Administrative Leave Pending Investigation

When a federal agency initiates a misconduct investigation, one of the first steps it often takes is removing the employee from the workplace. This is frequently accomplished by placing the employee on administrative leave. For a professional career federal employee, this status can be confusing and stressful.

Understanding the legal authority behind administrative leave, its impact on your career, and your rights—or lack thereof—to appeal is critical to navigating the investigation process and determining whether any basis for appeal exists.

Key Point: The agency has sole control over access to the worksite and the timing of federal employee duties. As an employee, you don't have the right to access your workplace without your supervisor's permission. The question is whether a federal employee suffers any tangible employment consequences, like a loss in pay or benefits, if they're denied access to the workplace and/or their duties.

What is Administrative Leave?

Historically, "administrative leave" was an informal term for any excused absence from duty without loss of pay or charge to an employee's personal leave. However, the Administrative Leave Act of 2016 (codified at 5 U.S.C. § 6329a) and subsequent Office of Personnel Management (OPM) regulations have formalized and limited its use compared to how it was used.

Under current law, administrative leave is defined as an "absence from duty without loss of or reduction in pay, leave to which an employee is otherwise entitled under law, or credit for time or service." 5 U.S.C. § 6329a(a).

Administrative vs. Investigative Leave

Agencies no longer have unlimited discretion to keep employees on "administrative leave" for months. Believe it or not, this would happen adn in some cases, agencies would literally forget about the employee. The law now distinguishes between several types of paid excused absence:

Administrative Leave (5 U.S.C. § 6329a)

Agencies may grant administrative leave for short periods, such as when normal operations are interrupted or for "other circumstances" authorized by agency regulations. 5 C.F.R. § 630.1603. Crucially, administrative leave used for investigative purposes is generally limited to 10 workdays in a calendar year. 5 U.S.C. § 6329a(b)(1). However, this limitation is frequently exceeded as a practical matter.

Investigative Leave (5 U.S.C. § 6329b)

In many instances, federla agencies will assign some employees under investigation to different duties and even in different locations if determined necessary. However, if an investigation requires more (unusual) time, or an agency needs to protect other employees, an agency may transition the employee to "investigative leave." To do this, the agency must determine that the employee’s continued presence in the workplace may:

• Pose a threat to the employee or others;

• Result in the loss of or damage to Government property; or

• Jeopardize legitimate Government interests. 5 U.S.C. § 6329b(b)(1).

Investigative leave is granted in 30-day increments, and the agency must provide a written explanation if the leave needs to be extended beyond the initial period. 5 U.S.C. § 6329b(b)(2).

Impact of Being Placed on Paid Leave

While you remain in a full pay status, being placed on administrative or investigative leave has several practical impacts:

• Physical Bar: You are typically barred from entering the worksite without prior authorization.

• Computer Access: Agencies often suspend IT access and require the return of government-issued devices. However, this is not always the case and we have had cases in which our clients continued to have access.

• Duty to Remain Available: Because you are being paid, you are technically in a duty status. You must remain available to answer questions or report for interviews during your normal working hours. If you are not going to be available to immediately return to duty, you must take leave or risk disciplinary action.

• Efficiency of the Service: The agency's primary justification for this action is that your absence promotes the "efficiency of the service." 5 U.S.C. § 7513(a). Signiifcant discretion is afforded to agency judgement in this regard. In otherwords, it is doubtful a federal employee could counter this argument.

Can You Appeal Administrative Leave?

The short answer for most federal employees is no.

Under the Civil Service Reform Act, the Merit Systems Protection Board (MSPB) only has jurisdiction over "adverse actions." These include removals, suspensions for more than 14 days, reductions in grade, reductions in pay, and furloughs of 30 days or less. 5 U.S.C. § 7512.

Because administrative leave is a paid status, the courts and the MSPB have consistently held that it does not constitute a suspension or an adverse action. Perez v. Dep’t of Justice, 480 F.3d 1309, 1311 (Fed. Cir. 2007) ("Placement on administrative leave... is not a 'suspension' for purposes of 5 U.S.C. § 7512(2)."). Without a loss of pay, there is generally no "harm" that the MSPB can remedy.

