Ins and outs of suitability determinations

We posted a news update last week about how Trump’s hiring freeze will affect new federal employees who have not yet been deemed suitable for employment. Read below to learn more about suitability determinations.

Who is required to undergo suitability determinations?

Positions requiring a suitability determination are those in the competitive service, positions in the excepted service where the employee can be noncompetitively converted to the competitive service, and career appointments to a position in the Senior Executive Service. The Office of Personnel Management (OPM) is tasked with making suitability determinations for new federal employees.

Making suitability determinations

The following factors are considered in determining whether an individual is suitable for federal employment:

  • Misconduct or negligence in employment;
  • Criminal or dishonest conduct;
  • Material, intentional false statement, or deception or fraud in examination of the appointee;
  • Alcohol abuse, without evidence of substantial rehabilitation;
  • Illegal use of narcotics;
  • Knowing or willful engagement in acts or activities designed to overthrow the U.S. government.

What else will OPM consider?

OPM may also consider the following:

  • The nature of the position for which the person is applying for;
  • The nature and seriousness of the conduct;
  • The circumstances surrounding the conduct;
  • The recency of the conduct;
  • The age of the person involved at the time of the conduct;
  • Contributing societal conditions;
  • The absence or presence of rehabilitation or efforts towards rehabilitation.

Can suitability be challenged after appointment?

Yes! OPM may initiate a suitability action at any time. OPM is required to notify an employee in writing of the proposed action, and allow the employee to respond in writing. You are permitted to hire a lawyer if you are facing a proposed suitability action.

Successful suitability cases

  • We were retained by a recent college graduate who received a job offer from the federal government. On his suitability questionnaire, he honestly disclosed his prior drug use and arrest for underage drinking. The government found him unsuitable for federal employment. Our firm submitted a response, arguing that the client had been completely rehabilitated. He graduated from college with honors, was an excellent employee at his prior job, and had a new group of friends. We also emphasized that recreational drug use was very common among college-aged people. The government reversed its decision and allowed our client to begin his job.
  • U.S. Customs and Border Protection – A federal employee with over 8 years of federal service contacted us after she received a proposal to remove her from her position and the federal service due to a negative suitability determination based on allegations that she had engaged in misconduct/negligence in employment and dishonest conduct related to her disclosures in her job application. We submitted a written response demonstrating that she had in fact provided honest disclosures and many of the cited incidents were verbal warnings that did not require disclosure. Based on this submission, the agency reinstated her and determined that our client had illustrated that she did not commit the infractions alleged.
  • Peace Corps – A federal employee contacted us after receiving a proposal to terminate his employment as a result of an adverse suitability determination based on allegations that he made material, intentional false statements on his declaration for federal employment. We submitted a response to the proposal demonstrating that the employee misunderstood a particular question and believed that he had responded truthfully on his declaration for employment. The agency overturned the adverse suitability determination and cancelled his proposed removal.

If you have questions about suitability determinations or if you are facing a purposed action, contact Alan Lescht and Associates today. Call us at (202) 463-6036, or send us an email.

Check back next week for a discussion of security clearances.

Sexual harassment: Recognizing signs in the workplace

Sexual harassment is illegal under federal law and under many state and local laws. It is something no worker should ever have to experience. Unfortunately, it happens in workplaces all over the country.

It can be difficult to identify. Victims may feel helpless and embarrassed, and they may question if what they are experiencing is truly sexual harassment.

Sexual harassment can take many forms

Let’s take a look at some types of actions and behaviors that may be considered sexual harassment:

  • Repeatedly asking a coworker out on a date
  • Making comments about a colleague’s appearance
  • Inappropriately touching a coworker (rubbing, hugging, patting, purposely rubbing up against, etc.)
  • Sending suggestive emails, instant messages, or text messages to a coworker
  • Displaying pornography or other inappropriate images or videos at work
  • Asking questions about a coworker’s sexual orientation, sexual experience, love live, etc.

Sexual harassment can occur between two colleagues or between a colleague and a superior. In either case, it is illegal.

Employers must take immediate action

As soon as a supervisor becomes aware of sexual harassment, he or she must take immediate action to address the behavior. If a supervisor fails to do so, the employer may be liable.

In some cases, an employer will retaliate against an employee who complains about sexual harassment by demoting or firing him or her. This is illegal.

It is advisable for victims to speak to an attorney who handles workplace harassment cases. Victims should learn about their rights, legal options, and options for seeking compensation.

