Yellow Jacket InitiativeBy E. Lawrence Anderson, Yellow Jacket Initiative
On Wednesday, October 28, 2026, the Office of Personnel Management sent a seven-page memorandum to agency Chief Human Capital Officers, managers and supervisors: "Protections Against Retaliation for Employees Who Report Misconduct or Participate in Performance, Conduct, and Suitability Processes." It is signed by Veronica E. Hinton, Associate Director for Workforce Policy and Innovation, and Joe Knouff, Suitability Director and Acting Associate Director. The PDF carries no memo number. Every quotation below was checked against the memo and against OPM's Suitability Action Appeals rule on October 29, 2026.
What the memo restates, first.
Most of the memo is an accurate summary of existing law. Under 5 U.S.C. 2302(b)(8), taking a personnel action because an employee disclosed what the employee reasonably believes is a violation of law, gross mismanagement or abuse of authority is a prohibited personnel practice. Section 2302(b)(9)(C) protects employees who cooperate with or disclose information to an inspector general or the Office of Special Counsel. The Inspector General Act bars reprisal for complaints to an IG (5 U.S.C. 407(c)). Title VII bars retaliation for taking part in EEO proceedings.
The memo also makes a point managers often get wrong: a complaint filed in response to an agency official's action "is a proceeding against the agency, not the official," and an official acting within the scope of federal employment is not personally liable for a personnel action. It says, "Nothing in this memorandum suggests that an employee may be disciplined for filing an EEO complaint, grievance, or appeal, or for making a good-faith report that turns out to be wrong." It tells agencies to make sure employees know how to report retaliation, including by a supervisor, outside their own chain of command, for example to the EEO office, the IG or OSC.
Why OPM says it wrote it.
OPM states it "has received reports from some agencies that employees are reluctant to report a colleague's misconduct or to serve as a witness — and supervisors and managers are reluctant to recommend or propose discipline — because they fear the subject of the report will respond with an equal employment opportunity (EEO) complaint, a grievance, an Inspector General (IG) complaint, or some other proceeding naming them personally." That is OPM's account. The memo does not name the agencies or say how many there were.
What it directs.
OPM lists six steps:
- Communicate the protections, and add them to mandatory supervisory training.
- Support officials named as the "responsible management official."
- "Do not penalize accountability": a supervisor should not get a lower rating "because a subordinate filed a complaint about a well-founded action."
- Investigate retaliation, including "knowingly false counter-accusations by a co-worker," and "take appropriate disciplinary or suitability action when the allegations are substantiated."
- Make reporting safe.
- "Use the suitability process where appropriate," referring post-appointment misconduct to OPM "rather than allowing serious misconduct to go unaddressed because the agency's own processes seem burdensome."
In a footnote, the memo says a knowingly false report "may bear on the reporting employee's own suitability," citing 5 CFR 731.202(b)(2) and (b)(3). It also says "the protections described in this memorandum run in both directions."
Where the suitability route now leads.
Two OPM rules from this summer set the route. The Suitability and Fitness rule (91 FR 39361, published June 30, effective July 30, 2026), which the memo cites, lets agencies refer post-appointment conduct to OPM for a possible suitability action. The Suitability Action Appeals rule (91 FR 49034, published Aug. 3, effective Sept. 2, 2026) moved appeals of those actions from the Merit Systems Protection Board to OPM. The memo's footnote 30 points to OPM's Aug. 3 implementation resources, which describe that transfer.
In the appeals rule, OPM provides that a party "may not obtain judicial review of an OPM decision issued under this subpart and that there is no further right of appeal from a final OPM decision." OPM's preamble also says the rule "neither enlarges nor contracts the jurisdiction of the Federal courts," and that whether a particular suit may proceed under the Administrative Procedure Act "is ultimately a question for the courts to decide."
This is the first OPM guidance we have seen that points agencies to suitability referral as a response to conduct by employees inside complaint and witness processes. The memo ties that to knowingly false reports, witness intimidation and substantiated retaliation.
What is not established.
The memo is guidance. It changes no regulation. We do not know whether any agency has made a suitability referral on this basis. One citation in the memo is incomplete as printed: footnote 21 gives the Suitability and Fitness rule as "91 FR ____ (June 30, 2026)," while footnote 4 gives 91 FR 39361. We have not compared this memo with OPM's November 21, 2025 memorandum on personal liability, which it cites.
Primary source: OPM, Memorandum for Chief Human Capital Officers, Managers and Supervisors, Protections Against Retaliation for Employees Who Report Misconduct or Participate in Performance, Conduct, and Suitability Processes (Oct. 28, 2026). Also read: Suitability Action Appeals, final rule, 91 FR 49034 (Aug. 3, 2026).
Read the text.
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