is important. Self-reporting security incidents should be done, in many cases, as soon as possible. There are several examples of types of incidents that should be reported.  The following are just a few examples which may trigger the duty to report a new security issue:

  • Financial Issues — Reporting negative financial circumstances such as bankruptcy, state or federal tax liens or unusual adverse financial debt issues.
  • Arrests — Reporting any arrest, even if charges were not ultimately filed.
  • Marriage — Reporting marriages, other new serious relationships or changes in co-habitation.
  • Psychological or Substance Abuse Counseling — Reporting certain mental health and substance abuse issues impacting judgment or reliability.
  • Illegal drug use — Reporting the use of marijuana and other drugs still considered illegal on a federal level.
  • The Loss or Classified Information or Technology — Reporting inadvertent or accidental loss or compromise of classified or other sensitive information.
  • Foreign Contacts — Reporting unusual or substantial foreign contacts, especially those where classified or sensitive information is sought by the foreign contact.
  • Foreign Travel — Reporting travel outside the United States (other than for official business).

There are countless of other types of incidents that may need to be reported to a security officer, so if an individual has any questions it is often advisable to get legal advice as soon as possible. The Defense Counterintelligence and Security Agency (DCSA) has issued a notice which helps outline the self-reporting obligations of security clearance holders.

Contact Us

If you need assistance with a security clearance 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.

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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 Melissa L. Watkins, Esq.

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445).

The law took effect immediately and was approved with overwhelming support in the House of Representatives, with a vote of 335 to 97. The Senate followed suit, passing the law, without amendment, by voice vote. This new law is more than just giving victims of sexual harassment and assault “their day in court.” It’s also about forcing employers to put more effort into addressing sexual assault or harassment claims.

What is Forced Arbitration?

Forced arbitration is a controversial employment practice that is used by many employers requiring employees to arbitrate legal disputes with the company rather than going to court. Forced arbitration occurs when an employer conditions initial employment, continued employment, or important employment benefits on the employee’s agreement to arbitrate any future claims against the employer.

Companies use such arbitration agreements to bar access to the courts for all types of legal claims, including employment discrimination and sexual harassment claims. If an employment right protected by a federal or state law has been violated and the employee has signed a mandatory arbitration agreement, that employee does not have access to the courts and instead must handle the claim through the arbitration procedure set out in the arbitration agreement that she or he was required to sign.

Some of the downsides of an employee being forced into arbitration (instead of going to court) often include higher costs/fees for employees, less opportunity to obtain key evidence in preparation for cases and the employer’s ability to force a less convenient location (i.e. in another state far away) for the arbitration; many other downsides exist.

What Does the Law Change?

The law allows an employee alleging sexual harassment or sexual assault in the workplace to opt out of the pre-dispute arbitration agreement. However, the law only applies to disputes that arise after March 3, 2022. In other words, the new law does not apply to sexual harassment or sexual assault claims that occurred prior to March 3, 2022. However, this new law applies regardless of when the employee may have signed an arbitration agreement.

What Does the Change Mean for Employees?

Employees should understand that arbitration agreements are not automatically invalid as a result of the new law, but an employee can choose to avoid them where the law applies. The employee, not the employer, now gets to choose whether to litigate their sexual assault or harassment claims in court or through arbitration.

Often, employees alleging sexual assault or sexual harassment also allege other claims, such as discrimination or retaliation. Given the recency of the law, it is not yet fully known whether the law will allow all claims brought in a case involving sexual harassment or sexual assault, including discrimination and retaliation, to avoid an arbitration agreement.

However, given the wording of the law, referring to “cases” and not just “claims” it is likely that the law will allow employees to bring all claims in a case, even those not involving sexual harassment, into court rather than arbitration.

It is also important to note that even if an employee does not wish to sue in court, the employee can still raise a claim with the Equal Employment Opportunity Commission (EEOC). We have also included a link to the EEOC table showing the number of claims involving sexual harassment in the private sector filed since 2010. These numbers illustrate just how pervasive this problem is in workplaces throughout the country.

There are multiple ways in which an employee can going about raising such concerns and speaking with experienced legal counsel can allow you to evaluate all of your options. This new law is just the first step in freeing employees from forced arbitration in sexual harassment and assault cases.

CONTACT US

If you are an employee in need of employment law 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 and Twitter.

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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.

Virginia, the first state to enact COVID-19 workplace rules in July of 2020, has now become the first state to end them.

The action was taken following a vote on March 21, 2022, by the Virginia Department of Labor and Industry’s (DOLI) Safety and Health Codes Board (Safety Board). Under the previous standards, Virginia employers had a number of requirements with respect to COVID-19, including indoor masking in higher-risk areas and reporting COVID-19 outbreaks to the Virginia Department of Health. These standards have been rescinded.

Workplace safety is governed by both the federal Occupational and Safety Health Administration (OSHA) and state and local rules. States, like Virginia, with workplace safety agencies are required to have rules that are at least as effective as those set by OSHA.

OSHA originally attempted to enact rules regarding COVID-19 vaccines and COVID-19 testing, but the effort was dropped after being blocked by the Supreme Court. As a result, employers now remain subject to various state and local regulations with respect to COVID-19 issues.

New Guidance for Employers

While the prior rules are ending, new guidance is being finalized. Virginia employers still remain subject to workplace safety rules by DOLI, Virginia Occupational Safety and Health Programs (VOSH). VOSH has just proposed draft guidance for general health and safety rules concerning COVID-19 in the workplace.

The draft guidance, 5 pages in length, provides expectations for Virginia employers for handling COVID-19 employment issues, including, but not limited to:

  1. Encouraging employees with COVID-19 symptoms to stay home
  2. Assisting employees seeking to get vaccinated or in receiving booster shots
  3. Requiring employees infected with COVID-19 to stay home
  4. Providing employees masks or coverings as appropriate

There are many other items in the draft guidance, that employers and employees should review. The draft rules are still under review and the public may comment beginning March 28, 2022, until April 27, 2022.  It is likely that the draft rules will mostly remain the same as the final rules eventually issued.

Employers generally have the legal right to adopt safety and health workplace rules for employees that are more stringent than the guidance per the Code of Virginia.

Contact Us

If you are a Virginia employee in need of employment law 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 and Twitter.

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