Annual Defense Bill Has Major Implications for Feds’ Leave, Pay

Among the myriad provisions packed in the major defense authorization bill that cleared Congress Thursday are new curbs on agency administrative leave to prevent long periods where employees who are under investigation can’t report to work but are paid. The final version of the act also included language that will affect civil servants’ personnel files and benefits for those who accept a buyout.

The conference report for the fiscal 2017 National Defense Authorization Act (S. 2943), which the Senate approved 92-7 to send to President Obama, contains the Administrative Leave Reform Act. Supported in the House by Rep. Jason Chaffetz, R-Utah, and in the Senate by Sens. Jon Tester, D-Mont., and Chuck Grassley, R-Iowa, it would cap the use of administrative leave for cases of misconduct or performance at 10 days per calendar year.  

The bill would also create two new types of leave -- investigative and notice -- that agencies can use in 30-day increments, though extensions beyond 90 days must be reported to Congress. The new types of leave offer more flexibility but require greater record-keeping in ways that “would finally hold agency managers and leadership accountable for placing employees on extended paid leave,” Tester and Grassley said in a statement.  

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. A Government Accountability Office report found between 2011 and 2013, agencies placed 57,000 employees on administrative leave for more than one month. GAO found 263 cases in which employees were paid not to work for more than one year.

The administrative leave language represents a compromise between two different bills floated in the House and Senate.

"I am pleased to see these commonsense solutions strengthening the integrity of our civil service on their way to becoming law,” Chaffetz said. “The vast majority of federal workers are honest, hardworking Americans who proudly serve their country. But, as in most large groups, there are some bad apples.”

Grassley has long pursued the administrative leave problems through the Government Accountability Office. “This is a red letter day for everybody who cares about good government,” he said.  “Paid leave shouldn’t be a crutch for management to avoid making tough personnel decisions or a club for wrongdoers to use against whistleblowers.   I hope the reforms will become law as soon as possible, and I look forward to overseeing their implementation.”

The change was also welcomed by the Senior Executives Association. The bill is a “thoughtful, targeted solution [that] will be implemented to alleviate the problem of administrative leave misuse and abuse, while maintaining agency flexibility, due process and employee rights,” said SEA President Bill Valdez. "Misuse of paid administrative leave has long been a problem that only served to waste taxpayer resources and unduly hold public servants in a fruitless limbo status, denying them rights to challenge agency determinations.”

That support was echoed by Federal Managers Association National President Renee Johnson, who said the bill “establishes clear timelines and definitions while reducing waste in the federal government.” It will “bring much-needed uniformity, transparency, and accountability to federal agencies.”

The final 2017 authorization act also included a provision to ensure federal workers accused of misconduct would always be held accountable for their actions. The measure requires 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 mandates that any potential federal hiring official consider the file and its notations, though the employee would reserve the right to appeal the investigation with the Merit Systems Protection Board.

That language is aimed at preventing employees from "escaping accountability" by getting a new federal job without the hiring agency knowing about prior misconduct, Chaffetz said when introducing it.

In a measure specific to Defense Department employees, lawmakers decided to temporarily raise the cap on the buyout incentives the Pentagon can offer. Anyone accepting a voluntary separation offer by Sept. 30, 2018, will be eligible to receive up to $40,000, a jump from the usual cap of $25,000.

Eric Katz contributed to this report.