Government contractors and subcontractors operate within the world of security clearance obligations. Most employers understand that this means dealing with plenty of red tape and regulatory compliance when bringing new employees on board. But few realize that clearance-related obligations can collide with employment law obligations when an employee who holds a clearance files a workplace complaint. Employers need to understand how to navigate the interplay by separating the two.
Consider a familiar scenario. A cleared employee raises concerns about a supervisor’s conduct, a potential compliance issue, or even perceived discrimination. Shortly afterward, the employee’s responsibilities shift, their access is questioned, or concerns about their judgment begin to surface. From the employer’s perspective, this may feel like prudent risk management; after all, an employer needs to be sure they are on the same page with employees who have access to privileged information or secure facilities. Workplace conflict can raise legitimate questions about judgment and reliability. But if the employer’s response is triggered by the complaint itself, that can look a lot like retaliation.
On the one hand, employment laws broadly protect employees who engage in “protected activity,” including complaints about discrimination, harassment, or other unlawful practices. Retaliation claims are among the most frequently asserted and most difficult for employers to defend, in part because the focus is often on timing and motive rather than the merits of the underlying complaint. But, a finding of retaliation often is the result of the actions of a supervisor or employer who had no intention of retaliating against their employee but simply misread the situation and failed to handle it properly.
On the other hand, employers working with cleared personnel may have obligations, whether contractual, regulatory, or practical, to report or act on information bearing on an employee’s trustworthiness, reliability, or judgment. That could include issues such as misusing systems, mishandling sensitive information, threats, or conflicts of interest. Such workplace disputes or conduct that, in another setting, would remain purely an HR matter can have security implications in a clearance setting.
When a complaint is followed quickly by adverse action framed as a “security concern,” courts and agencies may scrutinize whether that rationale is genuine or pretextual. Vague assertions about the employee’s judgment or reliability, especially if those concerns are the flip side of the protected activity, can undermine an employer’s position.
An example can help illustrate the matter. Imagine an employee who holds a clearance is friendly with someone who is applying for a similar position in the same company. The applicant’s clearance request is rejected, so he does not get the job. The applicant then files a complaint alleging discriminatory hiring practices, and the cleared employee acts as a witness on behalf of the applicant during the complaint process. If the employer takes any action modifying the cleared employee’s duties, the key question is whether the action was taken because of the employee’s protected activity or because of a potential security risk.
Documentation and consistency are the difference between a defensible security-based decision and retaliation. If your policies are clear about what constitutes a security risk and how such risks are handled, and those policies are applied consistently, the fact that it coincides with the employee’s protected activity is less problematic. Employers should be able to point to a written policy, substantiated facts that triggered the policy, who made the security determination and why, and other similar situations where the same decision was made.
But there are a few common pitfalls to be careful of. First, employers sometimes conflate disruption with risk. An employee who raises concerns may be viewed internally as difficult or disloyal, but that perception does not necessarily translate into a legitimate, non-retaliatory basis for action. Second, organizations may lack clear separation between HR processes and security determinations. When the same decision-makers handle both, determinations can get muddled and it becomes harder to demonstrate that actions were based on independent, legitimate considerations.
What can employers do to minimize your litigation risk when a complaint is filed?
Navigating the overlapping legal and security clearance obligations is difficult without a skilled partner who is familiar with the lay of the land. Luchansky Law can help you put the right processes in place ahead of time and can provide real-time guidance and training to your HR and management teams so you can follow your documented procedures with confidence. Call us at 410.522.1020, or email me today at alan@luchanskylaw.com.
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