UNCLASSIFIED (U)

3 FAM 7730

LE Staff SEPARATIONS

(CT:PER-958;   09-20-2019)
(Office of Origin:  HR/OE)

3 FAM 7731  POLICY

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

Under the authority of section 612 of the Foreign Service Act and 22 U.S.C. 2669(c), LE Staff may be separated consistent with local law and the guidance in this subchapter.  The agency heads at each mission are responsible for developing uniform policies governing the separation of LE Staff.  In no case should a separation be arbitrary or capricious.

3 FAM 7732  TYPES OF SEPARATION

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

This section provides a general overview of the most common types of separation actions.  Local law often has comprehensive requirements governing separation actions, and each post is responsible for consulting with local counsel to ensure that its separation actions and procedures are consistent with local law. (See 2 FAM 282 for procedures to request authorization from the Office of the Legal Adviser to retain local labor counsel.)

3 FAM 7732.1  Separation for Cause

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

a. Separation for cause is a separation based on performance or conduct issues.  In most cases it is the final step after unsuccessful use of performance management and/or progressive discipline procedures to improve performance/conduct to an acceptable level.

b. To ensure compliance with applicable law, post should consult with local labor counsel before separating an employee for cause.

c.  At a minimum, post should ensure the following before separating for cause:

(1)  That it has sufficient basis under local law to establish a separation for cause.  In many countries, local law enumerates the limited reasons for a separation for cause;

(2)  That it can follow all local law procedures for a separation for cause; and

(3)  That, in any subsequent litigation, it will be able to disclose, with appropriate Department authorization, the documentation needed to support the separation for cause.

d. If post is not able to comply with (1) – (3) above, post should generally proceed with an involuntary separation, to the extent consistent with local law.  (See 3 FAM 7732.2.)  However, if post still believes that separation for cause is more appropriate, it should consult with HR/OE and the Office of the Legal Adviser/Employment Law (L/EMP) prior to separating the employee for cause.

3 FAM 7732.2  Involuntary Separations

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

a. There may be circumstances that justify an employee's separation but where post is unable to meet the local law criteria for a separation for cause and/or is unable to comply with the procedural requirements for a separation for cause.  In those circumstances, post, in consultation with local counsel, should determine whether an involuntary termination with the payment of all required end-of-service benefits, including notice or payment in lieu of notice and severance, is consistent with local law.  If it is, post should follow those procedures for separation.  If an involuntary separation is not consistent with local law requirements, post should consult with HR/OE and L/EMP before proceeding with the termination.

b. An involuntary separation with notice and severance may still raise additional considerations if, for example, an employee has a disability, serious medical condition, has certain familial obligations, is on leave, or is close to retirement.  Post should seek guidance from local counsel as appropriate.

3 FAM 7732.3  Failure to Maintain a Security Certification

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

a. Every LE Staff is required to obtain and maintain a security certification from the Regional Security Office (RSO) as a mandatory condition of employment.  Although failure to maintain a security certification will result in loss of access to the mission and will eventually result in separation from employment, the revocation does not necessarily result in the immediate separation of the employee.  Rather, to the extent possible, separation proceedings, which are the responsibility of the Human Resource Office (HRO), should still be consistent with local law, including, if necessary, providing notice and the opportunity to respond to the proposed termination.

b. The RSO will revoke a security certification based solely on security grounds.  Revocation of a security certification is not a performance management action related to an employee’s job performance or conduct.

c.  In cases where an LE Staff’s certification is revoked by the RSO, the RSO will provide to the HRO a comprehensive and detailed written explanation of the basis for the decision, to the extent consistent with the protection of classified information and the national security interests of the United States or other applicable law.  The RSO’s explanation will indicate to the HRO whether all or part of the explanation can or cannot be shared with the LE Staff whose certificate has been revoked.  When separating the employee, if necessary under local law, the HRO will provide such LE Staff in the separation letter as complete an explanation for the separation as consistent with the national security interests of the United States.

d. As needed, an employee whose security certification has been revoked should be placed on administrative leave to allow the Management Officer or his/her designee a brief but adequate period of time to review the pertinent information, determine the appropriate separation procedures consistent with local law and 3 FAM 7732.1, and ensure that appropriate procedures, including notice, are followed.

