By William Wiley, December 14, 2016
Earlier in this newsletter, we explained how the recently enacted “Administrative Leave Act of 2016” limits the length of time that an agency can keep an employee on paid leave while an investigation is being conducted. We also noted that an employee who has left the agency during the course of an investigation must have his OPF annotated after departure if the results of the investigation include “adverse findings.” Clearly, these are important aspects of the legislation for those legislators who proposed the bill initially. However, tucked in this legislation is a much more important change to our business of federal accountability, a change that affects every supervisor and every workplace in government much more than do the restrictions on time limits for investigations and annotations in retired OPFs stored in some vault in a mountain in Virginia:
Notice Leave
The situation has been this for nearly 40 years:
- The law requires that a bad employee be kept on the payroll for at least 30 days after he is given notice that he is probably about to be fired.
- OPM, in a snit of ridiculous, short-sighted, rule-making, has in force a regulation that says that normally an employee who has been given notice of an impending removal is to be kept in her regular position.
- Therefore, agencies who don’t think things through keep bad employees in the federal workplace where they have access to government computer systems, coworkers, and members of the public during the most stressful of moments one can imagine, with nothing to lose and unbounded harm that can be caused. All you need for a mass killing in a federal workplace is a depressed individual with an automatic rifle carrying a valid government ID badge and a proposed removal notice.
According to the Bureau of Labor and Statistics, two people are killed by a coworker every workday in America. You would think that the policy writers at OPM would have more concern for the lives of their fellow civil servants.
Add to this foolishness the decisions of some senior managers that bad employees should not be placed on administrative leave during the 30-day notice period that follows a proposed removal. This combination of poorly-thought-through policy mandates creates a burning fuse of potential workplace death that could easily be avoided if those who made the policy worked on the front lines where their lives would be in danger.
But finally, we have relief from this awful policy combination. The new law creates a form of excused absence to be known henceforth as Notice Leave (NL). It provides authority for an agency to place the bad employee into a paid excusal status for anyone whose removal has been proposed. The length of NL, unlike the restrictions placed on IL, is “the duration of the notice period.”
We’ve been fighting for this sort of protection for the federal workplace so long that they should have named it “FELTG Leave.” But we’ll take comfort in knowing that maybe somebody who is reading this newsletter today will be around for another edition because of the agency’s authority to get people out of the workplace once their removal is proposed, no matter what they call it.
Be careful, though. The law lays out several criteria that have to be met before NL (aka FELTG-L) can be enforced. If your agency’s leadership fails to see the importance of getting bad employees out of the workplace once their proposal is removed, your policy makers may make the mistake of making it difficult to authorize NL. So stay tuned. Here at FELTG we have your back and will soon be giving specific recommendations to you and your policy makers as to how to handle this new flexibility for the greatest benefit, in spite of what some might see as road blocks to fully exploiting its benefits.
Hey, Congress. Thanks for the early Christmas present. Whether you realize it, or not. Happy Holidays right back at you.