Contact Alan Lescht and Associates today, if you believe you have been sexually harassed at your job. Your consultation is completely confidential.

Age discrimination: Recognizing signs in the workplace

Age discrimination lawyers

In a perfect world, employees would be hired and evaluated based on their knowledge, skills, and work ethic. Unfortunately this doesn’t always happen. Discrimination in its many forms can make for a toxic work environment – affecting the victim of discrimination as well as other employees and the workplace as a whole. Age discrimination is one type of workplace discrimination that is illegal under the Age Discrimination in Employment Act (ADEA), as well as under many state and local laws. This type of discrimination occurs when an employer treats an employee unfairly because of the employee’s age. Unfortunately, age discrimination can be hard to prove, and sometimes it can be hard to recognize.

Common examples of age discrimination

Here are some common examples of age discrimination in the workplace:

  • Promoting a younger, less experienced or less qualified employee
  • Paying older employees less than younger employees for the same job
  • Making jokes or comments about an employee’s age
  • Excluding an employee from certain meetings or activities because of his or her age
  • Suddenly giving an older employee a bad review or scrutinizing his or her work
  • Pressuring an employee to retire (or questioning an employee about retirement plans)
  • Using age-specific words in a job description (for example, “join our young and dynamic team”)

If you suspect that you are experiencing age discrimination, you should speak to an attorney. An attorney from our firm can initiate a full investigation of your case and help you determine a course of legal action.

Remember: Age discrimination is wrong and it is illegal – and victims may be eligible for monetary compensation.

Contact Alan Lescht and Associates today if you have experienced age discrimination at work. For a free phone consultation, please call 202-463-6036.

Are federal workers just faceless bureaucrats?

“Federal employees support our troops stateside and abroad, fight crime and terrorism and protect our borders. They combat forest fires, inspect our roads and bridges and ensure our aviation system is the safest in the world. They guard and enhance our national parks and lands, guarantee seniors receive their Social Security benefits and process and deliver mail to every address in every type of weather.”

The answer to the question posed in the title of this post is an emphatic “No!”

Kori Keller, in an opinion published on The Hill, laments President Trump’s executive order that put a hiring freeze on federal workers. We’ve covered this in our handy infographic on the hiring freeze, but Keller makes a few interesting points, such as that federal workers represent only 1.9 percent of the national workforce. And, contrary to Trump’s rhetoric about “draining the swamp,” these 1.9 percent of federal workers aren’t just in D.C. – they’re all over the country performing vital functions.

Think mail carriers and forest rangers and firefighters. It’s not “just” those who work in office settings (which, by the way, is also the setting of millions of Americans working in the private sector).

As we wrote on our infographic post (see link above), there could be many unintended consequences to federal employees, even those who still have jobs, which brings us to the next point in this post.

At-will employment in the federal sector?

If this executive order was the first step in the Trump administration’s efforts to “drain the swamp,” you’ll now find in the National Review a call to make all federal employees fire-able. “There shouldn’t be a permanent bureaucracy that can thwart the will of a president,” Grant Starrett argues. “Congress should pass a law to make all federal employees serve at will – just like Americans in the private sector.”

In his article, Starrett makes lots of references to faceless “bureaucrats,” as though they weren’t those who Keller defends. It’s one opinion against another, but when it comes to treating people with dignity, and not assuming they’re part of a swamp, Keller’s opinion and others like it should win out every time.

Read more:

Why the EPA could be federal workers’ ground zero

The Government Accountability Project might be busier now than ever before. The organization backs whistleblowers. In recent days, it has dealt with an influx of concerns and questions brought to them by federal workers facing the Trump administration. Take acting Attorney General Sally Yates’ firing as a prime example of the bad that can happen for refusing to follow executive orders.

Yates had ordered the DOJ not to defend Trump’s immigration ban. Trump fired Yates that same night. As Politico reports – and as you’d expect – the largest group of federal workers who’ve called the Government Accountability Project are those who “want to know what to do if they’re asked to violate the law.”

On that note, we turn our attention to the Environmental Protection Agency.

Trump’s nominee is a ‘leading advocate against the EPA’s activist agenda’

A Bloomberg article raises the possibility that lawmakers could decide to eliminate the Environmental Protection Agency, although the authors acknowledge that doing so – even in the Trump era – is easier said than done, owing to decades of regulations that stand in the way. In all likelihood, Trump and lawmakers will opt for a more straightforward route toward their goal of less environmental regulation.

On this route, Trump has an ally in Scott Pruitt.

