Speaking Out

BY ADAM R. PEARLMAN

When President Biden signed Executive Order (E.O.) 14100 on June 9, 2023, it could have been a landmark initiative by the chief executive and head of state to benefit the families of all U.S. public servants who sacrifice so much while serving our country overseas. But it wasn’t.

Instead, the well-intentioned initiative “to advance economic opportunity for military spouses” once again formally recognized the sacrifices of military families to the exclusion of all others.

It must be said up front and unambiguously: Noting and advocating for the needs of nonmilitary families—including those in the foreign affairs, intelligence, and law enforcement communities—who experience similar hardships to those of military families, is not to detract from the consideration military service members and their families receive from the White House and Congress. Members of the military and their families earn the benefits and thanks they receive, and there is still more work to be done to support them.

It is simply past time to inculcate the same gratitude for nonmilitary sacrifices in policy, law, and high-level rhetoric as well.

From Rhetoric to Policy

Since President Biden took office, this White House has repeatedly taken special notice of military spouses and families, including in no fewer than 24 presidential proclamations in addition to several other important policy measures such as the National Strategy on Gender Equity and Equality, and the Military Parental Leave Program.

The June executive order, “Advancing Economic Security for Military and Veteran Spouses, Military Caregivers, and Survivors,” gives tangible form to several elements of the administration’s oft-stated support for military families in a document that carries the force and effect of law within the executive branch.

The E.O. recognizes “that military spouses are an underserved community” and prescribes a wide range of initiatives to benefit military spouses and families, including:

• Directing the development of a governmentwide Strategic Plan on Hiring and Retention for Military and Veteran Spouses, Caregivers, and Survivors;

• Increasing federal job postings utilizing the Military Spouse Non-competitive Appointing Authority;

• Expanding training on the employment of military and veteran spouses, caregivers, and survivors across federal agencies;

• Setting governmentwide standards to improve the domestic employee teleworking overseas (DETO) program;

• Directing the Office of Personnel Management to issue guidance to agencies outlining telework and remote work flexibility for military spouses and caregivers;

• Encouraging federal agencies to collaborate to place a military spouse or caregiver in another position following changes to support continuity of care or relocation due to a permanent change of station (PCS) that makes it untenable for them to continue in their existing position;

• Reinforcing the importance of considering remote work options for military spouses when reevaluating or entering agreements with host nations;

• Developing tailored resources for military and veteran spouse entrepreneurs, including additional Small Business Administration consideration to support them “in starting and sustaining their businesses”;

• Bolstering military families’ access to child care;

• Encouraging federal agencies to grant administrative leave for military spouses in conjunction with PCS moves;

• Amending legal assistance instructions across the military departments to allow families to receive advice related to employment under status of forces agreements or other host nation agreements; and

• Improving the collection of data on military and veteran spouses, caregivers, and survivors in the federal workforce.

And... What About Everyone Else?

The near-monthly recognition of the bona fide hardships endured by military families, and now formalizing that via executive order, stands in sharp contrast to the White House’s one-line nod to “those who uproot their lives every few years when a [public servant] family member’s job calls on them to find a new home” in the 2023 Proclamation on Public Service Recognition Week.

To be sure, not everything has been at a standstill. The Foreign Service Families Act of 2021 (FSFA) was a major achievement in closing certain gaps between military and overseas nonmilitary service considerations. The FSFA applies provisions of the Servicemembers Civil Relief Act concerning residential leases and cell phone contracts to members of the U.S. Foreign Service, compels in-state tuition for Foreign Service children, and directs the Secretary of State to do more to promote family member employment.

As AFSA Advocacy Director Kim Greenplate wrote in the March 2022 FSJ: “The [FSFA] achieves more for Foreign Service parity with the U.S. military than any effort in recent memory.”

The Foreign Service Families Act of 2021 itself demonstrates just how easy it is to include language benefiting “member[s] of a qualifying Federal service” versus simply “the Armed Forces.”

Even so, the department’s data show that of the more than 12,000 nonmilitary adult family members based overseas, 55 percent (more than 7,000) are not employed. It is reasonable also to assume that many more are underemployed.

In raw numbers, the number of U.S. government civilians and their family members based abroad is relatively small compared to our uniformed colleagues and counterparts. But military families also tend to live on large, secure, fairly well-resourced installations with on-site American health care, education facilities, banking, commissaries, and retail exchanges.

