Leave Restriction: A Useful Tool in Solving Leave Abuse Problems: Part One

Federal supervisors have the option of imposing leave restrictions on a person who may be abusing leave. Here are the steps a supervisor should take leading up to this process.

A recent critic expressed concern about my articles on leave abuse "… because they reflect the old style of Bureaucratic thinking that has been repeated (sic) proven to be inadequate." The person’s major criticism was that I appeared to be more worried about counting beans than productivity. The critic may be right.

It’s the manager and supervisor who must focus on productivity, while those of us in advisory positions get involved when the manager believes specific help is needed to address a certain issue such as attendance problems or misconduct. I talk about "beans" like putting people on notice and counting offenses because that’s exactly what the "neutrals" who judge management’s actions require. For better or worse, the standards that evolved in the 20th century on resolving employee problems are part and parcel of a concept called "due process".

Due process in the Federal government, briefly and plainly stated, holds that for an action to be upheld, there must be a rule; the employee must know the rule; there must be objective evidence that the rule was broken; a reasonably thorough investigation must be done; the employee must be notified of the intended outcome; the employee must get an opportunity to provide his/her side of the story; a decision must result; and a right to appeal the decision beyond the action taker must exist. Commentors, feel free to quibble about this.

In this article, we’ll discuss the actions a supervisor should take leading up to leave restriction. In part two, we’ll look at the ins, outs, and options in putting a leave restriction letter together.

So how does this get us to a discussion of leave restriction?

From its earliest days, the Merit System Protection Board has held that unauthorized absence by its very nature disrupts the efficiency of the service and is cause for removal (See Desiderio v. Department of the Navy, 4 MSPB 171 (1980)).

The federal Circuit has found that productivity doesn’t count. In Davis v. VA, (792 F.2d 1111 (Fed. Cir. 1986)), it held;

"Ms. Davis again asserts that removal is justified only if her performance while she was on the job was poor. This argument is no more persuasive in connection with the severity of the penalty than it was in connection with nexus. The determination of the appropriateness of the penalty for AWOL does not turn on a finding that the employee is also deficient in performance of assigned work."

The lesson appears to be: Ya gotta be on the job to do good! In the 21st century "on the job" may not mean present at an agency site but it certainly still means "at work".

There’s an old story about the mule trainer who carries a baseball bat and when asked why replies, "First you must get his (the mule’s apparently) attention. Some employees may need a figurative baseball bat to get their attention and often leave restriction serves that exact process. It’s also a step in that process we call "due".

So where do you start?

Where you start comes from what’s the problem? Problems may include:

  • A low leave balance without apparent cause.
  • A pattern of unscheduled leave requests or usage. In an earlier article we addressed patterns.
  • Habitual tardiness.
  • A discovery that the person’s justification for an absence proved false.

Whatever the basis, correction of attendance problems starts on the first step of due process otherwise known as "show me where it says that!" Whatever puts Harry (our hypothetical miscreant) on the management radar scope, the first step should involve a discussion between the person and his/her supervisor.

Attendance counseling, the first step

The discussion should start with a listing of the supervisor’s concerns and an opportunity for Harry to explain (if possible) what is happening. Unless the matter is a major issue, the discussion should proceed to a statement of the supervisor’s expectations about attendance, leave, and requesting procedures. It should end with an indication from the supervisor that there will be a memo documenting the meeting and that the supervisor will follow up with Harry at a later date.

Document or be damned

The supervisor who leaves the issue at this point is making a potentially serious mistake. Maybe the situation will improve, maybe it won’t but failing to lock in the rule makes the meeting somewhat worthless later on. Send the employee a memo that reiterates the meeting including:

  • Why you convened it.
  • What the employee said.
  • Your expectations.
  • Your intent to follow up.
  • Instructions to read the attachment.

Attached to this should be your organization’s leave policy and, if appropriate, any relevant leave provision from an applicable collective bargaining agreement.

Did I forget to say you should discuss all of this with a Human Resources advisor, preferably one with the title employee relations specialist if you’ve got one. HR generalists get good at this as well since attendance problems are behind the highest number of disciplinary actions in fact more than all the other bases put together.

Pre-Leave Restriction Memo, do I have to?

I believe we should make crystal clear to an employee the consequences of misconduct. That way, the person gets to make an informed choice regarding their behavior. None of this is a management problem. It is the employee’s responsibility to follow the policies and rules. It can’t hurt to provide the employee a Pre-Leave Restriction Memo.

In Part Two, we’ll look at the ins and outs of leave restriction letters or memos. Stay tuned.

As always, the opinions stated herein are mine and mine alone. Keep commenting, I can always use the feedback and many good ideas result from the interchange that takes place.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.