When Gwenyth Paltrow infamously used the term “conscious uncoupling” to describe her divorce, she was roundly mocked as an elitist buffoon. The term is unquestionably laughable and absurd, but it also weirdly makes sense.
Over a decade of law practice, I’ve seen lots of not-so-conscious uncoupling between cleared contractor employers and employees. These are scenarios where the employer, the employee, or both let emotions and ego carry the day while parting ways. They are almost always avoidable by thinking before acting, remaining calm, and playing the long game; but people lose sight of those things in the heat of separation, and the results are uniformly bad. With that in mind, here are some observations that cleared contractor employers and employees alike may wish to consider.
Employers
One of the worst things I’ve seen employers do is file vindictive and trumped-up security incident reports against cleared employees on their way out the door. Nothing ignites the fury of a former employee quite like damaging their cleared employment prospects post-separation. Angry people do unpredictable things – like file lawsuits. And the single circuit court case cited in the National Industrial Security Policy Operating Manual as purporting to protect employers against lawsuits isn’t the absolute immunity shield that some employers seem to think it is. Filing a bogus and/or retaliatory incident report in the Defense Information System for Security (DISS) or directly with the federal agency customer can ignite not only civil litigation, but also a whistleblower reprisal complaint in some circumstances.
That brings me to my second observation: employers, train your managers and security personnel on whistleblower reprisal laws. Commonly implicated ones in the security clearance context include, but are not limited to, 10 U.S.C. § 4701, 10 C.F.R. § 708, 50 U.S.C. § 3341(j), and 41 U.S.C. § 4712. Some of these laws subject government contractors to federal agency Inspectors General investigation and can result in severe penalties like fines and publication of the employer’s unlawful conduct on the Inspector General’s website. Despite this potential liability, few government contractors seem to be aware of the risks, much less training their front-line supervisors and human resources personnel on how to avoid them.
No matter the situation, the smart employer always consults with legal counsel and maintains a strong paper trail before terminating an employee or allowing in-house security personnel to report derogatory information on a cleared employee to the government customer. A bit of due diligence goes a long way in minimizing liability.
Employees
Resist the urge to “clap back” by firing off a nasty departing email or letter on the way out. It may feel good in the moment, but these things rarely age well and usually wind-up in the employee’s permanent human resources file, where they sit like ticking time bombs until a future prospective employer calls for a reference check. If you are leaving under allegations of misconduct, leaving a paper trail that underscores the employer’s claims about your character is also a great way to self-sabotage a future security clearance background investigation – especially when the allegations are otherwise lacking in substantive proof.
On that same note, it isn’t uncommon for bitter departing employees to vandalize company property or steal proprietary information like trade secrets, customer lists, or contract bidding deliberations. I implore readers not to be one of them. Sophisticated employers like most government contractors have robust (and not always self-evident) internal controls in place designed to catch such activity and identify the perpetrator. A nasty email or letter is a bad look that can call into question your judgment and maturity; but moral turpitude allegations like vandalism or theft are an even quicker ticket to security clearance revocation – and potentially a criminal investigation.
With a bit of self-control and some common sense, both cleared employers and employees can often minimize separation headaches and part ways on respectful, if not cordial, terms. That’s “conscious uncoupling” that even Gwenyth would be proud of.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