Pruitt is Trump’s nominee to head up the agency. Though not yet confirmed, Pruitt would reportedly assist in “undoing” Obama’s environmental regulations. He’d also presumably pave the way for more coal plants. Pruitt’s background as Attorney General of Oklahoma and “leading advocate against the EPA’s activist agenda,” as per an archived version of his official website, would make him the man for the job.

To make a long story short

It’s not hard to imagine EPA employees in a bind, caught between carrying out the agency’s mission of environmental protection and following the new boss’s orders (and suffering the workplace retaliation that could come from refusing to do so). The EPA, in other words, could become ground zero for federal workers in other agencies nationwide who may soon face new bosses barking unreasonable – perhaps unlawful – demands.

Read more:

No such thing as nepotism in the Trump administration

Politico reports that the Justice Department has “blessed” the appointment of President Trump’s son-in-law Jared Kushner to a position as senior adviser in the White House, saying, in effect, that federal anti-nepotism law does not apply.

It seems to apply just about everywhere else – just not the White House.

What is nepotism, anyway?

Merriam Webster defines nepotism as favoritism based on kinship. In nepotism, a person in a position of power appoints or hires a family member wholly or in part because of those family ties.

In this case, Trump seeks to appoint Kushner to a senior adviser role, in which, among other things, Kushner would apparently work to resolve the Israeli-Palestinian conflict.

Is the President a public official?

Of course he is. Even the anti-nepotism law says so. In general, this law places hiring restrictions on public officials. And, yes, “public officials” includes the President and Congressional members.

Under 5 U.S. Code § 3110: “A public official may not appoint or employ […] in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.”

The language seems relatively clear, but like many laws (perhaps most), this one is subject to interpretation. It so happens that, in this case, the Justice Dept. interpreted the law in favor of the Trump administration. Its 14-page opinion argues that the law does not apply to the White House itself, as Politico reports, citing a 1978 law that gives the President wide latitude in appointing White House officials.

What does this mean for everyone else?

It now appears that Trump is free to appoint his son-in-law to a role in the White House, where the 36-year-old Kushner will presumably go from real estate developer to broker of peace among nations. Kushner’s “unwavering loyalty” to his father-in-law (as per Kushner’s Wikipedia page) will undoubtedly be a great asset to the new President.

But that doesn’t mean nepotism isn’t at issue here, at least where the law is concerned.

After all, it’s highly unlikely that Mom or Pop, as public officials in any other agency in any other place in the U.S., could so readily hire Son or Daughter to serve as a government employee in a similar manner. Doing so would likely violate anti-nepotism law.

Timely security clearance investigations are a focus for NBIB in 2017

In September, we wrote about changes coming to the federal security clearance system, namely the new National Background Investigations Bureau, which replaces Federal Investigative Services, and how for many federal employees and contractors, getting (and keeping) the proper security clearance is necessary to doing their jobs.

NBIB Director Charlie Phalen weighs in

More recently, the Federal Times in November reported on the NBIB director’s take on what his role and priorities will be in 2017 and beyond. Director Charlie Phalen, a former CIA security director, wants to re-establish confidence in investigations, as Carten Cordell writes.

Lack of confidence in investigations

This lack of confidence stems from the 2013 Navy Yard shooting perpetrated by Aaron Alexis, which commentators opined could have been prevented with a strengthened security clearance system, as well as the 2015 data hack of the Office of Personnel Management, which left vulnerable the personal data of 21+ million federal employees and contractors.

Existing backlog vs. timeliness of adjudication

Plus, there’s the existing backlog of hundreds of thousands of security clearance cases (more than 500,000) waiting to be completed. But Phalen isn’t concerned with the backlog. “The real relevant number is 40 or 80,” referring to the number of days it should take to adjudicate a federal employee’s or contractor’s security clearance. “So we are truly focused,” Phalen said, “on what is the timeliness and how can we get back to our standard for getting these background investigations adjudicated.”

Problems with your security clearance? Contact Alan Lescht & Associates, P.C.

Despite the upcoming changes to the security clearance system, federal employees and contractors will very likely continue to face the same types of issues they’ve faced in the past. Your security clearance may be at risk. It may also have already been suspended or even revoked. Contact Alan Lescht and Associates today for legal advice on your security clearance.

The arguments for and against non-compete agreements

President Obama’s final term is coming to a close, and we find an article in Fortune about his October pitch to ban non-compete agreements, which the author says would “make the rich richer.”

