The House on Tuesday voted unanimously to overhaul the administrative leave process, approving a bill to make it more difficult for agencies to place employees on indefinite, paid, non-duty status while they are under investigation.
The Administrative Leave Reform Act, which won bipartisan support, would hinder an agency’s ability to place an employee on administrative leave for “reasons relating to misconduct or performance” for more than 14 days in one year. The bill’s author and chairman of the House Oversight and Government Reform Committee, Rep. Jason Chaffetz, R-Utah, has repeatedly highlighted and held hearings on abuses of administrative leave in which workers accused of malfeasance have spent months or years on essentially steady paid vacation.
Initially, Chaffetz’s bill set the 14-day administrative leave cap across the board, but an amendment ironed out between the chairman and Rep. Stephen Lynch, D-Mass., provided some exceptions. After 14 days, agencies would be required to place employees back on paid duty status. In some cases, proponents of the legislation have said, it would make more sense for agencies to allow employees to telework or to place them in an alternative facility. If employees still represent a threat to public safety, government property or the agency mission, the bill would allow for up to 30 days of administrative leave at a time. Each additional 30-day period would require an explanation from the agency to be provided to Congress.
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The compromise language assuaged Democratic concerns that Republicans were undermining federal employees' constitutional right to due process. Chaffetz’s original measure would have placed employees under investigation for misconduct for more than 14 days on unpaid leave. That policy would have removed employees’ pay before they were able to defend themselves, possibly punishing those later found to be not guilty.
The House also approved on Tuesday Chaffetz’s Official Personnel File Enhancement Act, which would require a “permanent notation” on the official records of any employee who resigns from the government while under investigation for wrongdoing, if the investigation makes an adverse determination. The bill would require any potential federal hiring official to consider the file and its notations, though the employee would reserve the right to appeal the investigation with the Merit Systems Protection Board. Chaffetz said the bill would prevent employees from "escaping accountability" by getting a new federal job without the hiring agency knowing about prior misconduct.
Currently, agencies use administrative leave at their discretion, usually when they are investigating an employee’s alleged misconduct. But the tool’s loose guidelines and liberal application have led to abuse, with many employees spending months and years at home collecting pay while agencies investigate. The practice also sometimes punishes employees because it keeps in limbo their job and ability to challenge the agency while they await a final decision on their work status.
“It’s not fair for the employee,” Chaffetz said of the current process during a markup of the bill. “It’s not fair to the government for this to go on in perpetuity.” He added on Tuesday agencies often abused administrative leave as it provided "the path of least resistance."
The Office of Personnel Management sent agencies a memorandum last summer saying it would begin collecting more information on the practice to put more parameters around its use and increase transparency. It also said agencies were “often” abusing the practice and ignoring the intention behind its original creation. The memo was prompted by a Government Accountability Office report that found agencies spent $3.1 billion between 2011 and 2013 paying employees not to work while on administrative leave.
In February, the Senate Homeland Security and Governmental Affairs Committee approved the 2016 Administrative Leave Act, which would limit agencies to using the practice five days at a time. It would also create two new leave categories -- investigative leave and notice leave -- provided agencies meet specific criteria and are unable to use other available options. Agencies would have to comply with more stringent reporting requirements as well, including recording administrative leave separately from other forms of excused absences, and explaining to employees why they have been placed on investigative or notice leave.
In its 2015 guidance, OPM said it “strongly recommends” agencies consider other options aside from administrative leave, such as leave without pay, indefinite suspensions or firing the employee without notice if there is “reasonable cause to believe the employee has committed a crime” for which he or she could go to prison.
The Senate bill has yet to receive a full vote; its passage would likely require a conference committee to resolve the legislative differences in the two chambers. Sen. Chuck Grassley, R-Iowa, an original cosponsor on the bill, said he was “glad to see progress on reforms in both chambers of Congress.”
“The Senate committee-passed bill is comprehensive and bipartisan,” he said. “I hope the House and Senate ultimately will be able to reconcile our approaches, and we can get something to the president this year.”
A spokesman for Sen. Jon Tester, D-Mont., who introduced the Senate legislation, said the senator's measure was "better than the House bill because it provides a more comprehensive approach to curb government waste and save taxpayers money."