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:
Moderate Risk Public Trust
High Risk Public Trust
“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
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