Bills Seek to Curb Misuse of Paid Administrative Leave in Agencies

Congress is considering two bills to try to curb abuse of administrative leave in agencies sometimes described as a method for agencies to avoid making tough personnel decisions.

A number of news reports have been published in recent months about federal employees in various agencies that have been put on paid administrative leave for months or even for years. Some in Congress are concerned and they have concluded agencies are using administrative leave as a way to avoid making tough personnel decisions. They want to do something about it to force agency management to make decisions and cut down on extensive use of administrative leave. A bipartisan bill on the topic has just been introduced in the Senate by Senator Jon Tester (D-MT).

Senator Chuck Grassley (R-IA) is not a new advocate for changes to how administrative leave is used in agencies. He has previously cited figures from 18 agencies provided to the Senate Judiciary committee. The report concluded that these seventeen agencies spent about $80.6 million to place employees on paid administrative leave for one month or more in fiscal year 2014.  The Senator also noted that this figure might be too low due to the imprecise calculations provided by some agencies. His report also noted that tens of thousands of federal employees were on paid leave for at least one month and several hundred employees for nine months to three years, over a recent three-year period. (See Grassley Expresses Alarm at Thousands of Federal Workers on Paid Leave for Months)

The Government Accountability Office (GAO) also did a report on this topic. The GAO reported that data from the Office of Personnel Management (OPM) showed that from fiscal year 2011 through 2013, paid administrative leave accounted for less than 1 percent of total paid work days and estimated salary cost. Over these 3 years, about 97 percent of employees charged 20 days or less (see figure). For the same time period, 263 employees charged between 1 and 3 years of paid administrative leave, with an estimated salary cost of $31 million. The GAO report also concluded that data collected by OPM on this subject do not accurately reflect the reasons in agency policies for granting paid administrative leave. Therefore, it concluded,  “OPM data on paid administrative leave are inaccurate and inconsistent across agencies.”

Senator Grassley (R-IA), who is chairman of the Senate Judiciary Committee, is a co-sponsor of this new Senate bill and issued a press release that describes his view of how administrative leave is used within agencies:

“There’s a Wild West environment among agencies on paid administrative leave. Some agencies use it too much, and the taxpayers get short-changed.  The statutory and regulatory vacuum on the use of paid leave has contributed to this problem.  Congress is stepping in with legislation to fill the void. Our bill puts strict limits on administrative leave.  It makes clear when other forms of paid leave are allowable and when employees should be on the job instead. Paid leave shouldn’t be a crutch for management to avoid making tough personnel decisions or a club for wrongdoers to use against whistleblowers.”

Senator Ron Johnson (R-WI), chairman of the Committee on Homeland Security and Governmental Affairs, also weighed in with his views of how administrative leave is used in federal agencies:

 “Paying government employees to stay at home not only robs taxpayers of millions of dollars each year, it allows agencies to drag their feet in taking disciplinary action. The Department of Homeland Security is one of the worst offenders, leaving some employees on paid leave for one, two, even three years. This bill forces government agencies to complete timely investigations and make fair decisions, and it mandates real accountability and transparency to Congress. I am pleased that after months of hard work, we have a bipartisan, commonsense product that will save American taxpayers millions of dollars every year.”

The Administrative Leave Act of 2016 (S. 2450) would do the following:

 – Defines administrative leave that is separate from other forms of paid leave or excused absence already legislatively authorized.
— Requires agencies to record other forms of legislatively authorized excused absence separately from administrative leave.
— Creates new categories of leave, investigative or notice leave, separate from administrative leave, for extended excused absences due to personnel matters, in the rare instances during an investigation or when an adverse action is proposed and that employee needs to be out of the office.
— Allows agencies to use investigative or notice leave through a multiple step process that involves escalating controls over its use.
— Establishes that in all cases, agencies cannot use investigative or notice leave unless established criteria are met — the continued presence of the employee may pose a threat to the employee or others, result in the destruction of evidence relevant to an investigation, result in loss of or damage to government property, or otherwise jeopardize legitimate government interests.
— Directs agencies to consider options prior to use of investigative leave and notice leave, such as assigning the employee to duties in which the employee is no longer a threat or allowing the employee to telework.
— Requires agencies to provide employees with explanations of why they are being placed on investigative leave or notice leave and keep records of these new forms of leave.

The Seniors Executive Association (SEA) has weighed in with its support of the bill as well. In a press release, interim president Tim Dirks commented:

“The misuse of extended administrative leave has long had many detrimental impacts on the efficiency and effectiveness of government operations.  Unfortunately, the response from our elected representatives oftentimes comes in haste and neglects to tackle real problems with realistic solutions.  Luckily for taxpayers, federal agencies and federal employees, this is not the case with the Senate’s bipartisan Administrative Leave Act of 2016.”

The press release also stated that: “This is what genuine, impactful legislating looks like, and SEA is proud to endorse this bill.”

A bill with the same title has also been introduced in the House (HR 4359). The House bill would require that federal employees not be placed on administrative leave for more than 14 days during any year for misconduct or poor performance, and for other purposes.

With similar bills being introduced on the topic in both the Senate and the House, the chances of passage will increase. It is too early to gauge the likelihood of a new law being passed on this topic. In an election year, anything can happen. A bill on this subject that may help save a few million dollars a year, that has the support of some federal employee organizations, and without harming large voting constituencies may prove to be an attractive option  for many in Congress.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47