For decades, federal agencies faced a familiar challenge: what do you do when a trusted employee breaks your trust by engaging in serious misconduct? The long-standing answer has been that you navigate the adverse action process, many view as cumbersome, time-consuming and often falling short of resolving the problem. The process leaves some involved wondering about an apparent incongruity: if a job candidate with a recent past of employment misconduct, such as time theft, would be found unsuitable by the agency’s security office and never even allowed to start working for the government, why is time theft by a trusted employee not considered a suitability concern?
The reason is that legal and regulatory authorities have historically drawn a distinction between suitability authorities and adverse action authorities based on when an individual’s misconduct occurred. If conduct occurred before hiring, suitability authorities could come into play. If it happened after an employee entered federal service (post-appointment), suitability authorities were generally not available and agencies typically relied on traditional adverse action procedures.
A recent Office of Personnel Management (OPM) update to the federal suitability regulation at Title 5, Code of Federal Regulations, part 731 (5 CFR 731) has now flipped the script. OPM’s update to 5 CFR 731 gives the agency authority to take suitability actions based on post-appointment conduct. While the change may sound technical,...
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