The families of Foreign Service members and others often spend as much or more time overseas but are posted in less supportive places with higher hardship scores because of their isolation, persistent security threats, lack of modern health care, and/or insufficient schooling options.

All of that comes on top of the regular moves every two to three years, like the military, and spouses having few meaningful opportunities to maintain or advance their careers either inside the mission or on the local economy.

What Needs to Be Done

There are certainly differences between military and nonmilitary service, and with them come some unique problem sets, needs, and solutions. The family situations of enlisted members of the military, for example, tend to differ greatly from those of the officer ranks and of officers in nonmilitary agencies.

As military spouse Melissa Sullivan wrote in The Washington Post in July, some data show that family food insecurity is a significant problem in the enlisted ranks. And with deployments to some countries, such as to NATO ally Italy, military spouses are prohibited from working off-base at all without losing their status.

But, as noted earlier, the unemployment rate of nonmilitary spouses is staggering, and the terms of many bilateral work agreements (BWAs), at posts where they apply, also leave much to be desired in terms of both content and clarity.

Indeed, lack of any sort of interpretive guidance from the State Department leaves U.S. employers who might otherwise be flexible with teleworking FS spouses with uncertainty concerning possible corporate tax or tort liability.

Finding that exposure unacceptable, some companies have put their FS-spouse employee(s) in the untenable position of having to either stay behind (and, presumably, collect a separate maintenance allowance from the State Department), or resign. Just as the E.O. calls for legal assistance judge advocates to provide military spouses advice related to employment, the State Department can do more to bring clarity to BWAs.

Considering all of the above, and in full acknowledgment that there are legislative underpinnings to certain benefits exclusive to military families, we should be able to expect the president, the White House, and the U.S. government to be more inclusive of nonmilitary public servants’ spouses and families when devising economic opportunity and professional advancement programs in consideration for the inherent and imposed hardships of frequent overseas moves in their extraordinary service to the United States.

From that perspective, E.O. 14100 took a big step in the wrong direction, and unnecessarily so. Indeed, the text of the FSFA itself demonstrates just how easy it is to include language benefiting “member[s] of a qualifying Federal service” versus simply “the Armed Forces.”

Some measures that should be undertaken by the State Department immediately include:

• Advocate for a follow-on executive order that incorporates nonmilitary families into the provisions of E.O. 14100;

• Advocate for consistent rules and parity between the Military Spouse Noncompetitive Appointing Authority and those applicable to spouses of appropriate nonmilitary employees and officers serving overseas;

• Provide interpretive guidance for bilateral work agreements and/or other relevant instruments at each post where a family member is working outside the mission so spouses and their employers have clarity on their tax and/or other liability exposure, particularly concerning remote work for U.S. companies;

• Negotiate local income tax immunity or exemption for teleworking U.S. government spouses, and relevant tax and tort protections for their U.S.-based employers into BWAs;

• Develop a governmentwide policy allowing federal employees and third-party contractors to work remotely on U.S. government business on employing-or contracting-agency approved equipment from U.S. embassy-approved housing, perhaps by including such provisions in the current legislative proposal that would provide military spouses with more U.S. government telework options;

• Conduct a thorough review of economic and professional opportunity programs, preferences, and benefits available to military spouses and family members to determine whether there is a legal or otherwise sound policy rationale for excluding civilian employee spouses and family members from each of the identified programs, preferences, and benefits; and

• Ensure the interests of nonmilitary families are represented during the process of further updating the DETO program, as further discussed in last month’s issue of the FSJ.

Adam R. Pearlman, a State Department eligible family member (EFM), is a senior attorney and the managing director of Lexpat Global Services, LLC, a firm he founded with another EFM. He is also a former civil servant whose prior government service includes both the State Department and Defense Department. The opinions and characterizations in this piece are those of the author and do not necessarily represent those of the U.S. government.

Read More...

• “Seeking Parity Between the Civil and Foreign Services” by Larry W. Roeder, Jr., The Foreign Service Journal, October 2015
• “Remote Work and Radicalization” by Adam Pearlman, National Security Institute blog, June 2017
• “Major Advocacy Milestones Achieved” by Kimberly Greenplate, The Foreign Service Journal, March 2022