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.

Are federal workers just faceless bureaucrats?

“Federal employees support our troops stateside and abroad, fight crime and terrorism and protect our borders. They combat forest fires, inspect our roads and bridges and ensure our aviation system is the safest in the world. They guard and enhance our national parks and lands, guarantee seniors receive their Social Security benefits and process and deliver mail to every address in every type of weather.”

The answer to the question posed in the title of this post is an emphatic “No!”

Kori Keller, in an opinion published on The Hill, laments President Trump’s executive order that put a hiring freeze on federal workers. We’ve covered this in our handy infographic on the hiring freeze, but Keller makes a few interesting points, such as that federal workers represent only 1.9 percent of the national workforce. And, contrary to Trump’s rhetoric about “draining the swamp,” these 1.9 percent of federal workers aren’t just in D.C. – they’re all over the country performing vital functions.

Think mail carriers and forest rangers and firefighters. It’s not “just” those who work in office settings (which, by the way, is also the setting of millions of Americans working in the private sector).

As we wrote on our infographic post (see link above), there could be many unintended consequences to federal employees, even those who still have jobs, which brings us to the next point in this post.

At-will employment in the federal sector?

If this executive order was the first step in the Trump administration’s efforts to “drain the swamp,” you’ll now find in the National Review a call to make all federal employees fire-able. “There shouldn’t be a permanent bureaucracy that can thwart the will of a president,” Grant Starrett argues. “Congress should pass a law to make all federal employees serve at will – just like Americans in the private sector.”

In his article, Starrett makes lots of references to faceless “bureaucrats,” as though they weren’t those who Keller defends. It’s one opinion against another, but when it comes to treating people with dignity, and not assuming they’re part of a swamp, Keller’s opinion and others like it should win out every time.

Read more:

Lawmakers work to eliminate federal employees’ due process rights

Jeff Spross’s opinion piece in The Week headlines with a bang (much like most pieces on President Trump) by asserting Trump’s “foolish demonization of public workers,” and this first line: “The so-called ‘greatest jobs president that God ever created’ began his presidency by refusing to hire people.” Spross refers to an executive order that put a freeze on hiring of federal employees, signed on Jan. 23, Trump’s first full day on the job.

But Trump isn’t the only one “demonizing” public workers.

GOP lawmakers, emboldened by the new administration, and by the political reality of controlling both the House and the Senate, are jumping on board as well. Lawmakers are currently working to weaken or eliminate the due process rights of federal employees.

The Holman Rule, revived from the dead

As per the Washington Post, one such example is the Holman Rule, which House Republicans revived from the dead. It allows lawmakers to go so far as to “single out” an individual federal employee, targeting the employee’s pay.

How might this work?

A government scientist studying climate change, for example, who insists on tweeting to the public, against the Trump administration’s orders, may theoretically find his or her pay cut to just $1, effectively ending employment, much like Milton in the movie Office Space.

“[O]pponents and supporters agree that the work of 2.1 million civil servants, designed to be insulated from politics, is now vulnerable to the whims of elected officials,” as Jenna Portnoy and Lisa Rein report for the Post.

A sad state of affairs indeed.

How a Trump victory could affect federal employees: Fewer rights, less job security and potentially 20,000-plus layoffs

Presidential candidate Donald Trump is well known for his “Your fired!” catchphrase from the reality TV show The Apprentice. He would live up to that slogan by making it easier to fire federal employees if he gets elected in November.

New Jersey Governor Chris Christie, who heads Trump’s White House transition team, told the press that Trump believes the process for firing civil servants takes too long and involves too many hurdles. Trump’s administration cited concerns that Obama would convert political appointees to civil servants, granting them greater job security and equal pay rights.

Employment rights for civil servants: Rooted not just in the law, but also in the Constitution

Government employees have due process rights when it comes to losing their jobs. These rights – which are rooted in the Fifth Amendment to the U.S. Constitution – include a requirement for just cause and an opportunity to challenge the firing.

The Civil Service Reform Act of 1978 (CSRA) further outlines the procedures for firing, disciplining and demoting federal employees. Passed several years after the Watergate Scandal, this law established the Office of Personnel Management and the Merit Systems Protection Board. Both agencies play important roles in protecting the rights of federal employees.

Big changes for federal employees if Trump gains the White House

It’s unclear how, exactly, Trump would change existing federal employment procedures. However, Trump’s previously announced policies would impact government employees in key ways:

Although the details of these proposals have yet to be outlined, one thing is clear: A Trump victory in the November election would have a major impact on federal employees at all levels.

You’ve received a Notice of Proposed Removal. What do you do next?

By sending a Notice of Proposed Removal, your agency is informing you that it intends to terminate your employment. As a federal employee, you have rights. You have the right to show your agency why your removal is unreasonable or unwarranted under the circumstances. It is critical to act quickly.

What are the timelines after a Notice of Proposed Removal?

Unless an employee is believed to have committed a crime, federal agencies must provide a minimum of 30 days notice to any employee who is being removed. Furthermore, the employee must have a reasonable time frame (at least seven days) to respond to the notice. Employees also have the right to an attorney. An attorney will be critical in presenting the strongest possible case in your support.

If an agency removes me, what do I do next?

Federal employees can appeal a removal. Most appeals go through the Merit Systems Protection Board (MSPB). Depending on the circumstances, employees can appeal through the EEO or through a collectively-bargained grievance procedure. An appeal to the MSPB will involve discovery, in which you will have the opportunity to request documentation surrounding your removal and refine arguments in support of your position. Depending on the facts, these arguments could include:

  • The agency made a harmful error in applying its procedures
  • You were fired due to discrimination or on the basis of retaliation for whistleblowing
  • The penalty was excessive, disproportionate or otherwise unreasonable.

You will then have the opportunity to present your case in a hearing before an administrative judge. After getting a Notice of Proposed Removal, your choice of lawyer is a critical decision. With decades of experience in the field of federal employment law, the lawyers of Alan Lescht & Associates have successfully represented federal employees facing all types of actions, including removal. Our firm is ready to begin exploring all potential defenses to your removal. Call 202-463-6036 to schedule a consultation.

What are the most common EEO complaints federal employees file?

Federal employees facing discrimination, harassment or retaliation in the workplace have the right to bring an Equal Employment Opportunity (EEO) complaint. These complaints can be powerful tools to hold employers accountable and to ensure that federal workplaces are as free as possible of illegal discrimination, harassment or retaliation.

Each year, the Equal Employment Opportunity Commission (EEOC) compiles data on EEO complaints. The most recent report, titled Annual Report on the Federal Work Force sheds light on the most common types of complaints federal employees make.

Retaliation is the biggest issue in EEO complaints

In fiscal year 2014, the most recent year this data was compiled, federal employees filed 15,013 EEO complaints, with many complaints involving multiple allegations. In 2014, federal employees filed 7,018 retaliation complaints. Under federal law, employers cannot take any adverse action against an employee who engages in a protected activity.

Harassment was a common allegation as well. In 2014, federal employees made 6,102 harassment complaints. These complaints do not relate to sexual harassment, but rather other allegations of illegal workplace harassment. Discrimination was frequently alleged as well, with age discrimination being the most common type of claim. In 2014, 4,697 federal employees filed age discrimination complaints. The second most common type of complaint was discrimination on the basis of race, with 3,838 complaints. Disability discrimination was a close third, with 3,817 complaints.

Any federal employee facing retaliation, discrimination or harassment at work should take careful steps to protect themselves. A skilled lawyer will be critical in presenting a powerful case based in the facts and law. Alan Lescht & Associates, based in Washington D.C., has a national practice representing federal employees in all types of EEO claims.