Alexandria, VA

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.

On October 8, 2019, the United States Supreme Court heard oral arguments as to whether or not Title VII of the Civil Rights Act of 1964 involving sex discrimination applies to LGBT employees.

The U.S. Circuit Courts of Appeal are currently split on the issue. Hopefully, the Supreme Court will focus on the text of the law, not politics, and do the right thing here. In my opinion, the Civil Rights Act clearly protects LGBT employees from employment discrimination based on sexual orientation and transgender status. The civil rights law was written broadly and anticipates other forms of sex discrimination.

The Three Cases

The Supreme Court heard three combined cases on the issue during oral argument. They involve 3 employees, two gay males and one transgender female. The two men were fired due to their sexual orientation and the transgender woman was fired from her employment because of her gender identity. A link to the synopsis on Scotusblog can be found here.

Common Sense Should Prevail

As with so many other issues in the law, common sense has been distorted through the various legal arguments. Most individuals know that “sex” discrimination is discrimination based on some aspect of sex. Those opposing the inclusion of LGBT employees from sexual discrimination protections have tried to twist the plain meaning of the statute’s wording by claiming it to be different than it reads.

To some, it could reasonably appear that LGBT employees are attempting to enlarge the definition of a law which was meant to protect women from sex discrimination back in 1964. However, the law was also meant to broadly define sex discrimination, which can happen to anyone, regardless of whether they are straight, LGBTQ or otherwise. Opponents have argued that gender identity, sexual orientation and sex discrimination have multiple different meanings in an effort to confuse the issue.

One of the arguments put forth seems to make the concept clear to me:

The argument before the Court is that sexual orientation discrimination is sex discrimination under Title VII, because when an employer fires a male employee for dating men, but does not fire a female employee who also dates men, the employer discriminates based on sex. 

History of Sex Discrimination Law is Non-Existent

Furthermore, Title VII’s ban on sex discrimination was a last-minute inclusion in the Civil Rights Act that was intended to scuttle the bill by former Congressman Howard Smith from Virginia. Apparently, Congressman Smith elicited laughter from his colleagues when he proposed this addition at the last minute. He must have been shocked when the sex discrimination law passed Congress.

As a result, the definition was left broad, without any hearings and debate to define it. Many courts and the EEOC have concluded that the law was intended to protect LGBT employees. Hopefully, the Supreme Court will do the right thing here. Nobody should be subject to sex discrimination.

A ruling, either way, is probably likely to be 5-4, either way. The swing justice is likely Justice Neil Gorsuch, who has taken the view that the text was clear in that sex discrimination could include these forms of discrimination. If the 3 employees prevail it will likely be because Justice Gorsuch and/or Kavanaugh rule with them. However, if the Court rules against LGBT employees, it will only be a matter of time before a future Supreme Court overrules them and the justices that supported this type of discrimination will be remembered poorly.

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.

0 Comments

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

By John V. Berry, Esq.

With the change in control of the Virginia House of Delegates and Senate, there is an opportunity to modernize employment laws in the Commonwealth of Virginia.

While there are a number of other suggestions out there already regarding the raising wages, right to work laws and other wage-related issues, I think that there are also some less contentious fixes that could offer employees enhanced protections.

Here are some suggestions for the Virginia Legislature to consider:

Enact a Whistleblower Law: Virginia has been one of those states where whistleblower laws for the private sector are nearly non-existent. Currently, there is no general statute where an individual employed in the private sector is terminated because of disclosures about illegal activities.

There has been a common-law cause of action known as a Bowman claim but the courts have long avoided holding employers accountable without a statute in place. We are hopeful that the legislature is able to accomplish this. New York has a very good law that protects private-sector employees from whistleblower retaliation that should be considered. NY Consolidated Laws, Labor Law – LAB § 740.

Add Sexual Orientation Discrimination to the Virginia Human Rights Act: The Virginia Human Rights Act does not currently protect workers from sexual orientation discrimination. It is past time for the Commonwealth of Virginia to change this. Doing so would only require a minor addition to VA Code § 2.2-3900.

Provide an Employee the Right to Dispute Termination Allegations: While Virginia and other jurisdictions remain at-will states, there is no reason why an employee should not be permitted to rebut false allegations made against them in a termination matter which have been placed on file with the employer. Massachusetts has an excellent law (MGL Ch. 149, Section 52C) on this subject which provides an employee a complete copy of their personnel file and the opportunity to negotiate what their final employment record will reflect.

