Ask The Lawyer

By Debra Roth

Proposed removal can be tricky hurdle

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A myth of federal employment is that you can resign after getting into trouble to avoid the blemish of a removal from federal service on your records. Another myth is that you can get a “clean” record as part of a negotiation on an adverse action, either at the agency or at the Merit Systems Protection Board.

The reality is that the situation is far more complex, and an employee who receives a proposed removal can never receive a completely clean record, at least for some period of time.

When an employee who is beyond the probationary period receives a proposed removal, the employee is free to resign and avoid the firing, but he will receive a final SF-50 in his official personnel file that says he resigned after receiving a proposed removal.

That SF-50 is a warning to federal agencies that might be prospective employers.

An employee who is fired during the probationary period will receive an SF-50 that notes separation during the probationary period, with no reasons stated for the separation.

Negotiations might lead to a clean SF-50. This is permissible, and in return for waiving MSPB and equal employment opportunity rights, an employee might receive paperwork that says the resignation was voluntary with no mention of an involuntary separation or proposed removal.

This is a decent result for the employee who perceives that he will not be successful in fighting the proposed removal and who plans to work for a private-sector employer that does not do business with government or require its employees to have security clearances.

The rub is on future employment with the federal government or in the suitability and security clearance reviews on many employees of government contractors.

Many agencies use Optional Form (OF) 306 for new employees, including former employees of other federal agencies. It requires a sworn answer to the following question: “During the last five years, have you been fired from any job for any reason, did you quit after being told you would be fired, [or] did you leave a job by mutual agreement because of specific problems?”

A job seeker with a proposed removal or removal might be tempted to fudge the OF 306 question by rewriting history. In other words, some might choose to commit a felony by putting a lie on a sworn statement.

This is never a good idea. You might be able to convince an agency to hire you despite having had a bump in the road somewhere else if you are fully honest and answer all questions asked of you completely and truthfully.

If you are caught lying, you will likely be fired and could be criminally prosecuted.

This obligation to disclose a prior bad work situation extends to private-sector jobs if a security clearance is required. The SF-86, a form that is completed by those who seek a security clearance for both federal and government contractor jobs, has a question about former employment.

A common version of the form asks a question similar to the question in the OF 306 but goes into more detail. It asks for negative job experiences as far back as seven years. It also asks the rather broad question of whether the security clearance applicant left a job under unfavorable circumstances.

The good news about the SF-86 is that a disclosure of a proposed removal on the SF-86 may not interfere with actually finding a private-sector job. For the most part, security clearance adjudicators care much more about full disclosure than the existence of past job problems.

Consider obtaining legal advice if one of the situations above applies to you. You may or may not be required to make a disclosure. Sometimes the circumstances surrounding the departure from a job can be sufficiently murky so as to create an ambiguity. Objective legal advice might prevent bigger problems that sometimes occur in the job application process.

Also, if you know you will be fired, resign before you receive the proposed removal. While not perfect, this is a substantial improvement in posture for the future job search.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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Comments

  1. Ann Says:
    July 25th, 2011 at 8:03 pm

    Very interesting article. However, I have to question how an investigator, in doing a background check of the job seeker, could possibility find out that the applicant has “fudged” the OF306 question, especially when the applicant and his previous agency had signed a settlement agreement to not disclose the proposed removal. Moreover, the settlement agreement specified that former supervisors are to keep the matter confidential and any employment references related to said job seeker be directed to HR. HR could only verify period of employment, title, and grade. With such restrictions in place, I find it hard to believe that those who “fudge” would get caught during the background check. Unless of course, the neutral reference from HR alone is enough of a red flag that something is amiss.