OPM Changes Rules for Use of Administrative Leave

The Office of Personnel Management has proposed new rules on administrative leave. The proposed rules create strict guidelines for when administrative leave can be approved, and require second-level review by an agency official to “help prevent inappropriate uses and ensure that administrative leave is used sparingly.” Final rules are set to be issued by September 19, 2017.

The proposed rules would require agencies to keep records and submit data reports that specifically identify all times that administrative leave, investigatory leave, notice leave, and weather and safety leave are issued. The rules also prohibit any employee from being on administrative leave for more than 10 days in a calendar year.

If finalized, agencies would have to justify all use of administrative leave by showing one of the following:

  • The employee’s absence directly relates to the agency’s mission. For example, an agency could grant administrative leave to an employee to attend a professional meeting that relates to the agency’s mission.
  • The employee’s absence is for an official agency-sponsored activity, such as a blood drive held in an agency facility.
  • The employee’s absence would be in the best interest of the agency or the government as a whole. Examples include allowing employees to participate in employee wellness events, such as flu vaccines, and ensuring employees have the opportunity to vote.

According to the proposed rules, agencies are prohibited from granting administrative leave to:

  • Mark the memory of a deceased federal official;
  • Permit an employee to participate in an event for his/her personal benefit or the benefit of an outside organization;
  • Award an employee for job performance; or
  • Allow an employee to participate in volunteer work that is not officially-sponsored by the agency.

Importantly, the proposed rules state that investigative and notice leave may only be used when an agency official determines that the employee’s presence at work could pose a threat to the employee or others, result in loss or damage to government property, result in destruction of evidence relevant to an investigation, or otherwise jeopardize the legitimacy of government interests. Before using these options, agencies are required to consider alternatives to avoid or minimize the use of paid leave, such as changing the employee’s duties or work location.

Call Alan Lescht and Associates, P.C., at (202) 463-6036, or email us, if you questions about federal employee administrative leave. We offer strategic and results-driven legal services to federal government employees around the world.

Navigating the EEO Process for Congressional Employees

Federal government employees have to follow a specific procedure to file an EEO complaint of discrimination or retaliation.  The EEO process for employees within the legislative branch of government is unique from the process for other government employees.

Where do I file my complaint?   

The Office of Compliance (OOC) is charged with processing EEO complaints for most legislative employees, including those employed by:

  • S. House of Representatives
  • S. Senate
  • S. Capitol Police
  • Congressional Budget Office
  • Office of the Architect of the Capitol
  • Office of the Attending Physician
  • Office of Compliance and
  • Office of Congressional Accessibility Services.[1]

What do I do first?

You must file a request for counseling with OOC within 180 days of the act of discrimination, retaliation, or harassment.  Identifying your claims is critical because only claims specifically listed in the request for counseling may proceed through the EEO process.

The counseling period lasts for 30 days.

What happens after counseling?

After the counseling period, you have 15 days to file a request for mediation with the OOC.   Mediation is a mandatory settlement conference between you and your employer.  During mediation, a mediator will attempt to resolve the complaint.

What do I do if my case doesn’t settle at mediation?  

If you do not reach a settlement at mediation period, you may file a lawsuit in federal district court.  You must file a lawsuit no earlier than 30-days after the end of mediation, but no later than 90-days after mediation concludes.  Alternatively, you may file a request for a hearing before a hearing officer at the OOC.

Should I request a hearing or file a complaint?

This is an important decision that depends on a variety of factors including the facts of your case; the defense arguments raised at mediation; and general case strategy.  Making this decision requires the expertise of a lawyer who has argued before both hearing officers at the OOC and federal district court judges.

The legislative branch process is very technical and separate from how EEO complaints are processed in the executive branch.  As such, if you are a legislative employee who has been subjected to discrimination; harassment; or retaliation, contact Alan Lescht & Associates, P.C. for assistance.

 

[1] Library of Congress (LOC) employees follow a different process.  Another blog post will discuss how LOC employees file EEO complaints.