January 2008

This advice is being provided to employees who have been summoned to an interview, as part of their background investigation. IRS employees are subject to background investigations when they are first hired or when they move to a position of greater sensitivity or higher risk level.

1. What is the background investigation process?

The background investigation is designed to determine whether the employee is “suitable” for federal employment and/or eligible for a public trust position. An employee undergoing a background investigation is required to complete some forms. In addition, there is a check of databases maintained by other agencies; an interview of the employee; and interviews of people that the employee knows, such as neighbors, friends, and coworkers.

2. What forms do I have to complete?

That depends on the sensitivity level of your position. You will either have to complete the SF 85 (for nonsensitive positions) or the SF 85P (for public trust positions), both of which seek general information about your background and include an Authorization for Release of Information. Additional forms currently being used include the SF 87 (Fingerprint Chart); OF 612 (if not completed prior to appointment), and an authorization for release of credit reports. Investigators will also ask for a current photo ID; your IRS ID should be. sufficient. Employees who worked, resided, or attended school in Washington, DC, within the last five years will be asked to complete the PD 70 (Metropolitan Police Department Criminal History Request). 

No bargaining unit employee should be required to complete the Authorization for Release of Medical Information or the SF 85P-S (Supplement to the SF 85P), which has more questions about drug and alcohol use and mental health treatments. OPM approval is required, based on a showing that the information is job­related and justified by business necessity, before those forms can be used. Finally, some investigators have tried to require employees who have experienced financial problems to sign authorizations to specified financial institutions for disclosure of broad information related to financial transactions. Some chapter representatives have succeeded in obtaining the investigator’s agreement to ask the employee questions on these matters, instead.

3. What is the personal interview?

The investigator will schedule an interview with you to discuss, in person, the answers on the forms that you completed. This will give you a chance to update the information and explain any apparent inconsistencies or negative information. In general, the investigator will explore the subject matters raised by the forms. The investigator will also ask you for the names of other people who might have information about your suitability for your job.

4. Do I have a right to union representation in this interview?

NTEU’s position is that you have a right to union representation, on request, based on agreements in place with the IRS since at least 1997. Whether that right will be honored at this point depends on whether the interview is conducted by an IRS investigator or an investigator employed by OPM or an OPM contractor. The IRS permits union representation in the investigations that its employees conduct. OPM, however, took the position in a December 2007 letter that it is not bound by NTEU-IRS agreements and that it is free to deny requests for union representation. NTEU is taking action to challenge that position. In the meanttime, you should continue to request union representation, even if you expect the request to be denied, to help us build our case and to give us grounds for challenging the outcome of the interview later, if necessary. If your request for union representation is denied, you should get the investigator’s card, make a note of the circumstances, and tell the chapter. 

You should consult with the chapter in advance of the interview (as discussed below) to get advice on how to conduct yourself during the interview. You could also consider asking the investigator to permit you to tape record the interview to give yourself a record in the event the investigator’s questions cross the line into inappropriate areas.

 

Finally, if the interview starts to focus on matters where you feel particularly vulnerable, leading you to have a “reasonable belief” that the subject matters under discussion could potentially lead to a finding of unsuitability or to disciplinary action against you, then you should renew your request for union representation. There is a statutory right to union representation in any examination of an employee by a “representative of the agency” if the “employee reasonably believes the examination may result in disciplinary action” and the employee requests representation.

5. Where can the interview be held?

The IRS has agreed that interviews will be held at the workplace, on work time, unless both you and the investigator agree otherwise. You are under no obligation to agree to an interview at your home or anywhere else away from the workplace. If the investigator objects, refer the investigator to your manager and tell the manager about the contact and your response. Make it clear to the investigator that you are not refusing to cooperate but that you simply do not want to meet outside the workplace. 

OPM investigators may not follow the agreements reached with NTEU, given OPM’s recent position that these are not binding on it. In that event, get the investigator’s card, make a note of the circumstances, and tell the chapter.

 

6. How should I answer the questions in the interview?

You should remain calm, remembering that the purpose of the interview is simply to verify general information about your background and suitability. You should project a professional attitude at all times. The most important thing is to be truthful. Employees who make material false statements or engage in deception are in far greater trouble than employees who truthfully acknowledge a mistake in their past. You should answer questions directly. You should not volunteer information that has not been requested. If you can’t recall something, you should say that. Never speculate. If you do not understand a question,~ ask the investigator to clarify or rephrase it. Finally, you should ask for the investigator’s name and get his or her business card.

7. What if I need an interpreter?

You are entitled to an interpreter if you do not understand English well or if you have a hearing impairment.

8. Are there limits on what the investigator may ask?

The investigator is trying to determine whether your employment will “protect the integrity or promote the efficiency of the service.” The focus is on developing information to determine whether you are reliable, trustworthy, of good conduct and character, and (for public trust positions) loyal to the United States. While there are no bright lines on what can and cannot be asked, the basic principle is that the questions must be relevant to the purpose for the investigation. Normally, the investigator should limit the questions to the scope and nature of the questions on the forms that you completed.