Alternatively, the law provides the employee the opportunity to respond to negative termination allegations that would be kept in their employment file. If a third party requests information about the person’s former employment, both the termination letter and the former employee’s response would be provided, not just the termination letter. While amended recently, the Virginia Legislature would likely have to amend VA Code § 8.01-413.1 to accomplish this needed reform.

Revamp the Administrative Grievance Process for State/Public Employees: Presently, while there is a process that allows public employees to file a grievance and seek a hearing in termination cases, the truth is that the process is heavily slanted to the public employer. The hearing officers rule overwhelmingly on an employer’s behalf even when a termination is flawed. There is no reason why the hearing process cannot provide a level playing field for public sector employees. This would not require legislation, only changes and training at the hearing official level at the Virginia Office of Equal Employment and Dispute Resolution.

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.

0 Comments

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

Read More

0 Comments

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.

0 Comments

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 fired from their employment. Sometimes, our representation involves claims against the employer and/or negotiations and other times it involves the issue of how they obtain a new position in light of their termination.

The following are 7 tips to consider if an employee ever finds themselves in this particular situation.

Handle Termination Day Calmly

When an employee is terminated, it can be an extreme shock. Sometimes the reasons are known, sometimes the employee is specifically informed about the underlying issues, and other times they really cannot figure out why. In any case, it is very important to handle termination day with as much grace as possible.

Be calm, follow any reasonable instructions and be polite as you leave. Doing so will help the former employee in the future when they are applying for other work. We have represented many employees where termination day ended up badly and the employer made additional notes in their personnel record or even contacted the police.

If Wrongful Termination is Potentially Involved, Obtain Legal Advice

When an employee has been fired, it is important for them to consider all of their options. If there has been a potential illegal action taken by the employer against the employee (e.g. firing the employee for whistleblowing or based on illegal discrimination) it is important to get legal advice about whether or not to pursue any legal options about the termination.

If a wrongful termination exists, there may be ways for an attorney to resolve the matter with the company in a way that makes the employee more readily employable.

Where Appropriate File for Unemployment Compensation

If an employee is terminated unjustly, it can be worth it for them to apply for unemployment compensation while they are finding a new position. Sometimes, employers decline to object to compensation or fail to show up at such hearings. In many cases, employees can be awarded unemployment compensation even if they have been fired.

Prepare an Updated Resume

When an individual who has been fired starts the job search, it is important to work on their resume. Even though the individual has been terminated, it is important to update their resume and list all of their experience and any skills or education gained from the past employer. The sooner this is done, the quicker the ability to rebound becomes.

Write a Note to the Former Supervisor

While this may be difficult, writing a thank you note to a former supervisor can go a long way to mitigating what they may say to another employer. This can be difficult, especially if the employee was treated unfairly, but it can pay significant dividends in terms of future employability. Many supervisors, even if they fire an employee will feel some guilt in doing so.

If an employee responds with a kind letter to them, it can go a long way in mitigating any bad feelings. I find that when terminated employees take this step, many former supervisors will provide them recommendations when they apply for other positions.

Use Other Contacts as References if Needed

Sometimes a supervisor will not provide a reference for your prior employment. In that case, it is important to find others who can potentially vouch for an employee’s service during their prior employment.

For example, sometimes a former supervisor who is no longer with the employer is willing to provide a positive recommendation. In other instances, former co-workers can sometimes provide a recommendation as well.

Practice Job Interviews

When trying to get a new position after being fired, it is important to practice interview skills. It is also particularly important to be able to explain the termination if need be, and to provide other references. It is usually good advice to stay away from sounding defensive or vindictive toward the former employer in explaining the reasons for termination.

A calm and neutral explanation of the termination is usually the best strategy. However, practicing the delivery is very important.

Take an Interim Job if Necessary

Sometimes, when a termination is based on difficult facts for the former employee, it can be important to take a less than ideal employment position to bridge the gap from the termination.

Basically, in this type of situation, the employee takes a position that either doesn’t pay as much as they are used to or where they are overqualified in order to have a current position on their resume as they apply to their ideal position later. This often alleviates or minimizes future concerns from the prior termination.

Conclusion

If you are in need of employment law 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.

0 Comments
×

Subscribe to our mailing list