PRIA, Government Policy, Made Personal

Summary

Agencies may put an employee on paid leave during an investigation or during the legal notice period before a proposed adverse action. The agency must decide that the employee’s presence could be dangerous, could destroy evidence, could damage government property, or could otherwise harm government interests. Before using this leave the agency must try other options like reassigning the employee, letting the employee use regular leave, marking the employee as absent without leave if appropriate, or shortening a notice period when a crime is suspected. Investigative leave can follow an initial 10-work-day period and last up to 30 work days. An agency can approve extra 30-work-day extensions, but the first set of extra time can total no more than 90 work days. After that, the agency can grant further 30-work-day extensions only if an investigative body certifies more time is needed and the agency sends a report to certain congressional committees within 5 business days of each extension. Agencies must give the employee written notice about the leave, act by the day after a leave period ends (return to work, reassign, start an adverse action, or extend under the rules), keep records about the leave, and make records available to oversight committees and OPM. Guidance and regulations must be issued within 270 days. Placement on investigative leave for 70 or more work days counts as a personnel action for Special Counsel review. Definitions (one line each): “Agency” = most Executive agencies, includes VA, excludes GAO. “Chief Human Capital Officer” = agency HR lead or equivalent. “Committees of jurisdiction” = the Congressional committees that oversee the agency. “Director” = head of OPM. “Employee” = federal employee under section 2105, excluding certain intermittent workers and inspectors general. “Investigative entity” = internal investigators, OIG, Attorney General, or Office of Special Counsel. “Investigative leave” = paid leave used when an employee is the subject of an investigation. “Notice leave” = paid leave used during a legal notice period. “Notice period” = time from legal notice of a proposed adverse action until the agency may take the action.

Title 5, §6329b

Government Organization and Employees, Source: USLM XML via OLRC

(a)Definitions.—

In this section

(1)

(2)the term “Chief Human Capital Officer” means—

(A)the Chief Human Capital Officer of an agency designated or appointed under section 1401; or

(B)the equivalent;

(3)the term “committees of jurisdiction”, with respect to an agency, means each committee of the Senate or House of Representatives with jurisdiction over the agency;

(4)the term “Director” means the Director of the Office of Personnel Management;

(5)the term “employee”—

(A)has the meaning given the term in section 2105; and

(B)does not include—

(i)an intermittent employee who does not have an established regular tour of duty during the administrative workweek; or

(ii)the Inspector General of an agency;

(6)the term “investigative entity” means—

(A)an internal investigative unit of an agency granting investigative leave under this section;

(B)the Office of Inspector General of an agency granting investigative leave under this section;

(C)the Attorney General; and

(D)the Office of Special Counsel;

(7)the term “investigative leave” means leave—

(A)without loss of or reduction in—

(i)pay;

(ii)leave to which an employee is otherwise entitled under law; or

(iii)credit for time or service;

(B)that is not authorized under any other provision of law; and

(C)in which an employee who is the subject of an investigation is placed;

(8)the term “notice leave” means leave—

(A)without loss of or reduction in—

(i)pay;

(ii)leave to which an employee is otherwise entitled under law; or

(iii)credit for time or service;

(B)that is not authorized under any other provision of law; and

(C)in which an employee who is in a notice period is placed; and

(9)the term “notice period” means a period beginning on the date on which an employee is provided notice required under law of a proposed adverse action against the employee and ending on the date on which an agency may take the adverse action.

(b)Leave for Employees Under Investigation or in a Notice Period.—

(1)Authority.—

An agency may, in accordance with paragraph (2), place an employee in— (A)

(B)notice leave if the employee is in a notice period; or

(C)notice leave following a placement in investigative leave if, not later than the day after the last day of the period of investigative leave—

(i)the agency proposes or initiates an adverse action against the employee; and

(ii)the agency determines that the employee continues to meet 1 or more of the criteria described in paragraph (2)(A).

(2)Requirements.—

An agency may place an employee in leave under paragraph (1) only if the agency has—

(A)made a determination with respect to the employee that the continued presence of the employee in the workplace during an investigation of the employee or while the employee is in a notice period, as applicable, may—

(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;

(B)considered—

(i)assigning the employee to duties in which the employee no longer poses a threat described in clauses (i) through (iv) of subparagraph (A);

(ii)allowing the employee to take leave for which the employee is eligible;

(iii)if the employee is absent from duty without approved leave, carrying the employee in absence without leave status; 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; and

(C)determined that none of the available options under clauses (i) through (iv) of subparagraph (B) is appropriate.

(3)Duration of leave.—

(A)Investigative leave.—

Upon the expiration of the 10 work day period described in section 6329a(b)(1) with respect to an employee, and if an agency determines that an extended investigation of the employee is necessary, the agency may place the employee in investigative leave for a period of not more than 30 work days.

(B)Notice leave.—

Placement of an employee in notice leave shall be for a period not longer than the duration of the notice period.

(4)Explanation of leave.—

(A)In general.—

If an agency places an employee in leave under this subsection, the agency shall provide the employee a written explanation of whether the employee was placed in investigative leave or notice leave.

(B)Explanation.—

The written notice under subparagraph (A) shall describe the limitations of the leave placement, including—

(i)the applicable limitations under paragraph (3); and

(ii)in the case of a placement in investigative leave, an explanation that, at the conclusion of the period of leave, the agency shall take an action under paragraph (5).

