What is the rationale for the ethics restrictions?
What activities constitute “seeking employment”?
What is the scope of the recusal requirement when I am seeking employment?
What do I do when I become aware of the need to recuse myself from a particular matter?
May I accept interview expenses?
I am a procurement official; are there special rules?
Are there other considerations to keep in mind?
Are there additional resources about seeking or negotiating for non-federal employment?
Post-Employment Restrictions
Former employees are subject to the provisions described below.
Former government attorneys and public officials with a law license are subject to additional post-employment restrictions under State Rules of Professional Conduct.
Political appointees are subject to additional Ethics Pledge requirements under EO 13989.
Public financial disclosure filers must file an OGE Form 278e Termination report within 30 days after leaving HHS unless they enter into another public financial disclosure filing position within those 30 days.
Certain exceptions, not discussed here, may apply in limited circumstances. Contact OEI at FDAEthics_Advice@fda.hhs.gov for further information.
May I contact FDA on behalf of others?
May I provide assistance to others?
Are there additional restrictions for senior FDA employees?
Are there additional resources about leaving federal service?
In general, an executive branch employee is free to seek post-Government employment with any non-Government entity, but the employee may need to recuse from working on some Government matters while doing so.
A criminal conflict of interest statute, 18 U.S.C. § 208, prohibits an employee from participating personally and substantially, in an official capacity, in any "particular matter" that, to the employee's knowledge, would have a direct and predictable effect on the employee's financial interests or on the financial interests of a person or organization with whom the employee is negotiating or has an arrangement concerning prospective employment. A related executive branch-wide regulation, Subpart F of 5 C.F.R. part 2635, prohibits an employee from working on a particular matter if the employee is "seeking employment" with a person or organization affected by that matter, even though the employee's job search has not progressed to actual negotiations. An employee who complies with the recusal requirements in Subpart F will ensure compliance with the conflict of interest statute.
An FDA employee’s experience and expertise may make the employee attractive to a non-Federal employer. If you are seeking post-FDA employment and your FDA work could benefit a potential employer, the public may be concerned that your work could inappropriately favor the prospective employer. Accordingly, you may be disqualified from working on particular FDA matters while seeking post-FDA employment.
An employee is "seeking employment" as defined in Subpart F, and the recusal requirement applies, if:
the employee is engaged in actual negotiations for employment;
- a prospective employer has contacted the employee about possible employment and the employee makes a response other than rejection; or
- the employee has contacted a prospective employer about possible employment, unless the sole purpose of the contact is to request a job application. (An employee is seeking employment with any person to whom he sends an unsolicited resume, regardless of how many resumes the employee sends to other employers at the same time.)
If a search firm, an online resume distribution service, or other intermediary is involved, recusal is not triggered unless the intermediary identifies the prospective employer to the employee.
If the recusal requirement applies, it extends to any particular matter (virtually any Government matter) that would have a direct and predictable effect on the financial interests of the prospective employer. However, an employee may work on particular matters of general applicability that affect the prospective employer if the employee's only communication with the prospective employer is the submission of an unsolicited resume and the prospective employer has not responded to indicate an interest in employment discussions. Here, work on this category of particular matters is permissible until the employee receives an expression of interest from the employer.
An employee is no longer seeking employment if:
- Two months have elapsed since the employee's dispatch of an unsolicited resume and the employee has received no expression of interest from the prospective employer; or
- Either the employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have ended. A response that merely defers discussion until the foreseeable future does not constitute rejection.
Example:
Ted has met with representatives of several companies while working on a rulemaking that will affect the financial interests of those companies. One of the representatives asks Ted if he would be interested in discussing a job opening. If Ted responds that he "would like to discuss the opening, but not until the rulemaking is final," he has not rejected the possibility of employment.
FDA employees who have begun seeking or negotiating for subsequent non-federal employment must immediately recuse from participation in any particular matter in which the prospective employer has a financial interest. This includes matters in which the prospective employer is a party to the matter (such as grants, applications, contracts, or audits) and those in which the prospective employer is not a party to the matter but could be affected by the matter (such as review of products that compete with the prospective employer’s products, reviews of contracts in which the prospective employer is a subcontractor, or matters involving the prospective employer’s parent company, affiliate or subsidiary). The recusal also must extend to any particular matter of general applicability that affects the discrete industry, economic sector, or other defined class of organizations in which the prospective employer operates, such as a legislative initiative, regulatory proposal, or policy determination that affects the prospective employer as a member of such class.