The author primarily focuses on low-wage workers:

“Low-wage workers are precisely the group that will benefit from signing agreements not to compete, because they are the ones most in need of the training and life skills that a first job can provide.”

The author’s case assumes a direct tie from training and life skills to the existence of non-compete clauses.

According to this logic, a worker is hired and then trained by his or her employer. After the training period , the worker quickly “jumps ship” to another employer for more pay. There’s no non-compete clause, so the employer is helpless to do anything about it. Therefore, that employer will simply choose not to train new employees.

The trouble with this logic, however, is that employers must train in all new employees for the job they were hired to do. Would employers suddenly forego training and opt instead not to hire? Would the lack of non-compete clauses in employment contracts be that competitively troublesome?


But it is difficult to see how the absence of a non-compete clause alone would prevent employers from hiring unskilled workers, who must be trained either way.

Dealing with a non-compete clause?

What the author of the article fails to mention is that employment contracts often serve employer interests, not employee interests. This assertion applies to non-compete clauses as it does to other aspects of employment contracts. All too often, a non-compete clause actually unfairly limits the employee’s ability to work. Contact Alan Lescht and Associates today if you’re facing a dispute regarding a non-compete clause.

Settlement may be preferred in some wrongful termination claims

In Washington, DC, employees can sue their employers for wrongful termination. If the plaintiff wins his lawsuit, a court may order the employer to give the plaintiff his job back and to pay him monetary damages. However, there is always the chance that the employee’s lawsuit will not succeed, and he will end up with nothing, except for legal bills. Moreover, it is frequently difficult to prove wrongful termination. Therefore, settlement is an option employees should consider.

Many wrongful termination lawsuits never see a courtroom. In order to win a wrongful termination case, the plaintiff must prove that he was fired for an unlawful reason, such as discrimination or retaliation for whistleblowing. In most cases, it is very difficult to prove this to a jury. Therefore, settlement may be the best option, depending on the facts of the case and the plaintiff’s resources.

Wrongful termination plaintiffs must prove damages

Valuing a wrongful termination claim can depend on a number of factors. Lost wages are an important part of damages. Lost wages is the amount of money the plaintiff would have earned if he had not been fired.

However, the employee must prove that he tried to minimize his damages. For example, the employee may have to show he applied for other jobs and applied for unemployment. Any other wages earned and unemployment benefits will be subtracted from the amount a court could award.

Lost benefits are another factor in valuing a wrongful termination claim. For example, a plaintiff frequently has to pay more for health insurance under an individual plan than he did under an employer plan. Emotional pain and suffering is also a factor in damages. An employee could get monetary damages if he can prove that his employer’s actions caused him emotional harm.

In the end, if an employee does decide to settle a wrongful termination case, it is important that the amount he or she receives in the settlement is fair. It may be helpful to obtain legal advice from an attorney about whether you should accept a settlement offer.

Contract Alan Lescht and Associates today if you believe you have been wrongfully terminated.

Changes coming to federal security clearance system

A new federal agency will soon take over security clearance and background investigations. The National Background Investigations Bureau (NBIB) will replace the Federal Investigative Services program in the coming weeks and months. Like its predecessor, the new agency will be responsible for handling security clearance investigations and background checks – a critical function for vetting employees and contractors who will have access to sensitive government information.

Announced by the White House in early 2016, the NBIB aims to:

  • Enhance the security of private data, especially in the wake of major hacks that compromised the data of 22 million Americans last year
  • Ensure greater accountability when it comes to maintaining cyber security and preventing data breaches
  • Address the backlog of pending security clearance investigations
  • Modernize legacy systems with more automation and greater efficiency

The new agency will still be housed within the Office of Personnel Management (OPM); however, the Department of Defense will manage its IT systems. This arrangement will hopefully result in a stronger IT infrastructure – one that’s resistant to cyber attacks.

Fewer delays but increased costs for security clearance process

For many federal employees and contractors, security clearances are necessary to perform their jobs. Yet those seeking clearance currently face delays of up to 200 days, thanks to substantial backlogs.

OPM recently awarded contracts to vendors who will help work through these backlogs. Once in place, the new agency will leverage improved systems to minimize delays.

It’s unclear exactly how this new infrastructure will work, however. Some sources are speculating that the agency will factor in consumer data such as credit scores and predictive analytics to paint a fuller picture of individual applicants.

Along with these improvements, security clearance costs are expected to rise in the coming years.

Contact Alan Lescht and Associates today if you need legal representation regarding your security clearance.