Designating Federal Position Sensitivity and Employee Suitability
A recent court ruling on whether or not employees holding ‘sensitive’ positions can appeal layoffs to the Merit Systems Protection Board demonstrates less about legal protections for federal employees than it highlights how confusing sensitivity designations can be.
Most individuals who have applied for a position with the federal government realize that there is a difference between ‘employment suitability’ and a security clearance. Employment suitability screening consists of a National Agency Check with Inquiries (NACI) with applicants completing an SF-85P, typically, versus an SF-86. Just as investigations differ depending upon the clearance level, investigations differ for employment suitability based on the level of risk assigned to the position. (Learn more here.)
Some are concerned that employment designations may soon be used to not just protect classified information, but to help oust employees from federal positions.
In a 2-1 decision by the U.S. Court of Appeals for the Federal Court, two low-level defense department employees were denied an appeal after being barred from holding “non-critical sensitive positions.” Following 9/11, many positions have been reclassified from non-sensitive to sensitive. The two plaintiffs in the recent case were individuals whose positions had been redesignated but due to financial issues, in one instance, and undisclosed reasons in the other, the individuals were not eligible for the sensitive positions, and were eventually fired as a result.
Critics of the ruling feel that reclassifying position designations could soon be used as a means for federal managers to fire employees without cause. The majority opinion in the case argued that the need to protect classified information trumps employee rights, in this instance. Federal agencies are more equipped to make personnel decisions than the courts, and electronic records management gives even non-cleared employees access to information which could harm national security.
As the government looks to cut costs and move forward with security clearance reform, reevaluation of security clearance designations may be in the cards. Unlike the case above, many agencies are looking into where they can reduce clearance levels, downgrading top secret clearances to secret clearances, which results in significant cost savings over time. At the same time, the widespread use of electronic records keeping, as referenced by the majority opinion in this case, will likely continue the use of ‘non-critical sensitive’ position designations as an assurance that those with access to government computer networks and systems warrant that access.
A position sensitivity designation is not the same as a security clearance. All federal positions are evaluated and given a sensitivity designation:
Non-sensitive
|
SUITABILITY
Moderate Risk Public Trust High Risk Public Trust |
NATIONAL SECURITY
Non-critical Sensitive Critical Sensitive |
“As a practical matter within DOD 95% or more of all Non-critical sensitive positions are so designated because the positions require access to Confidential or Secret national security information and 95% or more of all Critical Sensitive positions are so designated because the positions require access to Top Secret information,” noted William Henderson, author and security clearance consultant. “All positions designated Special sensitive (a term not universally used within DOD) are so designated because they require access to SCI or other SAPs.”
An individual under investigation for a non-critical sensitive position without a security clearance undergoes the same adjudicative criteria as someone applying for the same non-critical sensitive position with the need for a security clearance. Persons with a ‘non-critical sensitive position’ could then be granted access to classified information administratively, without need for an additional investigation, said Henderson.
That reality supports the court’s decision that the designation of sensitivity – like security clearances – best falls within agency purview, rather than the judiciary.
Despite the outcry of union leaders and worker’s rights groups, it would seem the decision to allow the government to fire individuals who don’t meet criteria for non-critical sensitive positions is a sound one. Federal managers are unlikely to re-designate positions for the sole reason of retaliation, and if that were the case the employee would simply need to justify why their position should not have been reclassified.
It’s a tough topic – almost beyond the grasp of the editor of ClearanceJobs.com! Knowledgeable investigators, feel free to weigh in with your perspective or correction! – LK
Comment Archive
My respone is of a curious nature. I recently started the process of obtaining a secret security clearance for an employment opportunity I was being considered for, and I can tell you based on the questions asked, I would be willing to bet that MOST people who fill out that form does not answer it with complete honesty. I know because when you do they , the government questions if you should have the clearance or not and delays the process, or not awarding it at all. The ones who get the clearances are those who either LIE or WITHHOLD INFORMATION , as thsoe are easier to decide on, but is that what CLEARANCES are supposed to be about? Another thing, Why do people that WORK for the government have to to through such clearances and those LEADING the government, only get questioned by the FBI? Is it just me or does anyone else see something wrong with this picture?
If I’m reading this correctly, would this mean that lowly OPM-only investigators are in Non-critical Sensitive positions as they require an SSBI but aren’t granted a clearance?
Very
I think yes. I still have no idea how we are not adjudicated to the TS Level for DoD and the rest of the government. There is always a potential for accidental disclosure through interviews, overhearing things in SCIF’s and the like. It’s bad enough being debriefed after a disclosure, with a TS, just wait until it happens with someone uncleared.
I ain’t seen shit.
I once was asked by a guy if I had a clearance. I told him “I have one level higher clearance than everyone I meet” and he said: Oh, O.K. This was in a Command HQ. Education is definitely not a clearance requirement.
Why does everyone want to know what’s higher than a TS?