When an employee becomes aware of the need to be recused from a particular matter, the employee should notify the person responsible for his or her assignments, and may choose to document the recusal in writing. Notification permits a supervisor to minimize any disruption of the agency's mission by arranging assignments accordingly.
If you file a Public Financial Disclosure Report (OGE 278), you must submit a STOCK Act notification form within three business days after commencing negotiating or entering into an agreement with a non-Federal entity to accept post-Government employment or compensation.
If you have recused yourself in accordance with the rules, you may accept gifts of meals, lodging, transportation, and other benefits customarily provided by a prospective employer in connection with bona fide employment discussions. When the prospective employer is a foreign government or international organization, you must also comply with the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342.
If you are working "personally and substantially" on procurement for a contract worth more than the simplified acquisition threshold, you must provide written notice of any contact regarding prospective employment, even if you immediately reject the possibility of employment. If you begin to seek employment, you must file a written disqualification memorandum.
For further information, please see the Federal Acquisition Regulation (FAR), at 48 C.F.R. part 3, and/or contact your ethics advisor.
If you are engaged in a job search, you must not misuse Government resources. These may include your official time, the services of other employees, equipment, supplies, and non-public information to which you have access.
Post-Employment Restrictions
18 U.S.C. § 207(a)(1) Permanent Ban on Switching Sides. Former employees are subject to a lifetime ban on communicating to or appearing before the Government on behalf of their new employer or anyone else regarding specific party matters in which they participated personally and substantially during their entire government service. See also 5 C.F.R. § 2641.201.
Examples of “particular matters involving specific parties” include: contracts, grants, cases, claims, investigations, or other matters focused on identified parties.
This post-Government employment restriction on communications and appearances is permanent and continues for the entire life of the particular matter.
18 U.S.C. § 207(a)(2) Two-Year Official Responsibility Provision. For two years after leaving federal employment, former employees cannot make representational communications to or appearances before the Government regarding specific party matters that were pending under their official responsibility during their last year of government service. See also 5 C.F.R. § 2641.202.
Please note that these representational restrictions only apply to communications and appearances that seek Government action and do not apply to “behind the scenes” work where there is no communication to or appearance before the Government.
18 U.S.C. § 207(b) One-Year Ban on Trade or Treaty Negotiation Activities. Former employees who participated in ongoing trade or treaty negotiations on behalf of the United States within the year preceding their departure cannot, for one year, represent, aid, or advise anyone based on information exempt from disclosure to which the employees had access. See also 5 C.F.R. § 2641.203.
18 U.S.C. § 203 Compensation Limitation. Former employees who join a law, accounting, or government relations firm cannot share in any bonus, profit sharing, or similar compensation derived from fees earned by the employee's new firm or partnership for representational services before the Government that were rendered during the former employee's period of government service.
41 U.S.C. § 2102 Disclosure of Procurement Information. Former employees cannot knowingly disclose contractor bid or proposal information or source selection information to anyone not authorized to receive such information.
41 U.S.C. § 2104 One-Year Ban on Contractor Compensation. Employees who worked on a contract in excess of $10 million cannot accept compensation from that contractor within one year after the employee: (1) served as the procuring contracting officer, source selection authority or evaluation board member, or chief of a financial or technical evaluation team; (2) served as a program manager, deputy program manager, or administrative contracting officer; or (3) personally made certain decisions such as awarding a contract, subcontract, modification, task or delivery order, establishing overhead, issuing payment, or settling a claim.
- 5 C.F.R. Part 2641 Post-Employment Conflict of Interest Restrictions
Employees paid pursuant to Executive Schedule Levels II through V; Uniformed Service Pay Grades O-7 or above; SES; and Employees in other Pay Systems with an Annual Rate of Basic Pay (Excluding Locality-Based Adjustments) at or above the current threshold are "senior employees."