3 FAM 7732.4  Failure to Meet Other Conditions of Employment

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

To the extent consistent with local law, an employee may be separated if the employee no longer meets the conditions of employment, including, but not limited to:

(1)  Loss of work authorization/work visa;

(2)  Failure to meet fitness for duty standards, if applicable;

(3)  Failure to obtain or maintain a required professional license; or

(4)  Because failure to meet a condition of employment may not provide a sufficient basis under local law for separation for cause in every instance, post should consult with local counsel to determine appropriate separation procedures and identify documentation adequate to support separation under local law.

3 FAM 7732.5  Mandatory Retirement

3 FAM 7732.5-1  Non-U.S. Citizen LE Staff

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

a. Unless retirement is mandated by local law, a mission is not required to have a Mandatory Retirement Plan.

b. If a mission develops a Mandatory Retirement Plan, it must be consistent with local law.

c.  U.S. citizen LE Staff must not be mandatorily retired under the mission’s Mandatory Retirement Plan.  If the mission’s Mandatory Retirement Plan is based on a local law that mandates a retirement age, post should contact HR/OE well in advance of a U.S. citizen LE Staff reaching the mandatory retirement age.  Even in this case, post must not mandatorily retire a U.S. citizen LE Staff without further authorization from the Department.

d. A mission’s Mandatory Retirement Plan, which is included in the Local Compensation Plan, authorizes post to separate non-U.S. citizen LE Staff who meet the criteria for mandatory retirement.  Any mandatory retirement criteria must be consistent with local law, including any applicable social security regulations.

e. All notice(s) of separation and procedures consistent with local law must be followed when separating under the mission’s Mandatory Retirement Plan.

3 FAM 7732.5-2  LE Staff Participants in Civil Service Retirement (CSR)

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

a. An employee who is a contributing participant in CSR must not be mandatorily retired under the mission’s Mandatory Retirement Plan before qualifying for an immediate CSR annuity.  The Office of Personnel Management establishes criteria by which a participant in CSR qualifies for an immediate annuity.  The mission’s Mandatory Retirement Plan may not alter or modify these criteria.

b. For LE Staff participants in CSR who have met the criteria for immediate annuity under CSR, separation based on the mission’s Mandatory Retirement Plan is an involuntary separation.  The Nature of Action Code and Nature of Action for discontinued service retirement is “300 Retirement-Mandatory.”

3 FAM 7732.6  Reduction in Force

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

a. A reduction in force (RIF) occurs when an employee or group of employees is separated involuntarily because of lack of funds, reorganization, decrease of work, or similar reason.  Posts should develop a RIF policy, in consultation with local counsel, that is consistent with local law and HR/OE policy.  Posts should consult HR/OE’s intranet site for the latest RIF policy and templates.

b. HR/OE should be informed of any planned RIF of LE Staff to allow for policy input and guidance.

3 FAM 7732.7  For Non-U.S. Military Service

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

a. To the extent consistent with local law, separation for military service may be necessary when an employee is called to active duty in the armed forces of a country other than the United States.  Posts should jointly prescribe rules consistent with local law governing separation of employees entering the armed forces of another country.  Good personnel practice would be to place the employee in a non-pay (furlough or LWOP) status, if feasible, rather than effect a separation action.

b. This provision does not apply to LE Staff who are entering or recalled to U.S. military service.  Post should review 3 FAM 2560, 3440, and 3500 and 4 State 041536 and 04 State 178505 with respect to LE Staff entering or recalled to U.S. military service.

3 FAM 7732.8  Death

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

In cases of death, the employee’s personnel action should reflect the employee’s separation from the service as of the close of business on the date of death, unless local law provides otherwise.

3 FAM 7732.9  Mutual Separation Agreements

(CT:PER-958;   09-20-2019)
(Uniform State/Commerce/Agriculture)
(Applies to Locally Employed Staff Only)
(USAID: Applies to Foreign Service National Direct Hires Only)

a. In some circumstances, it may be in the best interest of the U.S. government for post to enter into a mutual separation agreement when separating an LE Staff.

b. Posts must seek Department authorization prior to entering into a mutual separation agreement.  Posts should inform HR/OE of the proposed agreement prior to beginning discussions with the LE Staff to allow for policy input and guidance on clearance procedures.

3 FAM 7733  THROUGH 7739 UNASSIGNED

UNCLASSIFIED (U)