By William Wiley, July 19, 2017
Regular readers of our newsletter will remember the celebration we had when Congress created a new type of paid leave status back in December: Notice Leave. The problem we’ve been having for several years has been a conflict between two competing interests:
- The interest of not paying employees to not work by putting them on administrative leave for months and years, and
- The interest in getting potentially dangerous employees out of the work place where they might kill somebody once their removals are proposed.
Here at FELTG, for nearly 20 years, we have come down on the side of the protection of the government’s workplace by using administrative leave during the 30-day notice period that precedes a removal for misconduct or performance. To us, reducing the opportunity for workplace violence is more important than a few days of administrative leave.
Unfortunately, we don’t get to make the rules. The rule makers at OPM and on Capitol Hill have come down on the side of theoretically protecting the federal fisc by ordering that the use of administrative leave be restricted even if it endangers the lives of federal workers and the public. Yes, you’re reading that correctly. OPM’s regulations for many years have said that normally an employee whose removal has been proposed will remain in his regular job during the notice period.
If we need to explain to you why this is foolish, you must be new. Does anyone REALLY think that the employee is going to produce usable work once notified of his impending removal? Is it REALLY a good idea to allow an about-to-be-fired individual to have 30 days of access to sensitive government documents and personal citizen data? Does anyone REALLY believe that a civil servant who is about to be terminated is not under the biggest stress of his life (and we all know what stress does to making sane decisions)?
Congress’s creation of Notice Leave, we wrote, was the best Christmas present any civil servant could have asked for. Finally, we had a method specifically designed to protect federal employees from getting killed by a stressed-out coworker who has a pending removal over his head. With no limitation on how long Notice Leave could be used, we could, for the first time in history, hand the employee a proposed termination, escort him out the front door and bar him from returning, and still protect his right to receive a salary for the duration of the notice period without using administrative leave.
Well, leave it up to OPM to screw up a perfectly fine opportunity. Rather than taking the new law, concluding that when an employee’s removal is proposed it categorically “jeopardizes the government’s interest” (statutory standard) to keep him in the workplace for 30 days, and issuing a regulation to put that into effect, OPM has taken just the opposite approach. Last week it proposed a regulation that will make it nearly impossible for an agency to protect itself by putting a failed employee on Notice Leave.
Here’s what OPM’s policy should say, according to FELTG:
5 CFR 630.1505 Administration of Notice Leave
- Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.
Here’s what OPM has proposed otherwise. We’ve restructured the requirements for clarity and emphasis on the ridiculous burden that OPM is creating:
5 CFR 630.1503 – 1506
Prior to placing an employee on notice leave the agency may not establish a categorical policy and must document the following for each incident of notice leave:
(1) The reasons for initial authorization of the notice leave, including the alleged
action(s) of the employee that required issuance of a notice of a proposed adverse action;
(2) The basis for the determination that the employee’s retention in a work status would:
(i) Pose a threat to the employee or others;
(ii) Result in the destruction of evidence relevant to an investigation;
(iii) Result in loss of or damage to Government property; or
(iv) Otherwise jeopardize legitimate Government interests.
(3) An explanation of why any of the following options are not appropriate:
(i) Keeping the employee in a duty status by assigning the employee to
duties in which the employee no longer poses a threat,
(ii) Allowing the employee to voluntarily take leave (paid or unpaid) or paid time off, as appropriate under the rules governing each category of leave or paid time off;
(iii) Carrying the employee in absent without leave status, if the employee is
absent from duty without approval; and
(iv) For an employee subject to a notice period, curtailing the notice period if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, consistent with 5 CFR 752.404(d)(1).
(4) When making the decisions above, the agency must document its consideration of:
(i) The nature and severity of the employee’s exhibited or alleged behavior;
(ii) The nature of the agency’s or employee’s work and the ability of the agency to accomplish its mission; and
(iii) Other impacts of the employee’s continued presence in the workplace
detrimental to legitimate Government interests.
(5) When deciding whether an employee’s presence is detrimental to government interests, the agency must document consideration of whether the employee will pose an unacceptable risk to:
(i) The life, safety, or health of employees, contractors, vendors or visitors to a Federal facility;
(ii) The Government’s physical assets or information systems;
(iii) Personal property;
(iv) Records, including classified, privileged, proprietary, financial or medical records; or
(v) The privacy of the individuals whose data the Government holds in its
(6) And if documenting the rationale for each particular grant of Notice Leave isn’t enough, the agency also has to document:
(i) The length of the period of notice leave;
(ii) The amount of salary paid to the employee during the period of leave;
(iii) The reasons for authorizing the leave:
(iv) Whether the employee was required to telework under during the period of the investigation, including the reasons for requiring or not requiring the employee to telework; and
(v) The action taken by the agency at the end of the period of leave.
In its preamble to these proposed regulatory changes, OPM opines the reason it is requiring that all other conceivable options short of Notice Leave be exhausted and documented rather than simply implementing Notice Leave commensurate with the proposed removal: during the notice period by avoiding Notice Leave if possible, the agency can “continue to benefit from the employee’s skillset and abilities to further the agency’s mission.” Well, that’s just stupid. Think who these people are who have had their removals proposed. They are almost always civil servants who have:
- Already engaged in misconduct so bad that their supervisors have decided, after doing a Douglas factor analysis, that these bad hombres should be fired,
- Performed so poorly as to be determined to be unacceptable, given a month or better to improve their performance, and still continue to be unacceptable performers, or
- Have such bad medical infirmities that they cannot perform their job.
And OPM wants us to keep these people in the workplace “to continue to benefit from their skillset.” We think that somebody at OPM needs a better skillset if they’re going to be drafting regulations in this area.
