FOR IMMEDIATE RELEASE
Tuesday, November 28, 2023
Peter Jenkins, email@example.com (202) 265-4189
Feds Promise Abusive Administrative Leave Crackdown
Lawsuit Threat Prompts Move to Finally Enforce 2016 Anti-Limbo Law
Washington, DC — The management practice of summarily exiling federal employees from work for months by placing them on paid administrative leave may finally be coming to an end, according to a letter from the Office of Personnel Management (OPM) to Public Employees for Environmental Responsibility (PEER). PEER had formally petitioned and threatened legal action over OPM’s failure to execute a 2016 law banning open-ended unilateral employee suspensions.
In 2016, Congress passed the Administrative Leave Act to end routine reliance on involuntary leaves that “exceeded reasonable use,” citing cases where employees were paid to stay home for months and, in some cases, years. Congress directed OPM to finalize implementing regulations in less than one year to guide agencies. In 2017, OPM issued proposed regulations to implement the law, but neither the Trump nor Biden Administrations ever finalized them.
This September, PEER demanded that OPM end the delay or face a lawsuit in 60 days. As that deadline approached, OPM General Counsel Webb Lyons wrote PEER indicating –
“OPM plans to issue a final rule…in spring 2024…OPM requests that PEER refrain from seeking further legal recourse until at least June 2024, when PEER will have had an opportunity to consider OPM’s scheduled regulatory action.”
“While we are happy OPM is finally moving, a number of employees have been involuntarily exiled in the interim,” stated PEER Senior Counsel Peter Jenkins, who filed the legal demand, noting that employees have no legal means for appealing abusive suspensions, some of which have lasted years. “Unfortunately, an act of Congress forbidding federal workers from being consigned to limbo has itself been in limbo for more than six years.”
OPM indicates that it is still looking at public comments filed on its 2017 draft regulations, which limited involuntary administrative leave to a maximum of ten days in any year but also created two new categories or paid leave: investigative leave and notice leave while an employee awaits a proposed termination or other disciplinary action but placed no limit on notice leave.
PEER had criticized the OPM proposed regulations as being too weak and filled with loopholes allowing agencies to engage in the same abusive practices but using different terms. Thus, the final terms of an OPM regulation have yet to be determined.
In addition, any finalized OPM regulations will not be self-executing. Instead, they will serve as guidelines for each agency to incorporate into their own rules. However, OPM has no means of ensuring that agencies adopt compliant rules, or any rules at all, and disclaims any ability to address instances where agencies violate their own rules.
“At this rate, it may be years more before this form of management misconduct is curbed,” added Jenkins, pointing out that PEER sees whistleblowers as particular targets for summary removal from their workplaces by managers seeking to silence or marginalize them. “But if OPM fails to live up to its promise by June 1 of next year, then we will promptly sue, along with several past whistleblowers who have already committed to helping us.”
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