Senior Employee Status
For purposes of the post-employment provisions in 18 U.S.C. § 207(c), some employees have senior employee status based on the position held. For SES employees and for employee categories not specifically enumerated in the statute, senior employee status is determined by pay amount. These employees are senior employees when their basic pay is equal to or greater than 86.5% of the rate of basic pay for Level II of the Executive Schedule. This requirement looks at the actual employee’s basic pay before locality adjustments or bonuses. This threshold applies to regular employees and to SGEs who serve 60 days or more in the year immediately preceding their termination from government service. Based on the current Executive Schedule Level II pay for calendar year 2024, the threshold for senior employee status is:
Annual Rate: $191,944
Hourly Rate: $91.97
Daily Rate: $735.76
- 18 U.S.C. § 207(c) One-Year "Cooling-Off" Period. Former employees cannot, for one year after completing service in a "senior" position, knowingly make, with the intent to influence, any communication to or appearance before any officer or employee of their former agency on behalf of anyone seeking official action. Except for Senate confirmed Presidential appointees, who are prohibited from contacting the entire Department, "former agency" means the OPDIV where the employee worked, or OS, if employed in a STAFFDIV . See also 5 C.F.R. § 2641.204.
The restrictions in 18 U.S. C. § 207(c) and the Ethics Pledge do not apply to acts done in carrying out official duties as an employee of and on behalf of: (1) a state or local government; (2) a college or university; or (3) a non-profit hospital or medical research organization. Other exceptions may apply for certain types of testimony, uncompensated statements based on special knowledge, and scientific or technological information, and for certain contacts made on behalf of international organizations or political campaign organizations.
- 18 U.S.C. § 207(f) One-Year Foreign Entity Provision. Former employees cannot, for one year after completing service in a "senior" position, knowingly represent, aid, or advise a foreign government or foreign political party with the intent to influence any officer or employee of the United States. See 5 C.F.R. § 2641.206.
Restrictions Applicable to Very Senior Employees
Employees paid pursuant to Executive Schedule Level I, and other employees whose base salary is set at exactly the salary level for Executive Level I at any time during their final two years of service, are "very senior employees."
18 USC § 207(d) Two-Year "Cooling-Off" Period. Very senior employees are subject to an additional 2-year restriction that precludes representational contact with ANY HHS employee, as well as with ANY Presidential appointee paid pursuant to the Executive Schedule at any federal agency. See also 5 C.F.R. § 2641.205.
The restrictions in 18 U.S.C. § 207(c) and the Ethics Pledge do not apply to acts done in carrying out official duties as an employee of and on behalf of: (1) a state or local government; (2) a college or university; or (3) a non-profit hospital or medical research organization. Other exceptions may apply for certain types of testimony, uncompensated statements based on special knowledge, and scientific or technological information, and for certain contacts made on behalf of international organizations or political campaign organizations.- 18 U.S.C. § 207(f) One-Year Foreign Entity Provision. Former employees cannot, for one year after completing service in a "senior" position, knowingly represent, aid, or advise a foreign government or foreign political party with the intent to influence any officer or employee of the United States. See 5 C.F.R. § 2641.206.
Notification Requirement
An agency must notify the employee that the employee is a senior employee subject to the one-year post-employment cooling-off period. 5 C.F.R. § 730.104. Notification must be provided before, or as part of, every personnel action that affects the employee’s coverage under the statute, including:
- An employee’s initial appointment or conversion to a senior position
- An employee’s promotion or annual pay adjustment that raises the employee’s base pay to at or above the threshold
- An employee’s termination or separation from a senior position
Under the Emoluments Clause of the U.S. Constitution, a retired member of the uniformed services (e.g., a FDA commissioned corps officer) may not accept employment (or compensation for that employment) from a foreign government unless he or she first obtains approval from the Department of State and the Department of Health and Human Services.
- HHS One-Pager on Seeking Employment
- OGE Seeking Employment Advisory Opinion
- OGE Post Employment Advisory Opinion
The information on this page is not a substitute for individual advice. Please contact the Ethics Advice Hotline at (240) 402-1111 or email FDAEthics_Advice@fda.hhs.gov.