Hiring/Retention

Lawsuit urges OPM to end 7-year delay to keep feds off indefinite paid administrative leave

Federal employees on administrative leave can wait months — if not years — with their careers on hold, as their agencies investigate allegations of wrongdoi...

Jory Heckman@jheckmanWFED

July 3, 2024 6:14 pm

5 min read

A public-sector advocacy group is suing the Office of Personnel Management over a nearly seven-year delay in finalizing a rule, which plaintiffs say would keep agencies from putting federal employees on paid administrative leave indefinitely.

Public Employees for Environmental Responsibility (PEER) filed a lawsuit Tuesday with the U.S. District Court for the District of Columbia, urging OPM to complete the long-awaited guidance on the Administrative Leave Act.

“The defendants’ nearly seven years of refusing to comply with the congressional mandate is inexcusable,” the lawsuit states. “It has directly harmed, and continues to harm, numerous federal civil servants. The defendants’ refusal also has imposed great and unnecessary costs on federal taxpayers.”

Congress passed the legislation as part of the fiscal 2017 National Defense Authorization Act, and gave OPM until September 2017 to implement guidance.

Under ALA, agencies can put employees on investigative or notice leave for up to 10 days, but can extend that period incrementally up to a 90-day maximum.

The legislation also lets agencies ask an employee on investigative leave to perform similar work duties through telework.

OPM issued proposed regulations that year, but has yet to finalize them. Because OPM hasn’t issued final regulations, agencies don’t have the guidance necessary to properly enforce the law.

“Notwithstanding passage of the ALA, many civil servants since 2018 have been left dangling on administrative and/or investigative leave for several months and, in several cases, for years,” the lawsuit states.

Federal employees placed on administrative leave can sometimes spend months — if not years — with their careers on hold, as their agencies investigate allegations of wrongdoing.

“Agencies do continue to abuse administrative leave, because OPM has not done its job, and that’s a problem,” Jason Breifel, a partner at Shaw Bransford & Roth, told Federal News Network on Wednesday.

“What this law had intended to do was to force agencies to manage their workforce. If someone truly needed to be out while an investigation happened, it was trying to keep agencies on a path to getting that done on time,” he added.

The Government Accountability Office found in 2014 that more than 260 federal employees had spent one-to-three years on paid administrative leave, costing agencies about $31 million.

The watchdog office also found that between 2011 and 2015, the Department of Homeland Security placed 116 employees on administrative leave for a least a year — for a total cost of nearly $20 million.

According to data PEER received in Freedom of Information Act requests, the National Park Service used more than 530,000 hours of paid leave between fiscal 2018 and 2020 — with a total cost of more than $10.5 million.

“The amount of leave used annually increased over those three years,” PEER wrote.

Federal employees continue to get paid during administrative leave, but Briefel said a prolonged absence from their day-to-day work often wreaks havoc on careers.

“People might perceive it as a paid vacation at home. Rest assured, it is not,” he said. “If you’ve been accused of having done bad things at work that you might not have actually done, and you’ve been locked or frozen out — for years on end sometimes, not being allowed to do your job, but you’re a decided professional — think of what that does to you. What it does to your family,” Briefel said.

The lawsuit cites examples where federal employees were put on paid administrative leave for months or years, and later cleared investigations that found no evidence of wrongdoing. During this period, however, these employees saw their careers suffer during this indefinite pause.

Dr. Ruth Etzel served as director of the Environmental Protection Agency’s Office of Children’s Health Protection, but was put on administrative leave for six months, starting in September 2018.

While on administrative leave, Etzel was unable to communicate with her colleagues or staff, continue with her work or give a scheduled speech at a national pediatric conference.

The EPA later stated that its investigation didn’t find any cause for discipline and that there was insufficient evidence to support the allegations that caused her to be placed on leave.

However, while on leave she was demoted and reassigned to a newly fabricated position as a “biologist” within the EPA Office of Water, where she continues to be employed, but for which she is vastly overqualified.

“Her distinguished 30-year career in pediatrics and public health was decimated and she suffered severe emotional distress,” the lawsuit states.

The lawsuit also claims Jenifer DeAndrade, a Postal Service manager in Rhode Island with more than 20 years of service at the agency was put on administrative leave in May 2020.

USPS allowed DeAndrade to return to work nearly three years later, in January 2023.

“During that time, she was improperly excluded from promotion opportunities; then, when she returned she was effectively demoted,” the lawsuit states. “Her collegial relations with her staff and colleagues were destroyed during her absence and she also has suffered severe emotional distress.”

The lawsuit describes DeAndrade as a manager who “performed at a high level, received a number of awards for her work, and had never been subject to any personnel action/discipline.”

Federal News Network reached out to OPM for comment.

PEER urged OPM to finalize the regulations through a citizen petition last fall.

According to the lawsuit, OPM General Counsel Webb Lyons told PEER during this process that the agency would take additional steps by June 2024, but has yet to do so.

“Those regulations would, if they had been implemented in 2018 by the federal agencies as was required, have resulted in sharply curtailed and better regulated periods of administrative and investigative leave,” the lawsuit states.

PEER Senior Counsel Peter Jenkins told the Federal Drive with Tom Temin in an interview last summer that the organization would sue OPM if it continued to miss its deadlines.

“We think there’s good case law that agencies can be forced to issue regulations that they’ve sat on for years, years and years when Congress directed them with a timeline. Congress said this should have been done by September of 2017,” Jenkins said.