Statistically-speaking, the majority of ClearanceJobs.com users will make it through their entire career without experiencing the suspension of their access to classified information or revocation of their security clearance.

If, however, you happen to be part of the unfortunate minority, know that you’re still in good company. Most cleared professionals with security problems are not a threat. Some simply made a mistake; others have done nothing besides – for example – marry a spouse with overseas relatives; and still others are victims of whistleblower reprisal or petty office politics.

Regardless of the reason for the suspension or revocation, you’ll be suddenly confronted with a stark reality: until the suspension is lifted or the revocation overturned on appeal, you won’t meet a condition of employment, assuming your position requires a security clearance, as most cleared billets do. That will leave your employer with a few choices. In a perfect world, they will have – and be willing to give you – uncleared work to perform while your clearance matter gets sorted out. Unfortunately, the decision to do that is a purely discretionary act on your employer’s part, limited only (in rare cases) by collective bargaining agreements.

Work for the government? Enter Paid Administrative Leave.

The next alternative is for the employer to place you on paid administrative leave. In the contracting world, this virtually never happens; if your employer is paying you to do nothing, they’re losing money.  But in government, its an entirely different story.  We’ve seen situations where federal agencies have kept employees with suspended or revoked clearances on paid administrative leave for months to years while their administrative due process rights play out. Where the balance is between treating employees fairly and wasting taxpayer money is up for debate. On one hand, a not-insignificant number of security clearance cases are easily mitigatable or launched for improper motivations; cutting off the employee’s pay while he or she avails themself of their administrative due process rights seems grossly unfair and punitive. On the other hand, paying someone to take a two-year vacation while the agency dithers isn’t exactly fair to those of us footing the bill.

That brings us to the final option the employer can invoke: an unpaid suspension from duty. Unpaid suspensions raise all the same policy issues as paid administrative leave, just in the reverse. Before being placed on unpaid leave because of a security clearance issue, federal agencies are required to give employees 30 days’ notice and an opportunity to challenge that decision in writing and/or in a personal appearance before the deciding official. The employee is entitled to legal counsel at his or her expense, although the deciding official is generally precluded from considering the merits of the underlying security clearance case so these challenges are only worth mounting in unusual situations. Contractors are not bound by the same rules and are, unfortunately, sometimes predisposed to termination over unpaid leave.

Given the enormous disparity between available options, a clearance holder’s status (contractor versus civil servant) and the employer’s whims both play outsized roles in this process. Whether the clearance holder can afford to stay and fight – thereby availing him or herself of their administrative due process rights – or must abandon a perhaps unfounded or retaliatory case in order to ensure the financial continuity of a paycheck shouldn’t hinge on such considerations. But until Congress changes the law, we’re stuck with the status quo.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com