Monday, February 28, 2011

Federal Government Applicants: Watch Out for the “Optional Form 306” (OF-306) Trap

To be hired into the Government, you will need to complete a lot of paperwork, including probably an “Optional Form 306” (OF-306) which asks you a host of background questions about whether you have any criminal history, etc. You should tell the truth on this form! If there is an error on this form, you could be fired during your probationary period.

In your probationary period, you are, however, entitled to notice in writing and an opportunity to respond before you can be fired for a pre-employment reason, like a false or erroneous answer on the OF-306. See 5 C.F.R. §315.805. HOWEVER, Government agencies are trying a clever new tactic to get around this important requirement which allows you to explain yourself – making you re-sign the OF-306 during Entry-on-Duty (“EOD”). By re-signing the document on your first day at work, the Government argues, it is no longer a pre-appointment issue, and therefore, you are not entitled to the notice/opportunity to respond provided by §315.805. Do not let an Agency get away with this strategy, which goes against decades of history reinforcing your right to be heard before being fired for something you did before you started working for the Government.

In the nearly 50 years since the implementation of the regulation requiring procedural safeguards in terminations of probationary employees for pre-employment reasons, never has any precedent allowed an Agency to avoid the requirements of 5 C.F.R. §315.805 simply because an employee attested to the veracity of his pre-employment submissions during Entry-On-Duty.

Though procedural safeguards for terminations of federal employees were not incorporated specifically into the original rule creating a Civil Service Commission (the Pendleton Act, 22 STAT. 403, ch. 27, (1883)), they were implemented nearly 100 years ago - in the Lloyd-LaFollette Act of 1912, 37 Stat. 555; 5 U.S.C. §652. See Bush v. Lucas, 462 U.S. 367, 381-384, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Section 6 of the Act of August 24, 1912 provides, inter alia: “That no person in the classified civil service of the United States shall he removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing….”

Leading up to World War II, Title 5 of the Code of Federal Regulations of 1938, Sections 7.1(c), 12.1, and 12.101 specifically provided for notice in writing with a “full statement of reasons” to a probationary employee, but did not enumerate that termination of a probationary employee for pre-appointment reasons required additional procedures. 5 CFR from 1938, secs 7.1 and 12.1, 12.101. Indeed, the Civil Service Commission’s powers in 1938 were quite limited, even for employees who had completed their probationary periods. See, e.g., 5 CFR from 1938, at 12.4.

The number of federal employees exploded with World War II, and various Executive Orders and revisions to the 1912 Act were implemented to allow exploration of federal employees’ backgrounds – and, in particular, their loyalty to the United States, in light of the War and the surge of McCarthyism (searching for associations with Communists) during the Cold War thereafter. See, e.g., Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (1956) (discussing history of loyalty oaths and dismissal of employees with pre-employment history of Communist associations); Exec. Order No. 10,450, 18 Fed. Reg. 2489, 1953 WL 5976 (Pres.Exec.Order) (Pres. Eisenhower-era Executive Order authorizing agencies to conduct loyalty review for inter alia Communist associations and mandating the Civil Service Commission to track loyalty investigation information); Welcker v. U.S., 752 F.2d 1577, 1578-1579 (Fed. Cir. 1985) (discussing history of loyalty oaths).

In 1954, President Dwight Eisenhower expanded the power of the Civil Service Commission generally to encompass greater investigative authority. See Exec. Order No. 10,577, 19 Fed. Reg. 7521, 1954 WL 6021 (Pres.Exec.Order). Under Sec. 5.4(c) of EO10577, the Commission was empowered to overturn adverse actions and reinstate employees where procedures were not followed in effecting such, or where adverse actions were “taken for political reasons except as may be required by law, or resulted from discrimination because of marital status.”

By the final months of John F. Kennedy’s presidency, on the brink of the civil rights era, still reeling from the abuses of McCarthyism, new regulations were implemented largely reflecting the same procedural safeguards for probationary employees related to terminations on pre-employment grounds that are in place today. Published September 14, 1963, to go into effect just days before Kennedy’s assassination (November 17, 1963), the Federal Register, beginning at 22 Fed.Reg. 10022, contains 5 C.F.R. § 315.805 regarding termination of probationers for conditions arising before appointment.

The 1963 regulation states:
When an agency proposes to terminate an employee serving a probationary or trial period for reasons based in whole or in part on conditions arising before his appointment, the employee is entitled to the following:

(a) Notice of proposed adverse action. The employee is entitled to an advance written notice stating the reasons, specifically and in detail, for the proposed action.
(b) Employee's answer. The employee is entitled to a reasonable time for filing a written answer to the notice of proposed adverse action and for furnishing affidavits in support of his answer. If the employee answers, the agency shall consider the answer in reaching its decision.
(c) Notice of adverse decision. The employee is entitled to be notified of the agency's decision at the earliest practicable date. The agency shall deliver the decision to the employee at or before the time the action will be made effective. The notice shall be in writing, inform the employee of the reasons for the action, inform the employee of his right of appeal to the appropriate office of the commission, and inform him of the time limit within which the appeal must be submitted as provided in § 315.806(d).
As such, by 1963, the regulation we have today was largely in its final form, and gave probationary employees important procedural protections as to adverse actions premised on matters which arose pre-employment, which, earlier (recall the 1938 regulations) had only been available after probation. See also Christian v. New York State Department of Labor, Division of Employment, 414 U.S. 614, 618 n. 4, 94 S.Ct. 747, 39 L.Ed.2d 38 (1974) (citing 5 C.F.R. §315.805 with essentially the same requirements as today).

