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Federal Employment Law

Whether you are a current or prospective federal employee, you will probably have to obtain and hold a security clearance.

The federal suitability determination process for employees can seem like a black box.

So federal employees naturally have many questions about the process, especially if they receive an unfavorable suitability determination. 

Read on to learn more about the security clearance process and suitability determinations made by the government.

We will also cover what happens when you get an unfavorable suitability determination letter. If you have any other questions, consult a qualified federal employment attorney. 

How Does the Security Clearance Process Work?

The federal government offers a meaningful career for many people. But for obvious reasons, the government needs to ensure that its own employees are stable, reliable, and loyal citizens.

Without this mechanism, grave damage to national security and the functioning of the country could result. 

The government’s security clearance process has evolved over the decades to properly evaluate potential and current government employees.

There are three national security clearance levels. Those three clearance levels are, from least to most secure:

  • Confidential,
  • Secret, and
  • Top Secret.

Each of these levels involves different levels of testing. The higher the security clearance, the more frequent and more thorough the testing for suitability determination.

What Factors Affect a Suitability Determination?

There are 13 factors that influence how the government evaluates a federal employee.

Those factors are:

  • Allegiance to the United States;
  • Foreign Influence;
  • Foreign Preference;
  • Sexual Behavior;
  • Personal Conduct;
  • Financial Considerations;
  • Alcohol Consumption;
  • Drug Involvement;
  • Emotional, Mental, and Personality disorders;
  • Criminal Conduct;
  • Handling Protected Information;
  • Outside Activities; and
  • Use of Information Technology Systems.

Each one of these categories has specific conditions that, if true, may result in an adverse suitability determination.

But there are actions you can take to help mitigate these negative conditions. Let’s explore some of these suitability factors in more detail so you can understand how the government makes suitability determinations. 

Allegiance to the United States

Every suitability determination’s starting point is checking whether you have “unquestioned allegiance to the United States.” 

Disqualifying conditions related to this factor include:

  • Involvement in terrorist acts;
  • Association or sympathy towards terrorists;
  • Association with any group advocating or arguing for the overthrow of the United States Government; and
  • Involvement in any acts that prevent others from exercising their constitutional rights. 

Obviously, all of these conditions are serious and seem clear-cut. Yet sometimes, well-meaning people can participate in an organization that has more malicious intentions.

If you find yourself in a situation where you have an association with one of these organizations, you can mitigate the risk by showing you were not aware of the unlawful aims of the group and subsequently severed ties.

You can also mitigate these concerns by showing that your involvement, even if intentional and knowing, was not recent. 

Emotional, Mental, and Personality Disorders

For this category, government investigators will attempt to assess whether you have any emotional, mental, or personality disorders that make you unreliable or unstable. 

Some of the specific conditions that may disqualify you include:

  • A mental health professional’s opinion that you have a condition that causes “defects in judgment, reliability, or stability”;
  • Evidence showing you have failed to follow medical advice and treat an emotional or mental condition; and
  • Evidence showing you engage in high-risk, anti-social, or aggressive behavior on a consistent basis.

If your profile raises one or more of these concerns, you can mitigate those concerns by showing that you are currently healthy and that your emotional or mental instability was only temporary.

Providing a recent opinion from a mental health professional stating your condition is cured or under control also helps.

Personal Conduct 

“Personal conduct” is a vague phrase, so it’s a category worthy of further exploration.

The government defines “personal conduct” as any behavior demonstrating “questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules” that could indicate a person might not protect classified information.

Here are a few examples of personal conduct that would concern government investigators:

  • Refusing to cooperate with investigators during the investigation process;
  • Making false or incomplete statements on security clearance investigation forms; 
  • Associating with criminals;
  • Demonstrating a pattern of dishonesty or rule-breaking; and
  • Concealing information from investigators that might make you easy to coerce or blackmail.