Important, Though Unusual Exceptions

While you cannot usually appeal the leave itself, there are specific circumstances where legal challenges may arise:

• Whistleblower Reprisal: If you believe the leave was a "personnel action" taken in retaliation for a protected disclosure, you may seek corrective action through the Office of Special Counsel (OSC) or an Individual Right of Action (IRA) appeal. 5 U.S.C. § 2302(b)(8).

• Constructive Adverse Action: If the agency places you on leave and then stops your pay (enforced leave), it becomes an appealable suspension if it lasts more than 14 days. Abbott v. U.S. Postal Serv., 121 M.S.P.R. 294, ¶ 10 (2014).

• Due Process Violations: If the agency fails to follow the strict notice and reporting requirements for investigative leave under the 2016 Act, you may have grounds for a grievance or a complaint to the OPM.

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Advice for Federal Employees

If you are placed on administrative leave, particularly "Investigative Leave", do not assume it is a "paid vacation." It is a formal signal that the agency is seriously considering disciplinary dverse action. You should begin contingency planning.

1. Strictly follow all instructions regarding communication and workplace access.

2. Document everything that occurred leading up to the leave.

3. Consult with an expert to prepare for the administrative investigation and any subsequent proposal for disciplinary or adverse action.

How InformedFED Can Help

Our Expertise, Your Advantage

Our expertise lies in providing comprehensive consultative and transactional administrative litigation services. We meticulously analyze and prepare your complaint, appeal, relevant documents, evidence files, and strategies to ensure that you can effectively safeguard your career, your union members, and pursue damages when appropriate and do so cost-effectively.

Our services include support for, but are not limited to:

• Discipline and Adverse Actions: Developing compelling written and oral responses to proposed removals, suspensions, and performance-based actions. These written responses will serve as the foundation for any appeal or complaint submitted to the Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), Agency grievance procedure, or arbitration.

• EEO Complaints: Initiating and managing informal and formal complaint stages, including mediation, investigations, reviewing Reports of Investigation (ROI), and assisting during the hearing stage.

• Appeals (MSPB & FLRA): Providing comprehensive support for Merit Systems Protection Board appeals and Unfair Labor Practice complaints.

• Career Transitions: Expert guidance on FERS Disability Retirement applications and Reasonable Accommodation requests, reconsiderations, and appeals.

• Suitability and Security: Former Suitability Adjudicators conduct document reviews and consultations regarding background checks and SF-50 coding errors. Additionally, they prepare written responses and requests for remediation.

• Union Assistance: Our consultants collaborate closely with local union representatives and leadership to ensure unions provide the most effective representation to their members. Upon request from the local union, we will either work directly with its members or with its union representatives. Additionally, our consultants provide both small group and large group training for union training programs.

Why Federal Employees and Unions Choose InformedFED

• The Cost-Control Model: We eliminate massive upfront financial risks by offering flat-fee services and low-minimum hourly retainers, making expert support affordable even for issues where the financial recovery wouldn't justify a high-priced attorney.

• Unbundled, "A La Carte" Services: You retain control and only pay for the services you need. You can hire us for a single task—like an Initial Case Assessment (ICA)—and decide your next steps from there with no ongoing obligation.

• Unmatched Accessibility: We are the only experts available to clients 24/7, including evenings, weekends, and holidays, ensuring you never miss a critical deadline.

• Insider Knowledge: Our consultants possess decades of "internal" knowledge of agency policies and HR procedures, providing a strategic advantage during early dispute stages and settlement negotiations.

• Indirect Representation: We offer "indirect representation," allowing you to retain us for specific tasks or phases—such as writing responses or second opinions, significantly reducing costs compared to full scope legal representation.

Disclaimer: InformedFED provides credentialed and recognized Subject Matter Experts to deliver administrative, litigation, and consulting support directly to federal employees and unions.  We do not provide legal representation.  Click here to book a no obligation consultation.