Senate Homeland Security Committee Approves Bill to Cut Down on Federal Paid Administrative Leave

WASHINGTON — On Wednesday the Senate Homeland Security and Governmental Affairs Committee approved a bill that would reduce federal paid administrative leave, protect whistleblowers and taxpayer dollars. Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-Wis.) and Ranking Member Tom Carper (D-Del.) are sponsors of the bill, which was authored by Sens. Chuck Grassley (R-Iowa) and Jon Tester (D-Mont.).

 “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,” said Johnson, chairman of the Committee on Homeland Security and Governmental Affairs. “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.”

“There’s a Wild West environment among agencies on paid administrative leave,” said Grassley, chairman of the Judiciary Committee.  “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.”

“It’s important for federal agencies, employees, and taxpayers to have clarity on what paid administrative leave can and should be used for,” said Carper, ranking member of the Committee on Homeland Security and Governmental Affairs.  “The current catch-all use of this term creates ambiguity that has led to misuse and abuse. There have been instance of supervisors using administrative leave to push people out of their jobs without due process and placing others on extended administrative leave while under investigation for wrongdoing – essentially getting paid to not work. This common-sense, bipartisan legislation will help agencies better account for various types of excused absences and better protect federal employees and taxpayers alike from abuse and misuse of the system.”

The bill is also sponsored by Sen. Jon Tester (D-Mont.), a member of Committee on Homeland Security and Governmental Affairs.

The Administrative Leave Act of 2016 (S. 2450):
–Codifies a definition of administrative leave that is separate from other forms of paid leave or excused absence already legislatively authorized.  Agencies had been granting this type of leave as an exercise of agency discretion.
–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 Administrative Leave Act of 2016 does not affect agencies’ and employees’ use of excused absence already authorized in law (e.g., court time, organ donation, official time, etc.).  It does not change the standards or levels of due process required for an agency to take an adverse action.  It does not enable agencies to force employees to take their own leave or affect Merit Systems Protection Board jurisdiction.
 Agencies such as the Department of Veterans Affairs have put whistleblower employees on paid leave in retaliation and to avoid addressing the problems raised.   The whistleblower is then helpless because administrative leave is not a “personnel action” that a whistleblower can address.  The Administrative Leave Act of 2016 would help whistleblowers by subjecting administrative leave to a variety of escalating controls.  At the conclusion, the agency must either return the employee to work or take an adverse action, which the employee may challenge with the Merit Systems Protection Board.  In addition, the decision that the employee poses a “threat” and needs to be out of the office is made a personnel action, which enables the employee to challenge it if it were made for a retaliatory purpose.
Open-ended leave is expensive and unproductive for taxpayers.  Seventeen agencies spent almost $80.6 million to place employees on paid administrative leave for one month or more in fiscal year 2014, according to a Grassley staff report.  That amount might be lower than the reality due to the imprecise calculations some agencies provided.  Per the report, agencies did not have adequate justification for extended administrative leave and did not justify why investigations or other actions took so long.  The Government Accountability Office documented leave policy shortcomings and agency costs in an earlier report.  

Three groups praised the legislation.

“Senators Tester, Grassley, Johnson, and Carper have shown tremendous leadership in putting forth thoughtful, targeted legislation that will address the major problems identified with administrative leave usage and reporting, while preserving agency flexibility, due process and employee rights,” said Tim Dirks, Interim President of the Senior Executives Association (SEA).  “For too long, misuse of paid administrative leave has wasted taxpayer resources while unfairly holding public servants in a fruitless limbo status, denying them rights to challenge agency determinations. We applaud the Senators and urge Congress to quickly pass this good government legislation.”

“The Federal Managers Association (FMA) is grateful for the bipartisan efforts of Senators Tester, Grassley, Johnson, and Carper for their call for common sense reforms as proposed in the Administrative Leave Act. Their proposed legislation calls for uniformity of the use of administrative leave throughout the federal government. FMA advocates for excellence in public service, and by providing the necessary tools to address poor performers and encourage efficiency and effectiveness, this bill creates a federal workforce that promotes productivity and accountability to the American public. FMA looks forward to continuing to work with these Senators and hopes that it will advance through the chamber without hesitation.” — Patricia Niehaus, National President.

“Currently, the U.S. Customs and Border Protection routinely places Border Patrol Agents on extended administrative leave without justification of length, forcing our agents to languish with no avenue of recourse,” said Brandon Judd, President of the National Border Patrol Council. “NBPC supports codifying the definition of administrative leave in hopes that it will curb the overuse of extended administrative leave policies by federal agencies.  We appreciate Senators Tester and Grassley for their leadership protecting the rights of federal employees and look forward to continuing to work to find a solution.”
A one-page summary of the Administrative Leave Act of 2016 is available here.  A two-page summary is available here.