Here’s another part of the preamble we just love. OPM says that prior to implementing a period of Notice Leave, the supervisor should consult with their human resources office or general counsel. Well, why? I have held each of those positions in my career. Here at FELTG, we have trained thousands of human resources specialists and agency attorneys over the years. And you know what? We have never, ever met anyone in one of these positions who has been trained in how to predict future violent behavior. I was a psychologist before I became an employment lawyer. Any trained mental health worker who claims that he can predict with certainty whether an individual will engage in future violent behavior is engaging in malpractice.
We know better. We read report after report of workplace killings and see that in many (if not most) of them, the perpetrator had no history of violence or mental disorder, and often was well liked by coworkers. Those of you who have lived around the Beltway might remember the workplace killing that happened several years ago at the Lululemon store in Bethesda. There were two young women involved. When Worker A told Worker B that Worker B’s theft of clothing had to be reported to management, Worker B began stabbing Worker A. While conducting the autopsy, the coroner reported over 300 stab wounds in Worker A’s body. Without exception, Worker B was described by friends and coworkers as mild-mannered, polite and cheerful, with no history with the police or of violence.
OPM’s draft regulations, by referring the matter to untrained attorneys and human resources practitioners for advice, is taking the decision away from the person in the best position to make the decision: the immediate supervisor. That supervisor also happens to be in a position where she is most likely to be the victim of any workplace violence that results from a proposed removal. Years ago, I had a supervisor-client in an agency who called me in tears. I had advised her to put the employee on administrative leave once she issued the proposed removal. Unfortunately, when she tried to put that in the draft proposal letter, the human resources specialist advising her told her that he “would not let her do that,” that he “could tell who was going to be violent,” and then went back to the HR office where he was safe behind two locked doors.
I have never felt closer to whacking an HR specialist in my life.
We cannot imagine what public good is served by OPM’s placement of these significant limitations on an agency’s authority to impose Notice Leave. It cannot be the saving of tax dollars. The employee gets paid whether at work or on Notice Leave. So that isn’t it.
Maybe it’s the perceived value of having the employee’s work product during the notice period; work product from someone who is either a) medically unfit, b) a proven non-performer, or c) a rule-breaker. With that, let’s play a little mind game:
- First, based on your experience in the civil service, place some dollar value on the work product you estimate you’re going to get from someone who falls into one of these three categories, after you’ve told him that he probably will be fired within 30 days. Put that number here and call it Value A: $__________.
- Next, place some dollar value on your life. And the lives of the other employees in the immediate vicinity of your office. And the members of the public wandering around your facility. And the super-secret information maintained by your agency in your data files. And avoiding the disruption to government operations that might be caused by workplace violence. Place that number here: $___________. Now, multiple this last number by a percentage that represents the likelihood, in your opinion, of violence erupting from an employee who gets a proposed removal (e.g., 1%, 5%, 50% … whatever). Put that number here and call it Value B: ________.
If your Value B is larger than your Value A, you will agree with FELTG’s proposed optional regulation that would allow immediate supervisors to impose notice leave with the least constraints possible under the law.
If your Value A is larger than your Value B, you have an exceedingly unique view of life, and you should apply to work at OPM, if you do not already.
OPM! For god’s sake, this is life and death stuff we’re talking about here!
Did you not hear about the coworker murders in the rampage at the Washington Navy Yard not long ago? Are you ignorant about the history of people like Nidal Hasan, the psychiatrist who shot 43 coworkers in a government workplace in 2009? Are you unaware that the Bureau of Labor Statistics says that every week day in America, two people kill a coworker?
These proposed regulations were drafted by someone who either:
- Has never spent any time in a federal workplace, or
- Doesn’t care that they are putting lives in danger for the sole benefit of … I have no freaking idea.
Here’s a reality check. In our FELTG seminars, this topic often comes up when we are working with a group of supervisors. We have never met a supervisor who thought it was a good idea to hand an employee a proposed removal, then keep the employee in the workplace for another 30 days. Certainly, that would not happen in a private sector company. OPM, if you care at all about the lives of federal employees and do not agree with what we’ve written here, check it out for yourself. Pull together a group of front-line supervisors from agencies throughout government. Ask them two simple questions: “How many of you think it is a good idea to keep an employee at work once his removal is proposed?” Then, “How many of you think that an employee should be removed from the workplace once she receives a proposed removal?” We guarantee you the answers you get will support what we’re saying here.
Here’s another reality check. Congress passes laws that control the civil service. Yet, very few members of Congress have ever worked as civil servants or really know much what it’s like to try to run a federal agency at the front lines. We can’t expect them to appreciate all the nuances of what we are trying to do and what life is really like out here in the trenches.
But we should expect that from OPM. As I understand government, that is the agency that is supposed to take laws passed by Congress and build regulations based on them that actually work, consistent with the flexibilities within the law. OPM has not done that here, and instead is in the process of creating a dangerous workplace that could never have been the intent of Congress when it created Notice Leave. We cannot move toward the goal of increasing the accountability of the civil service if OPM issues regulations that make supervisors fear for their lives when they try to fire a bad employee. That is EXACTLY what these proposed regulations will do.
Your comments are due to OPM by August 14, https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf. Union folk, form the picket lines at 1900 E Street, NW; FELTG will march with you. Email: email@example.com. When submitting comments via this email address, place in the subject line: RIN 3206-AN49: Proposed Rule Comments-Administrative Leave. In the body of your message identify the section(s) of the regulations you are providing comments on.
It’s your life. Decide how much effort you want to put into defending it. Wiley@FELTG.com