The Office of Personnel Management is looking to formalize an automated process for screening federal employees as part of the Biden administration’s bid to modernize governmentwide vetting processes.

The changes are laid out in a proposed rule for “suitability and fitness vetting” published by OPM in the Federal Register last week. Comments on the proposed regulations are due April 3.

The revisions stem from the “Trusted Workforce 2.0” initiative launched under the Trump administration and carried forward by the Biden White House.

“Key goals of the initiative are to capitalize on information technology capabilities that allow for the integration of automation and take advantage of a wider spectrum of data, reduce time-intensive manual processing, and promote greater mobility of the workforce by providing vetting processes that enable each individual’s vetting status to be continuously up-to-date,” OPM’s notice states.

OPM is proposing to move employees throughout government into “continuous vetting,” a process where individuals are subject to background checks at any given time. The process relies on automated record checks to flag for investigators when an employee faces an issue that would put their employment at risk, such as an arrest.

“The nature and specificity of continuous vetting checks will be further defined in supplemental issuances, but requirements will account for position risk and sensitivity designations,” OPM states, noting that medium-and high-risk populations will be subject to more consistent checks than low-risk populations.

With the move to continuous vetting, OPM is proposing to eliminate requirements for employees in public trust positions to undergo periodic background investigations every five years, known as “reinvestigations.”

The move is in line with forthcoming regulations that will also eliminate periodic reinvestigation requirements for national security positions. The vast majority of individuals with security clearances are already enrolled in continuous vetting to meet security requirements governing access to classified information, which are distinct from suitability and fitness standards.

The shift is also expected to help agencies save money. The Defense Counterintelligence and Security Agency’s fiscal 2024 price estimates for vetting services includes a $3 monthly subscription for each individual in a low risk or non-sensitive public trust position.

By comparison, a single five-year reinvestigation for a comparable position would cost about $40 monthly, OPM’s notice highlights.

However, low-risk positions are not currently subject to reinvestigation requirements. And OPM’s rule would have them be included in continuous vetting. But the human resources agency argues the shift will ultimately be worth it for most agencies.

“On balance, while we anticipate there may be additional costs to agencies with much greater proportions of low risk positions than non-sensitive public trust or national security positions, we do not believe that this proposed rule will substantially increase the ongoing costs to most agencies. And the benefits outweigh the costs in providing agencies greater opportunities for timely talent acquisition and reduced risk to people, property, information systems and mission through timely delivery of relevant information,” the notice states.

The shift to continuous vetting has no impact on the requirement for agencies to conduct an initial investigation for an individual applying to federal positions.

But OPM is looking to ensure consistency in screening requirements and processes across the civil service, contractors and non-appropriated fund positions. The rulemaking aims to align requirements for position designations, investigations and suitability/fitness determinations across agencies. Potentially, making it easier and faster for individuals to move between positions across government.

“Background investigations conducted for these positions will be done using the same investigative standards,” the notice states. “Finally, agencies will apply the same rules for determining whether reciprocal acceptance of prior background investigations and suitability or fitness determinations are required.”

OPM takes aim at domestic extremists

OPM is also taking steps to ensure agencies don’t hire individuals affiliated with domestic extremist activities. Instead of delegating those types of decisions to agencies, the White House office is proposing to retain jurisdiction in cases where there is evidence a prospective or current employee has engaged in conduct under an expanded set of factors:

• “Knowing engagement in an act or activity with the purpose of overthrowing federal, state, local or tribal government.”
• “An act of force, violence, intimidation or coercion with the purpose of denying another individual the free exercise of rights under the U.S. constitution or any state constitution.”
• “Attempting to indoctrinate another or to incite another to action in furtherance of an illegal act.”
• “Active membership or leadership in a group with knowledge of its unlawful aim, or participation in such a group with a specific intent to further its unlawful aim.”

The four new factors above would replace the current language, “knowing and willful engagement in acts or activities designed to overthrow the U.S. government by force.”

“These more nuanced factors are narrowly tailored to address conduct that is not protected by the First Amendment, that has a clear nexus to the integrity and efficiency of the civil service, and that poses significant insider threat risks to federal agencies and to the public they serve,” the notice states.

OPM is also proposing to separate “criminal and dishonest conduct” into two separate factors.

“Separating these considerations into two distinct factors will provide clarity that dishonest conduct need not be criminal to be considered relevant to a determination of suitability or fitness,” the notice states.

Meanwhile, the proposal would also add a separate factor for “violent behavior” to account for violence that may not be considered criminal or dishonest.

“We believe that the current suitability factors for ‘misconduct or negligence in employment’ and for ‘criminal or dishonest conduct’ do not convey the gravity of the risk posed by violent behavior. Particularly for positions in, for example, law enforcement, patient care, childcare and front-line customer service,” the notice states.

And the proposed rules also look to clarify how agencies should look at alcohol and drug use. OPM’s proposal would remove the requirement that evidence of rehabilitation for alcohol or illegal drug use must be “substantial,” lowering the barrier to employment for those who previously may have been rejected over past alcohol or illegal drug use.

It would also change the “alcohol abuse” factor to “excessive alcohol use” instead.

“We believe this change better represents the intent of the factor, which is to account for an individual’s problematic misuse of alcohol. Such as, by binge drinking or heavy drinking over a period of time and suggesting that the individual would be prevented from performing the duties of the position or would constitute a direct threat to the property or safety of themselves or others as a result,” the notice states.

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