If one of these conditions describes your past, you can take action to mitigate them. Specifically, focus on demonstrating that:

  • You are filling out forms completely and honestly;
  • You took quick action to correct yourself after a moment of dishonesty;
  • You corrected any mistakes on security clearance forms; and
  • The troubling conduct in your past occurred a long time ago or was only temporary.

Having an attorney by your side in this process is one of the best ways to maximize your chances of a positive outcome.

A federal employment attorney will have extensive experience regarding these issues and can give you helpful pointers and tricks to round out your application.

An attorney can also help you answer specific questions about how to respond to certain questions. 

How Can I Maximize My Chances of Obtaining a Favorable Suitability Letter?

You can take a wide variety of actions to help your chances of passing a security clearance. For one, you can avoid any criminal activity and any group that may want to overthrow the government.

Also, avoid using drugs that are illegal at the federal level. This includes marijuana. Although many states have legalized marijuana, the federal government still prohibits it inside and outside the federal workplace.

Limit your alcohol usage as well. Legal incidents involving alcohol use and alcoholism are both grounds for disqualification.

Additionally, you should be prepared to explain any involvement you have with foreign nationals. If you are a dual citizen, you cannot obtain a security clearance without giving up your other citizenship.

When Do Suitability Determinations Occur?

All prospective employees need to undergo a suitability determination before their first day of work. After that, recurring suitability checks continue every few years.

If you have a top-secret clearance, you’ll undergo a periodic reinvestigation every five years. If you have a secret or confidential clearance, you’ll undergo a periodic reinvestigation once every decade.

The government can also conduct suitability checks on federal employees randomly and without notice. 

What If the Government Issued a Suitability Denial Letter to Me?

If the government has denied you a security clearance, you have the right to appeal. If you are a current federal employee, you can also appeal your agency’s decision to take away your security clearance.

The best way to start your appeal is by assessing the government’s reasons for its actions. Then, hire an attorney to plead your case before the relevant authorities and collect evidence in your favor. 

How Long Does It Take to Obtain a Security Clearance?

According to a 2015 Annual Report by the Office of the Director of National Intelligence, it takes federal employees about six months to obtain a security clearance.

Top secret clearances can require a year to obtain, while confidential clearances generally require about four months. 

Does Every Agency Have the Same Suitability Requirements?

Not necessarily. The Department of Homeland Security’s (DHS) suitability requirements differ from those of the Central Intelligence Agency. However, most security clearances are respected by other agencies. 

Have More Questions About Security Clearances and Suitability Determinations? Contact an Outstanding Attorney Today

All of us at the Federal Employment Law Firm of Aaron D. Wersing PLLC want to help you have a prosperous and fruitful federal career.

Regardless of whether you are a current or prospective employee, we want you to be equipped for success.

We can help answer questions about the security clearance process, give you helpful pointers on preparing your application, and even help you appeal a negative outcome.

We can also help your case by collecting evidence showing you are eligible for a security clearance. 

Throughout the years, we have helped many federal employees obtain and keep their security clearances.

As a result, we’ve saved many a federal career, and we’d love to help with your career. We understand that many people have a tough time affording legal assistance, but we do not want money to be a headache for you.

Call us today at 866-298-1488 or contact us online to get the help you deserve with your security clearance challenges. 

Author Photo

Aaron Wersing, Attorney at Law

Aaron Wersing is the founder of the Law Office of Aaron D. Wersing. Mr. Wersing graduated from the Georgia State University College of Law with a Doctorate in Jurisprudence and was the recipient of the CALI Excellence for the Future Award. Mr. Wersing previously attended the University of Georgia, where he received a Bachelor of Business Administration degree in Accounting. Mr. Wersing is an active member of his local community. Mr. Wersing acts as a volunteer attorney with Houston Volunteer Lawyers, the pro bono legal aid organization of the Houston Bar Association. He is also a member of professional legal organizations such as the National Employment Lawyers Association and the American Inns of Court. To reach Aaron for a consultation, please call him at (833) 833-3529.

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