Security clearance investigations are a regular part of the United States federal government employment process for any job that requires eligibility for access to classified information.
However, investigations can be complex, stressful, and lengthy, and what's more, all require periodic reinvestigation. Employees undergoing a security clearance investigation often face uncertainty about their job status, privacy, and legal rights. Some may fear unjust denials, retaliation from employers, or even termination based on the outcome of their investigation. Fortunately, legal protections for employees are available throughout the entire process.
Your Rights in a Security Clearance Investigation
Employees undergoing a security clearance investigation are granted fundamental rights designed to create fairness, transparency, and due process. Employees must provide accurate and complete information during the background investigation, but they also have the right to privacy. This means that authorized investigations must follow established federal guidelines and cannot be used as a means of unwarranted surveillance or harassment. If an employee believes their investigation is being mishandled, they have the right to seek legal counsel to ensure the process remains fair and adheres to federal laws.
Due Process Protections in Security Clearance Investigations
The U.S. Constitution guarantees due process rights to individuals facing governmental action that could impact their employment and livelihood. This applies to security clearance investigations, where employees must be afforded an opportunity to present their case before an adverse decision is finalized.
If a clearance is denied or revoked, the employee has the right to receive a written explanation outlining the reasons for the decision. In most cases, they are also entitled to access the evidence used against them. The employee can challenge the decision by submitting additional documentation, offering clarifications, or requesting a personal appearance.
Anti-Retaliation and Whistleblower Protections
One major concern for employees undergoing security clearance investigations is the risk of retaliation. Some employers may exploit the clearance process to justify adverse employment actions against whistleblowers or employees who raise concerns about workplace misconduct. Fortunately, federal laws provide strong protections against such retaliation.
The Whistleblower Protection Act (WPA) and Presidential Policy Directive 19 (PPD-19) prohibit federal agencies from taking retaliatory action against employees who disclose government fraud, abuse, or violations of law. If an employee reports wrongdoing and subsequently experiences delays, unwarranted scrutiny, or revocation of their security clearance, they may have grounds for a whistleblower retaliation claim.
Employees who suspect they are being targeted due to whistleblowing activities should document any suspicious actions taken against them and seek legal assistance immediately.
Privacy Rights and Limitations During the Investigation
Security clearance investigations require a thorough review of
the applicant's background, including financial records,
criminal history, and even social media activity. While the
government has broad authority to conduct these investigations,
applicants still maintain certain privacy rights.
Investigators must follow the Privacy Act of 1974, which sets
restrictions on the collection, use, and dissemination of personal
information. Applicants have the right to request and review
records maintained about them, so that incorrect or outdated
information is not used in the decision-making process.
However, employees should also be aware that refusing to provide requested information or omitting relevant details can result in clearance denial. While investigators must respect privacy protections, employees must comply with reasonable requests related to national security information or concerns.
The Role of Legal Counsel in Security Clearance Cases
Attorneys practicing in federal employment law and security clearance cases can provide invaluable guidance on responding to investigative inquiries, complying with legal requirements, and challenging unfavorable decisions. Legal counsel is especially important if an employee is facing a clearance denial, suspension, or revocation. You must act quickly because there are strict deadlines that must be met.
A lawyer can help prepare a strong response, gather supporting documentation, and represent the employee during appeal hearings, investigations, and adjudications. In cases where an individual suspects retaliation, discrimination, or procedural violations, an attorney can also assist in filing complaints with the appropriate oversight agencies.
What to Do If Your Clearance Is Suspended or Denied
If you receive notice that your security clearance is suspended or revoked, take the following steps:
- Review the notice carefully: Understand the reasons for the decision and the deadlines for appeal.
- Gather supporting evidence: Collect documents, performance reviews, and character references that may support your case.
- Consult a security clearance attorney: An experienced lawyer can help build a strong appeal and represent you in hearings.
- Prepare for a formal hearing: If your initial appeal is denied, you may request a personal appearance or hearing where you can present evidence before an agency decision maker or administrative judge.
- Pursue additional legal remedies: There is often an option to file a written appeal to have the administrative judge's decision reviewed by an appeal board if the final decision is unfavorable.
Remember, acting fast can improve your chances of reversing an unfavorable decision.
Appealing an Unfair Security Clearance Decision
The appeals process varies by agency but generally includes an opportunity to attend a hearing, submit additional evidence, request reconsideration, or present a case before a review panel. In many cases, the employer allows employees to remain in their position while the appeal is pending. However, a final denial may result in job loss, particularly for roles that explicitly require a security clearance. In such situations, legal counsel can help explore other legal remedies, including employment discrimination claims or wrongful termination lawsuits.
Speak With a Lawyer Today
If you believe your rights have been violated, or if you are facing a clearance denial, suspension, or retaliation, seeking legal representation is the best way to protect your career and future. Speaking with an experienced security clearance attorney can help you challenge unfair decisions, appeal denials, and uphold your legal protections for employees throughout the process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
