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Hello:  As a government contractor, if you collect the paperwork for (secret) security clearance submission (from potential candidates whose job offers are contingent upon successful security clearance), and the candidate lists past drug use or some other potentially disqualifying factor, what do you do?  On one hand, the candidate might still pass clearance so I can understand that’s it is not up to the contractor to pull the candidate from the running.  On the other hand, the security clearance process is expensive, and it’s a waste of taxpayer money to put a candidate through the process in any respect if there is a good chance of rejection.  Does anyone have guidance to offer on this question.  Thanks so much in advance!

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Can you ask your KO this question? Thanks for considering the cost to the taxpayers!

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The KO asked that we not provide candidates that have such issues.  But I’m concerned from a company liability standpoint that we are making the call instead of the government customer, and potentially turning away good candidates without seeing if they could make it through the process.

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10 hours ago, lawyergirl said:

Hello:  As a government contractor, if you collect the paperwork for (secret) security clearance submission (from potential candidates whose job offers are contingent upon successful security clearance), and the candidate lists past drug use or some other potentially disqualifying factor, what do you do?  On one hand, the candidate might still pass clearance so I can understand that’s it is not up to the contractor to pull the candidate from the running.  On the other hand, the security clearance process is expensive, and it’s a waste of taxpayer money to put a candidate through the process in any respect if there is a good chance of rejection.  Does anyone have guidance to offer on this question.  Thanks so much in advance!

Have you looked at EEOC's guidance?  "Commission review of claims involving national security clearances may nonetheless be appropriate where the Commission can resolve the matter without considering the merits of a security clearance decision.  For instance, the Commission may review...whether procedural requirements for making security clearance determinations were followed without regard to an individual's protected status."  EEOC, Enforcement Guidance on National Origin Discrimination (Nov. 1, 2016).  After a quick search I found "Policy Guidance on the Use of the National Security Exception in § 703(g) of Title VII of the Civil Rights Act of 1964, as amended" (May 1989).  The guidance lists some examples.  The only example I saw where the COMPANY's review of the paperwork was relevant involved a fact pattern where there was some urgency:

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Example 3 - Z company loses a senior scientist two months before the deadline on a large defense contract with the federal government. In order to meet the contract deadline, Z must hire a replacement scientist immediately. Statutes dictate that persons working on defense contracts of this nature have a security clearance. CP, a woman, is selected as the most qualified scientist for the position. Z's security specialist looks over CP's security clearance forms and discovers that CP has relatives living in a communist country. The security specialist knows, from past experience, that this will result in a lengthy security clearance process of greater duration than the contract. Z does not hire CP but hires another qualified scientist, who is male, and who already has the required security clearance. Z's employment actions in this situation were based on legitimate nondiscriminatory reasons and thus do not violate Title VII.

I don't know how current or on point this quote is, I offer it merely to encourage you to search private sector EEOC decisions and guidance.

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29 minutes ago, lawyergirl said:

The KO asked that we not provide candidates that have such issues.  But I’m concerned from a company liability standpoint that we are making the call instead of the government customer, and potentially turning away good candidates without seeing if they could make it through the process.

Is it a personal services contract?

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33 minutes ago, lawyergirl said:

It’s a services contract.  We select qualified specialists to fill certain spots.

I think you are right to be concerned about the company's potential liability as the employment decision is with the company.

Are you going to be asking for a pre-appointment waiver or something like it?  If so, when you do, and you submit the questionnaire, it seems to me you could bring your concerns to the Government security folks' attention.  If the Government doesn't grant the pre-appointment waiver, and having the clearance is a condition of employment, it seems you could reasonably rely on the Government's refusal to provide the waiver as a basis for the employment decision.

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11 hours ago, lawyergirl said:

Hello:  As a government contractor, if you collect the paperwork for (secret) security clearance submission (from potential candidates whose job offers are contingent upon successful security clearance), and the candidate lists past drug use or some other potentially disqualifying factor, what do you do?  On one hand, the candidate might still pass clearance so I can understand that’s it is not up to the contractor to pull the candidate from the running.  On the other hand, the security clearance process is expensive, and it’s a waste of taxpayer money to put a candidate through the process in any respect if there is a good chance of rejection.  Does anyone have guidance to offer on this question.  Thanks so much in advance!

It's interesting to me that a contractor would make job offers contingent upon receiving a successful clearance. That process could, and often does, take many months to complete. During that time, what is the potential employee doing? Searching for another job at another company, I hope.

Alternate courses of action, for consideration:

1. Post job offers that require an active clearance. Anybody without an active clearance is rejected as not meeting requirements.

2. Hire people who don't have clearances, with the understanding that if they don't receive a clearance, they will be moved to another position that doesn't require a clearance or terminated. What do they do in the meantime (while waiting for the clearance)? Perhaps there are some other tasks that need to be done. Perhaps they can receive training to prepare them for successful execution of their job duties when the clearance is received. Maybe hand them a broom or a mop and tell them to clean offices. The point is, put them to work and receive benefit.

Yes, the clearance process is expensive but it's also a routine cost of doing business. Normally, it's an indirect cost because it's so prevalent.

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Companies consider potential impact on their bottom dollar.  Period.  Riskier candidates could mean delayed revenue and possible contract default.  Is the risk worth the reward?  Most for profit companies, if not all, couldn’t care less how much it costs the Government to run a background check.

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This practice of government approving candidates prior to starting always bothered me.  It’s something both government and contractors need to jointly stop.  If the government did a good job with source selection, they should completely trust the contractor will provide high quality employees.  If they can’t do that, make the source selection process needs tweaking.  If employee characteristics and capabilities are important and how the company provides those, that’s easy to evaluate along with past performance.  Otherwise this practice borders on personal services.

The other side is I personally wouldn’t want to work for a company that employees based on a government job.  So employment starts and ends based on specific engagement?  

 

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6 minutes ago, formerfed said:

The other side is I personally wouldn’t want to work for a company that employees based on a government job.  So employment starts and ends based on specific engagement?

This happen sometimes.  For example, the need for linguists in Iraq and Afghanistan has caused companies to hire people they otherwise would not hire.  Further, employment of such people is frequently contingent upon them passing a language test with a certain score.

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8 hours ago, Retreadfed said:

This happen sometimes.  For example, the need for linguists in Iraq and Afghanistan has caused companies to hire people they otherwise would not hire.  Further, employment of such people is frequently contingent upon them passing a language test with a certain score.

That instance makes sense I guess.  But where the improper stuff happens are contracts for routine support - IT development, operations, advisory & assistance, engineering and professional services, and technical consultants.  I constantly see and hear PMs say they need to interview new hires to see how well they’ll fit in, they want to ask tough questions to see if the new hires knows what the resume says, or if they like the person’s attitude!  I’ve done lots of interviews and see numerous resumes and am amazed at how frequently people’s jobs change.  Reasons given are government requirements for the individual position changed, cut back in government funding, company lost the recompete, and a government PM wanted someone else.  So the employee is just let go. 

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