Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—OPM initiates rulemaking on suitability criteria, applicability for certain federal employees, (Jun 2, 2025)

By Brandi O. Brown, J.D.

According to OPM, one purpose of the proposed rule is “to make clear that individuals who engage in serious misconduct while employed in Federal service are subject to the same suitability procedures and actions as applicants for employment.”

In a proposed rule due to be published in the Federal Register on June 3, 2025, the Office of Personnel Management (OPM) is proposing amendments to the processes for determining suitability and taking suitability actions with regard to employment in the competitive service or career Senior Executive Service. According to OPM, the proposed rule’s purpose is partly “to improve the efficiency, rigor and timeliness by which OPM and agencies vet individuals for risk to the integrity and efficiency of the service,” but also partly “to make clear that individuals who engage in serious misconduct while employed in Federal service are subject to the same suitability procedures and actions as applicants for employment.”

Part 731 of Title 5, Code of Federal Regulations, establishes and maintains OPM’s policies and procedures governing suitability and fitness investigations and adjudications. At the end of the Biden administration, in December 2024, a final rule was issued that revised some of those provisions. One factor added at that time to the suitability and fitness determinations made during the vetting process, under Section 731.202, was for violent conduct not accounted for by another factor.

In Executive Order 14210, President Trump required OPM to initiate a rulemaking proposing to revise 5 C.F.R. 731.202(b) to include suitability criteria. This instruction was reiterated in a March memorandum.

Continuous vetting. As a result, OPM seeks to add a few more factors, as well as to expand the suitability action capabilities available for job applicants to apply to current employees as well. “Under this proposed rule, when continuous vetting uncovers information that results in a determination that an individual employed in the competitive service or career Senior Executive Service is no longer suitable for service, the situation can be remedied by the next logical step: a suitability action.” This “ensures that implementation of continuous vetting as required by E.O. 13467, as amended, as part of the Trusted Workforce 2.0 initiative,” according to OPM, and also implements Sec. 3(d) of EO 14210.

EO 14210 directed the OPM Director to initiate a rulemaking that would include four additional suitability criteria: “failure to comply with generally applicable legal obligations, including timely filing of tax returns”; “failure to comply with any provision that would preclude regular Federal service, including citizenship requirements”; “refusal to certify compliance with any applicable nondisclosure obligations, consistent with 5 U.S.C. 2302(b)(13), and failure to adhere to those compliance obligations in the course of Federal employment”; and “theft or misuse of Government resources and equipment, or negligent loss of material Government resources and equipment.”

Post-appointment conduct. The first significant change proposed by the rule includes establishing in regulation OPM’s “authority to take suitability actions against competitive service and career Senior Executive Service appointees and employees based on post-appointment conduct related to any of the suitability factors in 5 CFR 731.202.” The proposal “would expand OPM’s existing authority to take suitability actions against employees for conduct falling under specific suitability criteria in 5 CFR 731.203(e) so that OPM may take suitability actions against employees for any of the suitability factors in 5 CFR 731.202.”

Additional criteria. OPM proposes to incorporate additional criteria as directed in EO 14210. “Two of these criteria – theft, misuse, or negligent loss of government resources and equipment, and refusal to certify compliance with, and/or adhere to, applicable non-disclosure obligations – are examples of misconduct or negligence in employment, a current suitability factor.” Thus, OPM proposes to add those criteria as examples that fall under 5 CFR 731.202(b)(1). OPM also proposes to add a third example of employment misconduct under this factor, specifically, refusal to furnish testimony as required by 5 CFR 5.4. OPM proposes incorporating the other two factors specified in EO 14210, namely, failure to comply with legal obligations and failure to comply with provisions that would preclude Federal service, including citizenship requirements, into the list of suitability factors.

Finally, OPM proposes changes to the procedures it follows to take a suitability action against an applicant, appointee, or employee.

Comments must be received on or before the date that is 30 days after the date of publication in the Federal Register.

News: FederalRegulations AgencyNews PublicEmployees