Agencies have a new question to answer about employee misconduct

Agencies across the executive branch must reassess longstanding practices for addressing employee misconduct following a flurry of regulatory activity by the Office of Personnel Management. OPM’s two recent updates to the federal suitability regulations, little more than a month apart, rewrite the employee misconduct playbook for the over 1.35 million competitive service and career Senior Executive Service members of the federal workforce.

OPM’s first rule, published June 30 and already in effect, introduced a new tool for addressing employee misconduct: suitability actions based on post-appointment conduct under 5 CFR 731. These actions allow agencies to tap into OPM’s resources to remove individuals who have engaged in gross misconduct.

This is a significant change. Instead of relying solely on the agency’s staff and traditional adverse action procedures under Chapter 75 of Title 5, the law governing most serious disciplinary actions against federal employees, OPM can step in to act.

OPM’s second rule, published Aug. 3 and effective Sept. 2, streamlined the appeals process for suitability actions and moved the venue for appeals from the quasi-judicial Merit Systems Protection Board to OPM. The new appeals rule replaces the prior MSPB appeal route with an OPM appeal process.

Together, the rules create an alternative path when an individual poses an unacceptable risk to the integrity or efficiency of the federal service that can:

• Reduce the agency’s level of effort required; and

• Accelerate timelines for resolving threats to the government’s people, property, information and critical missions.

Figure 1.0 illustrates how OPM’s rules reshape the landscape and why agencies should take a timeout to reassess their employee misconduct playbooks.

Figure 1.0 How employee misconduct is addressed

The suitability path shifts responsibility from the agency to OPM after evidence gathering. This single action drastically reduces the burden on the agency’s HR, employee relations and attorney resources. The streamlined appeals process could also lead to a faster final resolution when someone challenges an action.

OPM’s final rules might provide agencies with a straightforward approach to address a possible rise in employee misconduct cases due to the ongoing government efforts to implement continuous vetting. This is part of a comprehensive overhaul of the federal personnel vetting system called Trusted Workforce 2.0.

Continuous vetting, a core element of Trusted Workforce 2.0, aims to proactively detect potentially problematic behavior among trusted federal employees. Identifying risky conduct earlier than traditional reactionary methods is expected to enhance the government’s ability to mitigate risk before a concern escalates into a serious problem.

Continuous vetting uses automated records checks, traditional investigative activity at certain time intervals or in response to certain life events, and information maintained locally at the agency, like disciplinary or security incidents.

Agencies generally embrace the enhanced ability to identify potential risks delivered by continuous vetting. Its expansion to cover the non-national security populations of the workforce fills a void where vetting processes either previously omitted staff in low-risk positions or saw varied compliance with requirements to check in on the conduct of the public trust population. A Government Accountability Office report on Trusted Workforce 2.0 found that agencies reported improved access to real-time information on personnel, while also identifying challenges with implementation.

The looming question facing agencies, though, is what will they do with all of this new information about employee misconduct once it’s identified?

Being prepared to adopt the new post-appointment suitability path rules could be the best move to handle a possible surge in employee misconduct cases. Agencies interested in this should start rethinking their traditional workflows and familiarize themselves with the updated suitability policies and guidance.

Key considerations include:

• Identifying information-sharing protocols between agency mission areas (HR, Information Security, Insider Threat, OIG, etc.) to ensure communication breakdowns do not block effective risk management;

• Developing workflows that create clear lanes of responsibility;

• Providing position-specific training tailored to HR, employee relations and personnel vetting/security staff on updated suitability regulations to equip them to adopt new processes; and

• Creating operating procedures for evidence gathering and submitting suitability referrals that comply with OPM’s suitability regulation and its implementing guidance in OPM’s Suitability and Fitness Processing Manual.

Agencies exploring how to reengineer processes to leverage OPM’s suitability updates can obviously look to recent guidance issued by OPM. OPM’s ability to help agencies might be limited because its suitability office is currently focused on expanding its capacity to handle up to four times more suitability actions each year. At the same time, it is establishing a new suitability appeals function.

Recruiting trusted industry partners with expertise in suitability is one play call agency leaders could use to ready themselves where OPM’s capacity to provide support may be limited.

OPM’s new rulings changed the playing field, and continuous vetting may increase the need to address employee misconduct. Game day is not the time to learn a new playbook. Agencies should use this early implementation window to build the workflows, train their teams and establish the partnerships they will need to put these new authorities into practice.

Bill Pedersen is a Personnel Vetting Enablement & Strategy Lead with Xcelerate Solutions and brings decades of experience in federal personnel security, suitability and vetting reform. As a former Division Director within OPM’s Suitability Executive Agent Program, he led Trusted Workforce 2.0 initiatives, authored key national policies and earned the OPM Director’s Individual Award for Customer Service.