Don’t even get me started about DOE employees and their Q…
Fed,
Some of those folks are just plain ignorant. All the time: I don’t have a TS, I have SCI!!!! Really.
Recently had a guy tell me he had clearances he can’t discuss–I almost blew water out my nose during the interview while drinking.
BW,
That is awesome. Just awesome.
Or the public trust subjects who want to know what level of clearance they will have.
My hands down favorite are the subjects that have absolutely no idea why they’re being interviewed, no clue they need a clearance and dont recall filling out the sf-86.
I mean what the f*ck? Really? How? Just how does that happen?
Fed Inv.,
I get this all the time from 17/18-year old recruits whose SF-86 was filled out by the recruiter.
I love having to go through all the disclaimer questions with 17-year old foreign nationals joining the military.
Amen, Darrow. Wish I had a dollar for every time a recruiter has filled out a recruits paperwork with basically no regard for whatever the correct info is. Especially for foreign national recruits.
How can you forget you filled out the forms??? Oh, that’s right, you did it at 11pm and only took about 15 minutes to do it. Which is why you and I are going to spend an extra two hours together…
Two hours, if you’re lucky.
Rur-roh
http://www.washingtontimes.com/news/2012/sep/13/justice-dept-fails-60-day-security-check-new-hires/#ixzz26VK5ANPU
Just wait until the Air Force dumps the load of temporary suspended backgrounds. I don’t think anyone has anticipated this major influx in areas. There is a potential for thousands to hit all at once.
BW, are you talking about the PR’s that were ordered to be brought up date or are there more?
Fed
It’s the PR’s. They are still sitting in the chute and nobody can file cases more then 60 days out. The USAF was using a six-month out window, so just imagine how many were placed on hold and will begin hitting. This cycle will continue until the freeze (per se) is lifted.
Fingers crossed they are phases…
Most of the agencies do not use PPR’s as they should. I know where I am, I may get a few per year only.
DOE uses a lot of Phased.
I hate PR’s, you might as well just get rid of them, they’re just not that different.
I don’t know–seems like talking to the subjects’ very best friends is very useful???????
If they have any friends.
HAHAHAHA
I was in the military and got an honorable discharge(and a prior security clearance). I went to school and had odd jobs here and there. Is that an issue given that I mostly conduct myself with integrity?
Also on the previous joke by Fed Investigator, I purposely keep a small network of friends. If one of the three I listed on the SF86 can’t be contacted due to military service etc., will that affect my security clearance? I have been as honest as possible.
Also, I have had no contact and want no contact with my father. I know next to nothing of him. Will that hurt my clearance?
I’m a newly hired Air Force Civilian if that matters at all and it is an ANACI secret clearance I’m getting.
Man I must say I don’t remember secret clearance being so hard and nerve-wrecking.
Jobquestion
You have nothing to worry about. Odd jobs mean nothing as long as there were no major problems. The joke by Fed is an inside joke with us Investigators—meant nothing. Having a small group of friends is normal and has no bearing. If they cannot contact a reference because of deployment is no big deal—happens daily.
Having no contact with some family is more normal than you think. I have had hundreds of those cases as families are strangely unique.
Don’t sweat things–but don’t tell people you “Mostly” conduct yourself with integrity 🙂
Thanks for your service.
Don’t listen to BW, time to go make some friends, I suggest they be foreign nationals.
hahahahaha
Just kidding, relax. If you have nothing to hide, nothing will be found.
The friends and family stuff is way common.
“…I mostly conduct myself with integrity.” Yikes. TMI!
Fed,
My PR is due–I listed you as a refe, address the “Blog”
Sounds good BW. Ill be sure to get back to your investigator in about three months.
That and 40 re-opens for my local OPM Guy because lack of social.
Hahahaha
I just filled out my SF-86. I listed my addresses from birth. I hope that’s okay. I also didn’t bother reporting the two semesters I attended college last year because I withdrew before getting any grades so I really didn’t consider it education. Oh, and I didn’t bother listing my residences while I was in school because they were only temporary… Was I supposed to list supervisor information on the form? I just checked the “same as employer” box because I really didn’t have time to read the instructions. And even though I was let go from those three jobs, I don’t really consider it being fired because I was never told why I was being let go.
Sorry, it’s been a really rough two weeks…
I put everything off by 1 month from my last so there are 100 discrepant messages for the investigator.
Contractor,
We feel ya–your story can be told about 10,000 in the past 2 weeks. Hang in there.
To contractor,
Too funny!
I feel your pain. That’s the story of my life right now.
So I go out to do a neighborhood this afternoon, an ancient woman answers the door, I introduce myself and give her the rundown.
She looks at me confused and asks, “who are you with again?”
I reply that I am a Fed. Investigator with the US Office of Personnel Management.
Shes says, “oh, they’re way too many Federal employees” and shuts the door on me.
That sums up my day.
