Suitability actions now reach employees, not just applicants

The Office of Personnel Management published a final rule on 30 June 2026 amending 5 CFR part 731, the regulation governing suitability for federal employment.¹ Suitability is the character-and-conduct screen historically applied to people seeking to enter the service; the rule makes it “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.”¹ It takes effect 30 July 2026 and follows a proposed rule of 3 June 2025, on which OPM “received 1,479 comments” during a 45-day period “from multiple individuals, multiple labor organizations, and a professional organization representing employment law lawyers.”¹² OPM attributes the changes to Executive Order 14210 of 11 February 2025 and to a Presidential Memorandum of 20 March 2025, neither of which the corpus covers.¹³⁴

1. The rule’s stated need is that the existing route is too hard to use. Under the heading “Statement of Need,” OPM writes that “[a]n agency currently must rely on the protracted Chapter 75 process when the agency identifies conduct that poses risk to the efficiency and integrity of the service,” and that “[a]gencies reported they often decline to act because the Chapter 75 process is perceived as too difficult, leaving unsuitable employees in the workplace.”¹ Chapter 75 of title 5 is the adverse-action scheme — the notice, reply, representation and appeal rights that attach when a tenured employee is removed.⁵ The rule does not amend those procedures; it supplies a different route to the same outcome.

2. The two routes run in parallel, and OPM holds the tiebreaker. New § 731.202(g) provides that “[a]n action to remove an appointee or employee for suitability reasons under this part is not an action under 5 CFR part 11, 359, or 752,” and that where the same conduct could support either, an agency “may take the action under 5 CFR part 11, 359, or 752, as appropriate, instead of under this part.”¹ But the choice is not final: “OPM reserves the right to also take an action under this part,” and § 731.103(f) states that OPM “retains the right to take a suitability action even in those cases where the agency makes an adjudicative determination under another authority.”¹ Part 752 is the chapter 75 adverse-action regulation; part 11 is the Civil Service Rule XI created by executive order in April 2025 (see EO 14284 makes probation end in termination by default).¹⁶

3. Against employees, only OPM may act. Section 731.103(e) provides that “[a]n agency may not take a suitability action against an employee in the competitive service or career Senior Executive Service”; the agency head may instead “make a proper and sufficient referral to OPM,” and OPM “will review the referral and may take a suitability action if warranted.”¹ Commenters objected that the new route offers less protection than the one it sidesteps, and OPM’s answer was definitional: acknowledging “differences in procedures between adverse action procedures under Chapter 75 and suitability actions procedures, to include differences in the scope of reviews,” it wrote that “[d]ue process is simply the right to the process, or procedures, due to the individual based on the action taken,” and that it had “not proposed any changes that would diminish the process an individual receives under the suitability action procedures.”¹ On the statutory objection, OPM stated it “does not interpret 5 U.S.C. 7543 to displace the President’s and OPM’s separate suitability authority.”¹⁷

4. The factors are enumerated, and some are new. Section 731.202(b) lists ten, including “[c]riminal conduct,” “[d]ishonest conduct,” “[v]iolent conduct,” “[f]ailure to comply with financial obligations or generally applicable civil legal obligations, such as timely filing of tax returns,” and “[k]nowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force.”¹ The factor for “[m]isconduct or negligence in employment” now expressly includes “[r]efusal to certify compliance with any applicable non-disclosure obligations consistent with 5 U.S.C. 2302(b)(13) and failure to adhere to those compliance obligations in the course of Federal employment.”¹⁸ Two factors are reserved to OPM alone — fraud in examination or appointment at (b)(3), and the overthrow factor at (b)(8). A third is split the other way: agencies “may use the factor in paragraph (b)(10) in applicant and appointee suitability cases but not employee cases; however, OPM may use this or any factor in employee cases.” That factor is any statutory or regulatory bar preventing lawful employment, so on the rule’s central distinction an agency’s reach over sitting employees is narrower than OPM’s.¹ Three limits arrived with the final rule in response to comments: a new § 731.102(c) requires that suitability determinations “be applied consistent with the Merit Systems Principles set forth in 5 U.S.C. 2301” and with the prohibited personnel practices at 5 U.S.C. 2302(b); the rule is prospective only; and “conduct that was previously known by an agency at the time it made a favorable suitability determination may not be used as the sole basis for a post-appointment conduct suitability action.”¹