It happens to many people: some type of employment-related problem that results in a proposed termination. Lawyers get involved and a confidential legal settlement ensues. The employee resigns his or her job, with the employer agreeing to a clean disciplinary file and voluntary resignation in exchange for an agreement by the employee not to sue.
The employee goes on to obtain a job as a federal employee or contractor, answering “no” in response to questions on the SF-86 form about prior employment-related problems. Shortly thereafter comes the nasty surprise: that confidential settlement isn’t exactly confidential.
The stark reality is that, much like expunged criminal records, confidential settlement agreements are only confidential with respect to the private sector. The SF-86 form is completed under penalty of perjury, with applicants certifying that their answers are true. There is no exception under federal law that allows a security clearance applicant to omit reportable employment-related problems simply because of a confidential settlement. Similarly, federal agency employers are under a duty to inform federal background investigators about the existence of a settlement. If you read them carefully, most confidential settlement agreements involving federal agencies contain a clause specifically excluding security clearance background investigations.
The Signature You Can’t UndO
The situation arises with some regularity in our law practice – usually when the employee calls us panicked after being confronted with the information by federal investigators. The appearance is often that the employee intentionally withheld the information from the federal government. Unfortunately, there isn’t anything we can do to roll-back the non-disclosure: you can’t un-sign a document you already signed under penalty of perjury. What we can sometimes do, however, is show that the employee’s understanding of the nature of a confidential settlement was a reasonable mistake. After all, many – if not most – people without legal training would arguably believe confidential means confidential.
If successful, this vitiates any intent behind the omission and negates security concerns about lying. But it does nothing to address the underlying employment-related conduct at issue. Thus, the applicant should be prepared to explain all the details regarding what transpired at the prior employer – details the applicant no doubt hoped to keep permanently under wraps.
If this scenario sounds familiar, you should know that strong legal representation can make a real difference. Ideally, you should consider consulting with an attorney before submitting your SF-86. You just might save yourself a major headache down the road.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