“I mostly conduct myself with integrity.” I mean that in the sense that no one could ever possibly conduct themselves with integrity 100% of the time. So saying ALWAYS seems fraudulent to me. I’m about as honest as they come, I’m often told I’m too honest. I’m a ‘straight shooter’ if you will. Service record I put down is completely honest, and I tried to contact my buddy, but I’m not sure if he is on a field problem or deployed. The last contact was in late June. I did get permission from him to put him down, so can’t quite figure it out. I feel better now, I think me having a pregnant wife, is making me unusually nervous (I’m rarely nervous). I guess I perceive the investigators to ‘nitpick’ to death from what other people in my office are saying. So it’s not the honesty, its more the things I can’t control I fear the most. Again my security officer at the unit I work at found my JPAS security clearance. I have been working, and I love helping the military in some format again.
Thanks for the reassurance, my wife is even telling me to calm down haha.
Fed Investigator,
If I were that old lady I would’ve been firing questions at you like a Gatling gun.
“What’s that agency your with again?”
“Why haven’t I ever heard of it?”
“If you’re a special agent why don’t you have a gun?”
“How can you arrest people without carrying a gun?”
“Where’s your partner?”
“Is it ok to ask [the Subj] if it’s ok before I talk with you?”
“Can you come back tonight after the game and I will answer your questions?”
“How do you know I am who I say I am without looking at my ID?”
“What if I gave you a fictitious name and made up fictitious answers?”
… and a hundred more like this… 🙂
Darrow, sounds like you’ve been doing this for awhile! Hahahaha
What about the “I can get that badge on the internet.”
jobquestion, your posting makes my spidey sense tingle, it’s hard to gauge someone from an internet posting but when I come across people who insist they are too honest, it raises the antennae.
Anyway, take it easy, don’t listen to rumors, listen to people here, we’re real live Investigators and adjudicators. Especially if you’re the same poster freaking out on the fedsoup site whose pregnant wife is being interviewed. Chillax. If you’re not the same person, chillax anyway.
And for the record, I have never used ‘chillax’ in am ROI.
Neighbors questioning your identity and motives are better than the subjects doing the same. I’ll never forget a subject a few years ago who really, really thought I was at his place of employment to steal his identity. Flat out refused to provide his social security number until I was up, putting my papers away, about to walk out the door. Paranoia will destroy ya…
Weird scenario…
I took a federal position at the beginning of 2009. I had been working in federal contracting for over 5 years and already had an established clearance. When taking the government civilian position, it required a clearance upgrade to be completed within one year. No big deal. My upgrade investigation was initiated and I just continued working. But I really didnt like working on the govermment side of the fence. So I left my federal position in the middle of the clearance upgrade. It was a clean break, on good terms, no hard feelings, 3 weeks notice, all the bells and whistles.
Now I am considering getting back into federal contracting, but never received any notification on the outcome of my past clearance upgrade/investigation. I guess my question is, where do clearances/background investigations go to die when an individual quits in the process? Like I said, I already had a lower level clearance and I have no concerns. I read something about “Loss of Jurisdiction”. Could that have happened to me? I dont expect to have that elevated clearance, but I want to answer all of my questions honestly on my new SF86. That is hard to do when I am uncertain of the outcome of the last investigation.
EngineerNumber 6
Don’t worry about it–if you don’t know the answer just estimate and in the comment block–put you resigned and believe the process stopped before adjudication or simply tell the investigator if you are interviewed.
If you were cleared, the investigator will have the date and can clarify it with you if interviewed.
I just did my SF86 and couldn’t even remember all of my dates. You are not alone in that–guaranteed.
If only I had a dollar for every time I’ve been told to confront someone on their 35 unlisted previous investigations dating back 30 years or more.
Investigator: Why didn’t you list these investigations on your paperwork?
Subject: I couldn’t remember them all and assume y’all had the information anyway.
Investigators: /thinks subject is exactly right /sighs /puts reason in notes /mentally curses f50
I have a few questions that I’m hoping the people here can answer. OPM is advertising BI positions in my area, and I am considering applying. I have some experience already; I used to be a CI agent in the Army Reserve and did a 6-month TDY augmenting the DSS (this was in the late ’90s). So I have some experience, but I don’t know how much has changed since then. Here’s the thing: I already work for the federal govt, and I’m reluctant to switch partly because I don’t understand why OPM uses so many contractors to do this job, and if that will have any potential impact on job security.
I realize that this may sound like an odd concern, considering the generally accurate reputation the fed has for job security, but I seem to recall hearing vague rumors back when I was TDY to the DSS about some of their GS positions going away and being replaced by contractors. Is/has this been a problem? Given the obvious need for more investigators, why doesn’t OPM simply hire more instead of contracting it out? Considering how much contractors tend to charge the govt, I have a hard time believing that it’s actually cheaper.
Thanks in advance for any insight you can offer. This blog rocks.