Eric White So the rule has been publicized for a few days now, and it involves suitability actions that can be taken against certain federal employees for misconduct occurred after they are hired. Why don’t we kind of start from the before time? What did suitability mean before this new rule? And then we can kind of get into some of the changes.

Michael Fallings Sure. So suitability means whether an employee, a federal employee is suitable for the job. So when an employee is going through the application process, certain agencies would conduct a suitability review to ensure that the employee is eligible for employment. Certain things could mean that an employee’s not suitable for a position such as, you know, maybe even a prior criminal history or prior job history as well, that an agency could cause an employee not to be hired for a position. So that is where it was. Now employees that maybe faced a suitability determination that they weren’t eligible for the position could still appeal those actions to the Merit System Protection Board, but that is what it was prior to this rule.

Eric White Got it. OK. And with this rule, let’s get into it itself. What does it say and how will it affect employees when they are deemed either suitable or not suitable? What changed exactly?

Michael Fallings Well, this rule allows federal agencies to take suitability actions for post-appointment conduct, which is a major change because when taking a suitability action for post appointment conduct, the agency does not have to go through the due process procedures. Previously, if there were something to happen after the employee was hired, the employee would at least receive notice and opportunity to respond, typically even some sort of investigation as well, with a suitability action, the government could just issue a notice saying we are finding you unsuitable based on conduct that even occurred after your appointment to the job. Now that could still be appealable and challenged, but the employee doesn’t have that due process right that I mentioned.

Eric White Got it. Okay. So while also hindering a little bit of your ability to fight the suitability charge, it seems as if the administration also wants to stretch how and what it can define as or when it uses the term suitability, it wants to be able to use that for more faults, I guess you could say, of an employee. Is that correct?

Michael Fallings Yes, it expands really the timeframe from where you can be found unsuitable. So you could be working in a position and then be found unsuitable for conduct that occurred after the fact. It does make federal employment less secure, you know, for these employees that are used to having at least some due process with regards to any action against them. In addition, you know, it allows for the government to use additional reasons to take those actions against the employees.

Eric White What is the legal standpoint there of, you know, this is going through the comment period right now. This also hinders an employee’s, one’s ability to appeal when they are deemed not suitable for a position. What is the possible legal remedy then for them if they’re not able to appeal or anything like that? Are there other violations that could be at play here?

Michael Fallings Well, if they are prohibited from appealing, you know, the employees could still go to court and still file in court litigation alleging this is a violation of the Administrative Procedures Act, potentially, depending on the type of employee alleging to prohibit a personnel practice. And there’s a lot going on with that to see whether the employees can still file that. Now, if there’s a discrimination basis behind it, they could still go to the EO office. But if there is a prohibition on actually appealing a suitability action, then what I would recommend is probably trying to take it into federal court for the employee to continue to challenge that.

Eric White We’re speaking here with Michael Fallings. He is the managing partner with Tully Rinckey. This all comes while the Trump administration has also put out a new stipulation for future or current federal employees to sign non-disclosure agreements. Could not signing that agreement saying, you know, I can’t abide by this or I don’t think it’s necessary, could that also find you deemed as unsuitable?

Michael Fallings I believe that’s what the administration is going towards. I think for employees that, from my knowledge, those agreements are given to, you know, employees that are applying to the government, but if they’re also given to employees that are within the government. I think that’s what they may find is that you’re not agreeing to our non-disclosures agreement. You’re not agree to keep items confidential. And so we’re not finding you as suitable for the position because you can’t agree to our terms. I would encourage employees to challenge that to the available methods, but I believe that is what this administration is going for.

Eric White Yeah, because that brings in so many other aspects, right? I mean, there’s whistleblower protection rights and, you know, that pesky First Amendment rights that allows you to say whatever you want to say, right? I mean you may have grounds there if it comes down to that.

Michael Fallings Yes, you know, regarding the NDA, I think the major concern has been as the First Amendment rights for employees. Employees, federal employees, have First Amendment rights and the language regarding the NDA hasn’t been as clear on what is actually being deemed confidential. You know, the whistleblower rights as well. Now, I know the proposed language regarding that says that employees could still blow the whistle, so to speak, but I don’t think it’s as clear and it definitely puts fear in employees’ minds about, well, could they really? Well, what may happen if I do? Could there be retaliation? So that agreement, that NDA, is also concerning. But as you said, it seems like the government may try to use firing to sign the NDA as a reason to remove an employee.

Eric White Where does this stand as far as OPM’s overall changes that they want to make to federal hiring oversight and workforce planning? We’re seeing different changes from them on staffing plan requirements, enhanced oversight from chief human capital officers. What is the grand plan here that OPM is going for you think?

Michael Fallings Well, it appears to be trying to reduce the federal workforce and to make it easier for federal agencies to remove employees. Federal employees have had rights to protect their employment for a number of years, for decades, and it appears OPM, through the administration, is trying to take that away. I think there was a recent proposed rule even about shortening performance improvement plan periods, taking away the due process rights and the analysis, the factors that government agencies must use to determine whether to discipline somebody. I think that was issued maybe just today as well. So all of these proposed rules and regulations appear to allow the agencies to remove these employees quickly without due process and without litigation.