OPM Finalizes Rule Letting Agencies Fire Current Employees as 'Unsuitable'
OPM has finalized a new suitability rule that lets agencies remove current federal employees for serious misconduct that happens after they're hired — closing a gap that, until now, meant it was easier to permanently bar an applicant from federal service than to remove an employee for the same conduct once they were already on the job.
What the New Suitability Rule Changes
The final rule, titled Suitability and Fitness, takes effect 30 days after publication in the Federal Register. Historically, OPM's suitability process governed only who could be hired; a 2011 Merit Systems Protection Board decision held that OPM could not use that same process against conduct occurring after someone became a federal employee. Since then, agencies seeking to remove a current employee for misconduct have generally relied on the adverse-action process under Chapter 75 of Title 5 — a process OPM describes as slow and inconsistently used. The new rule erases the line between applicant and employee, allowing OPM to take a suitability action, including removal or a government-wide bar, against current employees based on conduct that occurs during their federal careers.
New Grounds for an Unsuitability Finding
The rule adds several new categories of conduct that can support an unfavorable suitability finding, including:
- Failing to comply with financial or other civil legal obligations, such as not filing tax returns on time
- Misusing government resources or equipment, or losing them through negligence
- Refusing to certify compliance with nondisclosure obligations tied to handling government information
OPM has said these factors are meant to target deliberate or reckless conduct rather than honest mistakes, though how that distinction plays out in practice will depend on the facts of each case.
How the Process Works
Under the rule, an employee's own agency must first identify conduct serious enough to warrant a suitability referral and send the case to OPM, which makes the final call. Agencies can still choose ordinary Chapter 75 discipline instead. Employees facing a suitability action retain several due process protections: written notice of the proposed action and the reasons for it, the right to review the evidence, the right to respond in writing, the right to representation, and the right to appeal the final decision to the MSPB. What's new is the added consequence — OPM can bar an employee government-wide from competitive service or career Senior Executive Service positions for up to three years, a penalty standard Chapter 75 removals don't carry.
The Nondisclosure Connection
The nondisclosure ground is worth watching closely if you've made a protected disclosure or you're being asked to sign a new nondisclosure agreement. Tying suitability to nondisclosure compliance means a referral could, in some circumstances, follow closely on the heels of a disclosure you made in good faith. If that happens, whistleblower protection laws may still apply regardless of how the suitability process is framed.
Practical takeaway: If you're referred for a suitability action, or you're asked to sign a new NDA, save everything — every notice, every date, every document connecting the action to something you reported.
Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. You can contact Southworth PC at attorneysforfederalemployees.com.