Administrative Leave Leash Too Weak to Check Abuse
OPM Plan Allows Unlimited “Notice Leave” and Lets Agencies Police Themselves
Washington, DC — Proposed rules to curb excessive use of paid leave by federal agencies are toothless, according to public comments filed today by Public Employees for Environmental Responsibility (PEER). In addition, the Office of Personnel Management (OPM) plan contains a gaping loophole allowing employees to be placed on indefinite leave without any recourse.
Late last year, Congress passed the Administrative Leave Act to end agency abuse of administrative leave which “exceeded reasonable use,” citing cases where employees were paid to stay home for months and, in some cases, years. Last month, OPM rolled out proposed regulations to implement this law but, in public comments filed today, PEER argues that as written, they are ineffectively weak because they –
- Contain a Gaping Loophole. The proposal creates a new category of open-ended leave called “notice leave” which can start as soon as an agency proposes a disciplinary action, such as termination, and continues until the agency finally takes that action or formally declares that it will take no action. PEER has clients who have languished on leave for years with a proposed termination hanging over their head, an abuse that can continue under OPM’s formulation;
- Lack Any Enforcement Mechanism. An employee exiled from work in excess of OPM’s proposed leave limits has no ability to appeal or recourse to force a return to work; and
- Let Abusive Managers Go Unpunished. OPM’s plan does not identify, let alone discipline managers who order improper or excessive leave.
In cases from PEER’s docket, employees are left in lengthy leave limbos because agency management finds the employee inconvenient or a political threat but lacks grounds to justify removing him or her. Making an unjustifiable removal proposal followed by imposing indefinite leave allows the agency to “disappear” the targeted employee without an ounce of due process.
“Today, federal managers can indefinitely exile employees they dislike or fear without any negative consequence to themselves,” stated PEER Executive Director Jeff Ruch. “The intent of Congress will be frustrated unless OPM rewrites its plan to inject an iota of accountability for abusive managers.”
The OPM proposed rules are open for public comment through August 14th. Once adopted, agencies will have another 270 days to draft their own rules, which means no changes until next spring at the earliest. However, PEER points out that OPM has no means for ensuring that agencies adopt compliant rules, or any rules at all, and disclaims any ability to address instances where agencies violate their own rules.
“Letting agency managers self-police, as OPM proposes, is doomed to failure,” add Ruch, noting that employees on administrative leave – and their families – are under constant stress and anxiety, living under a Sword of Damocles of proposed termination which can drop any minute. “Employees summarily sentenced to stay home are not on vacation, they are on professional death row. Public servants deserve some means by which they can return to work.”