On occasion, chapter officials have observed investigators using Department of Defense manuals, by mistake, to guide them in their questioning. If this happens, it could lead the investigator to ask questions relevant only to employees in national security positions, rather than to employees in nonsensitive or public trust positions, such as those at the IRS. If you observe that happening, you should object (as discussed below in paragraph 9).

Unless relevance is established, the investigator should not be questioning you on the following topics:

 ►religious matters;

 ►racial matters;

 ►disabilities;

 ►sexual orientation or preference;

 ►questions concerning personal, domestic, or political matters, such as contributions to political, religious, charitable or civic organizations; union affiliation; “fishing questions” about marital or domestic problems; questions about your political beliefs and activities, voting practices, party membership, or correspondence with members of Congress;

 ►oral or written statements by you that are protected by the First Amendment; or

 ►threatening questions of a personal, abstract nature, such as “Is there anything in your past life that you would not want your spouse to know?”

9. What should I do if I object to a line of questions?

If you believe that a question is inappropriate or that the investigator is acting unprofessionally, the first thing to do is to ask the investigator why he or she needs the information. It is possible that the investigator will stop that line of questions or explain the need to your satisfaction. If you continue to object because you believe the information is private and irrelevant to the suitability determination, you could ask the investigator to put the question in writing. If  he or she refuses, you should write down the question yourself, preferably right then but, if not, immediately after the interview. As noted above in paragraph 4, you could also consider requesting permission to tape the interview, or at least the objectionable questions. Be sure to get the investigator’s card. You should bring the dispute to the attention of the chapter as soon as possible so the chapter can lodge an official complaint. 

You should refuse to answer only in truly exceptional circumstances. It is far better to answer under protest and file a complaint. There are risks if you refuse to answer. The IRS requires you to cooperate in investigations. In addition, if the interviewer terminates the interview because you have refused to answer a question, he or she may not be able to complete the investigation. If that happens, the IRS may not be able to let you keep you position or accept the appointment. It may have to transfer you to a position that does not require a background investigation, if one is available.

 

10. Why are others contacted as part of the investigation?

“Third party sources”--meaning neighbors, coworkers, references, managers——are contacted to verify the information you have provided and to provide other information about your suitability. They will be told that they are being contacted in connection with a routine background investigation required of all employees in your position. They will be asked how long they have known you and then asked questions regarding your character and reputation; your honesty and integrity; any use of illegal drugs or abuse of alcohol; negative involvement with law enforcement; your emotional or mental health as it affects the public trust and safety of the workplace; your susceptibility to blackmail or coercion; and whether they can recommend you for a position involving the public trust.

11. Will I be able to answer any derogatory charges made against me?

Yes, you will be given the chance to respond to, clarify, refute, or explain questionable information about you that was uncovered during the investigation. In any re-interview, if you have a reasonable basis to believe that the derogatory information could lead to discipline or a finding of unsuitability, you should renew your request for union representation.

 12. What happens if the investigation turns up unfavorable information about me?

The background investigation is not intended to be an investigation of suspected criminal activity. If evidence is uncovered regarding potential criminal activity, the investigation will be referred to the Treasury Inspector General for Tax Administration. 

Information relating to the following is considered relevant to a suitability determination: misconduct or negligence in employment; criminal or dishonest conduct; material, intentional false statements or deception or fraud in examination or appointment; refusal to furnish required testimony; alcohol abuse of a nature or duration that suggests the employee would be prevented from performing his duties or be a direct threat to property or safety; illegal use of drugs without evidence of substantial rehabilitation; and knowing acts to overthrow the U.S. government. See 5 C.F.R. 731.202(b).

 Even if unfavorable information is uncovered, it is not necessarily fatal to your continued employment. In making a suitability determination, the following considerations are weighed: the nature of the position; the nature and seriousness of the conduct; the circumstances surrounding the conduct; how recent it was; your age at the time of the conduct; contributing societal conditions; and the presence or absence of rehabilitation or efforts towards rehabilitation. See 5 C.F.R.731.202(c). 

If the IRS or OPM does decide that you are “unsuitable” for employment, it must give you written notice of the proposed action. You would have an opportunity to answer the charges in writing. The agency’s final decision is appealable to the Merit Systems Protection Board. 

The IRS also has the right to take disciplinary action against you, or terminate you if you are a probationary employee, based on information uncovered during the investigation. You would be entitled to all of the procedural safeguards that accompany proposed adverse actions.

13. How can NTEU help me?

 Chapter officials are experienced in background investigation issues and can provide you with valuable advice about the process and specific issues that you may face. You should consult with them before your background interview. If they feel it necessary, they will consult with your National Field Representative. If you anticipate that the interview will touch on sensitive matters that might cause you difficulty and the investigator will not permit union representation in the room, you can ask the chapter to send someone to sit outside the room. During the interview, you can request a break and seek the union representative’s advice before answering a difficult question. 

If you believe your investigator has acted unprofessionally, you should report it immediately to the chapter. NTEU can file complaints with the IRS about any misconduct by the investigator during your interview. Finally, NTEU can represent you in any administrative proceedings that might be taken against you based on information uncovered in the background investigation process.