Employment Suitability Versus Security Clearance

When you accept a federal job offer that requires a security clearance, you will be required to submit a “Questionnaire for National Security Positions,” also known as a Standard Form 86 (SF86). Although the paper version of the SF86 is still in use, most applicants will use the electronic web-based version of the SF86 called e-QIP (Electronic Questionnaires for Investigations Processing).

For most positions you will have to wait until you are granted either an interim security clearance or a final security clearance before you are actually hired and report for duty. That can be a matter of several days or several months depending on the clearance required. Your agency’s security office will review your SF86 for completeness and provide a copy to their Human Resources (HR) office where your SF86 will be reviewed to insure that you meet the minimum employment suitability (also known as fitness*) criteria for the position. If the HR review is favorable, the security office will forward your SF86 to the organization that will conduct your background investigation. At this point your agency’s security office can grant or decline to grant an interim clearance, if required. A determination for an interim clearance can not be made until certain preliminary checks are completed. The process for these checks can take 10 to 40 days. When the entire investigation is completed, it is usually forwarded to the agency’s HR office for employment suitability adjudication. If the HR adjudication is favorable, the investigation is then adjudicated for a security clearance eligibility. These two adjudications are usually separate processes by separate offices using different criteria.

There are 3 stages at which the offer of employment you accepted can be withdrawn by the agency—the initial HR review, the HR adjudication, and the security clearance adjudication. If you are rejected because you failed to meet employment suitability/fitness criteria, your right to 1) be informed of the specific reasons, 2) rebut the reasons, and 3) appeal a final adverse decision to the Merit System Protection Board (MSPB) will depend on the type of the position you were offered. Federal agencies are required to use employment suitability standards and procedures for all appointments to “competitive service” positions. The U.S. Office of Personnel Management recommends, but does not require, that these same standards and procedures be used for employment fitness determinations for appointments to “non-competitive” positions, such as “excepted service” and temporary positions, as well as contractor positions.

Most Intelligence Community (IC) agency jobs and some other federal jobs that require security clearances are “excepted service” positions. Consequently if an agency withdraws a job offer for an excepted service position due to employment fitness reasons, they generally only inform you that you were found to be unfit for the position without providing any specific reasons. Applicants sometimes confuse this with being denied a security clearance, because the job offer was withdrawn after they submitted an application for a security clearance.

Title 5 Code of Federal Regulations Part 731 (5 CFR 731) governs federal employment suitability standards and procedures. Section 731.202 of 5 CFR 73 covers specific suitability criteria. The “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information” governs federal security clearance criteria. Employment suitability and security clearance criteria are very similar, but a few differences exist.

One major difference is that suitability criteria can be influenced by the nature of the position for which you are applying, whereas security criteria are unaffected by the nature of the position. This difference can result a situation where you are rejected due to suitability criteria, but where you would have been granted a security clearance had you not been eliminated from the hiring process before your security clearance adjudication was completed. In this situation it is possible you can later be hired as federal contractor employee and be granted a security clearance at the same level required for the federal job. For example, the Drug Enforcement Agency (DEA) considers applicants unfit for employment, if they have ever illegally used any drug. The only exception to this is for self-disclosed “limited youthful and experimental use of marijuana.” The FBI has a similar policy that limits drug involvement to experimental marijuana use more than 3 years ago and experimental use of other drugs more than 10 years ago. Both the DEA’s and the FBI’s fitness criteria for drug involvement are significantly more restrictive than security criteria currently being applied by most federal agencies.

If your offer of employment from a federal agency is withdrawn after you submit an SF86 and the agency notifies you that you were found unfit for the position without providing any other explanation, the position was an excepted service or temporary position not covered under 5 CFR 731. This adverse fitness determination might not have any affect on your future security clearance eligibility. It might not have any affect on your suitability for employment at a different federal agency.  Some agencies have internal policies that afford limited procedural due process rights to excepted service, temporary, and contractor personnel.

If a federal agency intends to withdraw their offer of employment for a competitive service position because of suitability criteria, they must notify you in writing and state the specific reasons they believe you are unsuitable. This notice must also explain your right to receive the information used to make this decision against you and your right to make a written rebuttal. If the agency makes a final adverse suitability decision, they must notify you of that decision in writing and inform you of your right to appeal the decision to the MSPB.

If your case receives a favorable employment suitability determination, your background investigation will be adjudicated for a security clearance. All security clearance adjudications are required to provide essentially the same “due process rights,” regardless of whether the appointment is for a competitive service, excepted service, or temporary position or for a contractor position. If there is a preliminary decision to deny a clearance, you will be sent a “Letter of Intent” (LOI) with a Statement of Reasons” (SOR) or a “Letter of Disapproval” (LOD) detailing specific reasons why granting you a clearance may not be clearly consistent with the interests of national security. The LOI or LOD will include instructions for submitting a rebuttal and in some cases requesting a hearing. If there is a final decision to deny a clearance, you will be sent a “Letter of Denial” that contains instructions for submitting an appeal.

* For excepted service positions the word “fitness” will be used instead of “suitability,” but has essentially the same meaning.

by William Henderson
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