Though the Civil Service Reform Act of 1978 (CSRA) is considered the most comprehensive legislation expanding Federal employees’ rights since the Pendleton Act of 1883 (see N.L.R.B. v. Ohio New and Rebuilt Parts, Inc., 760 F.2d 1443, 1446 (6th Cir. 1985) (citing S.Rep. No. 969, 95th Cong., 2d Sess. 45, S.Rep. No. 95-969 (1978), the CSRA did not shift the strong regulatory, procedural protections already in place to protect probationary employees relating to terminations for pre-employment reasons. The CSRA did implement strong language intending to ensure that Federal employees be terminated “for the right reasons” – and not arbitrarily or capriciously – and the Merit Systems Protection Board was created to replace the Civil Service Commission with that paramount objective. The framers of the CSRA explained, “The Merit Systems Protection Board will assume principal responsibility for safeguarding merit principles and employee rights…,” noting, “There is little doubt that a vigorous protector of the merit system is needed.”

One of the cardinal values underpinning the creation of the Board was to protect applicants and probationary employees, as well as longer-term employees, “against inquiries into, and actions based upon, non-job-related conduct.” “The privacy and constitutional rights of applicants and employees are to be protected.” See also the Senate Report, stating: “Employees are to be retained on the basis of their performance….”; “Employees are to be protected against arbitrary action….” The legislative history regarding performance-based actions (under Section 43 of the CSRA) notes that “it is inappropriate to restrict an agency's authority to separate an employee who does not perform acceptably during [the probationary] period,” but there is no similar language regarding conduct-based actions under Chapter 75, and certainly no such language relating to pre-employment reasons for termination. In sum, probationary employees had been and remained procedurally-protected after the CSRA’s passage. Indeed, the Senate Report discussing the rationale for the CSRA’s provisions on conduct-based adverse actions focused largely on how extensively the procedural protections for employees were increased and codified by the statute.

Until the administration of Bill Clinton eliminated the Federal Personnel Manual in 1994 during its “reinventing government” campaign, the latter gave detailed instructions on how Federal agencies were to comply with §315.805. Though the Manual is no longer extant, it remains illustrative of the sort of things agencies can do to ensure compliance with the largely-unchanged §315.805:

Termination for pre-appointment reasons. When the termination action is initiated for reasons based in whole or in part on something that occurred before entrance on duty (such as the intentional falsification of application forms or other pre- appointment documents), the probationer is entitled to advance notice which:
-- states the reasons in sufficient detail for the employee to be able to understand and reply to them;
-- informs the employee that he or she may reply in writing with supporting affidavits;
-- identifies the individual or office to receive the reply; and
-- sets a reasonable time for its preparation and return of the reply.
(This gives the probationer essentially the same consideration he or she would have received from OPM had the derogatory information come to light before appointment.)

A probationer is not entitled to a hearing. If after giving bona fide consideration to the employee's response, the agency decides to proceed with the termination, it must notify the employee at or before the time the action will be made effective. The notice must state the reasons for the action and clearly identify which of the charges in the advance notice are being relied upon, the effective date, and the right to appeal to the Merit Systems Protection Board under the limited circumstances in section 8-7 of this subchapter. (The probationer may appeal only the procedures, not the merits of the action.) The procedures discussed in this paragraph do not apply when OPM directs the termination.

Federal Personnel Manual: 8-6.d, “Taking Action against Probationers.”

Though 5 C.F.R. §315.805 has been amended since it took roughly its present form in the early 1960’s, it has never been amended to permit terminations of probationary employees relating to their responses on pre-employment or EOD forms without providing such individuals their procedural rights. See, e.g., 55 Fed. Reg. 29339-01, 1990 WL 335863 (F.R. July 19, 1990) (amendment expanding scope of protections of §315.805). Most recently, in 2008, the Office of Personnel Management (OPM), now charged (along with the President) with issuing regulations governing appointments and the probationary period (5 U.S.C. §1302; 5 U.S.C. §3321), only expanded the rights accorded regarding terminations during probationary periods, conforming to several precedential Federal Circuit and Merit Systems Protection Board cases. See 72 Fed. Reg. 23772-01, 2007 WL 1243729 (F.R. May 1, 2007) (notice of proposed rulemaking outlining intent of regulatory changes to adopt into regulations the interpretations provided in significant decisions of this Court and the Board, regarding manner of crediting time toward completion of probationary period); 73 Fed. Reg. 7187-01, 2008 WL 319999 (F.R. February 7, 2008) (final rule embracing this rationale and adopting the current language of §315.805, with the introduction to the regulation still (as in 1963) containing the procedural entitlements where terminations are proposed “based in whole or in part on conditions arising before his appointment”).

In this most recent revision to §315.805, OPM did not adopt a standard to reform the regulations in the manner the Government is now seeking to implement - i.e., that pre-appointment matters subject to the employee’s attestation during EOD become post-appointment matters, eliminating the Board’s jurisdiction to hear procedural challenges.

If you have a case involving termination from the Federal Government during your probationary period for pre-employment matters, contact Bryan Schwartz Law today.