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Advocacy group threatens to sue over mistreated feds

On Behalf of | Oct 9, 2023 | Federal Employment Law

What happens when a federal agency launches an investigation into one of its employees? Many times, it will place the employee on paid leave while it conducts the investigation. Naturally, one would expect agencies to conduct their investigations in a timely fashion and end the paid leave. But that doesn’t always happen.

As the Government Executive reports, hundreds of feds have seen their paid leaves continue indefinitely. Some have spent more than three years on administrative leave. This isn’t just a matter of wasteful bureaucracy; it is a violation of the Administrative Leave Act (ALA). And an environmental advocacy group has threatened to sue the Office of Personnel Management (OPM) if it doesn’t establish rules in compliance with the law.

What should happen when an agency investigates an employee?

Federal agencies often investigate employees who have acted inappropriately or whom they believe have acted in appropriately. Agencies cannot fire or demote employees without due cause, so they commonly use investigations to look for proof. Two different organizations help conduct these investigations:

  • Office of the Inspector General (OIG)
  • Office of Internal Affairs (OIA)

Regardless which office leads the investigation, its investigators will look for proof of wrongdoing. It is their job to find evidence to support disciplinary measures. It is not their job to find evidence supporting an employee’s reinstatement. As you can imagine, when there isn’t enough evidence to support the agency’s discipline, the investigation may drag on.

This can lead to lengthy investigative leaves, frequently in violation of the ALA. Passed in 2016, the law set time limits for these paid leaves, and it gave the OPM a deadline to get agencies on board. That deadline was September 19, 2017.

Now, as noted in the petition by Public Employees for Environmental Responsibility (PEER), the OPM is more than six years past its deadline, and hundreds of feds have since spent one to three years on administrative leave. This is in contrast to the statutory guidelines:

  • Agencies may not place employees on administrative leave for more than 10 days per calendar year
  • Agencies can then place employees on investigative leave for up to 30 days, extending this leave as necessary for up to 90 days total
  • Agencies must report to Congress any extensions of this leave beyond a total of 90 days

PEER filed its petition on September 22. It gave the OPM notice that it would consider filing suit in federal court if it saw no meaningful action within 60 days.

Why worry about paid leave?

Notably, PEER works largely with scientists and noted that several of its members had suffered due to the OPM’s failures. And while it may sound like the taxpayers and the agencies, themselves, may suffer the greatest damage from wasteful leave, it’s important to remember what these long investigations mean to the employees:

  • They are unable to address pressing environmental issues by continuing their work
  • They cannot advance their careers
  • They may be wrongfully and unlawfully “disappeared” without due process

Of course, the best employees are the ones who suffer most. When agencies continue to place them on leave as a means of sending them away, despite a lack of evidence, these employees cannot continue their work. When their work aims at supporting a healthy environment and ethical government practices, we all suffer for their exclusion.

More than six years after missing its original deadline for complying with the ALA, the OPM is now on the clock with a lawsuit pending. Only time will reveal if the OPM meets or misses this new deadline.


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