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 employees job performance or
conduct.
c. In cases where an LE Staffs 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 RSOs
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 missions Mandatory Retirement Plan. If the missions
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 missions 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 missions
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 missions 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 missions 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 missions
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/OEs 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 employees personnel action should
reflect the employees 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