(5)Agency action.—

Not later than the day after the last day of a period of investigative leave for an employee under paragraph (1), an agency shall—

(A)return the employee to regular duty status;

(B)take 1 or more of the actions under clauses (i) through (iv) of paragraph (2)(B);

(C)propose or initiate an adverse action against the employee as provided under law; or

(D)extend the period of investigative leave under subsections (c) and (d).

(6)Rule of construction.—

Nothing in paragraph (5) shall be construed to prevent the continued investigation of an employee, except that the placement of an employee in investigative leave may not be extended for that purpose except as provided in subsections (c) and (d).

(c)Initial Extension of Investigative Leave.—

(1)In general.—

Subject to paragraph (4), if the Chief Human Capital Officer of an agency, or the designee of the Chief Human Capital Officer, approves such an extension after consulting with the investigator responsible for conducting the investigation to which an employee is subject, the agency may extend the period of investigative leave for the employee under subsection (b) for not more than 30 work days.

(2)Maximum number of extensions.—

The total period of additional investigative leave for an employee under paragraph (1) may not exceed 90 work days.

(3)Designation guidance.—

Not later than 270 days after the date of enactment of this section, the Chief Human Capital Officers Council shall issue guidance to ensure that if the Chief Human Capital Officer of an agency delegates the authority to approve an extension under paragraph (1) to a designee, the designee is at a sufficiently high level within the agency to make an impartial and independent determination regarding the extension.

(4)Extensions for OIG employees.—

(A)Approval.—

In the case of an employee of an Office of Inspector General—

(i)the Inspector General or the designee of the Inspector General, rather than the Chief Human Capital Officer or the designee of the Chief Human Capital Officer, shall approve an extension of a period of investigative leave for the employee under paragraph (1); or

(ii)at the request of the Inspector General, the head of the agency within which the Office of Inspector General is located shall designate an official of the agency to approve an extension of a period of investigative leave for the employee under paragraph (1).

(B)Guidance.—

Not later than 270 calendar days after the date of enactment of this section, the Council of the Inspectors General on Integrity and Efficiency shall issue guidance to ensure that if the Inspector General or the head of an agency, at the request of the Inspector General, delegates the authority to approve an extension under subparagraph (A) to a designee, the designee is at a sufficiently high level within the Office of Inspector General or the agency, as applicable, to make an impartial and independent determination regarding the extension.

(d)Further Extension of Investigative Leave.—

(1)Report.—

After reaching the limit under subsection (c)(2) and if an investigative entity submits a certification under paragraph (2) of this subsection, an agency may further extend a period of investigative leave for an employee for periods of not more than 30 work days each if, not later than 5 business days after granting each further extension, the agency submits to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives, along with any other committees of jurisdiction, a report containing—

(A)the title, position, office or agency subcomponent, job series, pay grade, and salary of the employee;

(B)a description of the duties of the employee;

(C)the reason the employee was placed in investigative leave;

(D)an explanation as to why—

(i)the employee poses a threat described in clauses (i) through (iv) of subsection (b)(2)(A); and

(ii)the agency is not able to reassign the employee to another position within the agency;

(E)in the case of an employee required to telework under section 6502(c) during the investigation of the employee—

(i)the reasons that the agency required the employee to telework under that section; and

(ii)the duration of the teleworking requirement;

(F)the status of the investigation of the employee;

(G)the certification described in paragraph (2); and

(H)in the case of a completed investigation of the employee—

(i)the results of the investigation; and

(ii)the reason that the employee remains in investigative leave.

(2)Certification.—

If, after an employee has reached the limit under subsection (c)(2), an investigative entity determines that additional time is needed to complete the investigation of the employee, the investigative entity shall—

(A)certify to the appropriate agency that additional time is needed to complete the investigation of the employee; and

(B)include in the certification an estimate of the amount of time that is necessary to complete the investigation of the employee.

(3)No extensions after completion of investigation.—

An agency may not further extend a period of investigative leave of an employee under paragraph (1) on or after the date that is 30 calendar days after the completion of the investigation of the employee by an investigative entity.

(e)Consultation Guidance.—

Not later than 270 calendar days after the date of enactment of this section, the Council of the Inspectors General on Integrity and Efficiency, in consultation with the Attorney General and the Special Counsel, shall issue guidance on best practices for consultation between an investigator and an agency on the need to place an employee in investigative leave during an investigation of the employee, including during a criminal investigation, because the continued presence of the employee in the workplace during the investigation may—

(1)pose a threat to the employee or others;

(2)result in the destruction of evidence relevant to an investigation;

(3)result in loss of or damage to Government property; or

(4)otherwise jeopardize legitimate Government interests.

(f)Reporting and Records.—

(1)In general.—

An agency shall keep a record of the placement of an employee in investigative leave or notice leave by the agency, including—

(A)the basis for the determination made under subsection (b)(2)(A);

(B)an explanation of why an action under clauses (i) through (iv) of subsection (b)(2)(B) was not appropriate;

(C)the length of the period of leave;

(D)the amount of salary paid to the employee during the period of leave;

(E)the reasons for authorizing the leave, including, if applicable, the recommendation made by an investigator under subsection (c)(1);

(F)whether the employee is required to telework under section 6502(c) during the investigation, including the reasons for requiring the employee to telework; and

(G)the action taken by the agency at the end of the period of leave, including, if applicable, the granting of any extension of a period of investigative leave under subsection (c) or (d).

(2)Availability of records.—

An agency shall make a record kept under paragraph (1) available—

(A)to any committee of jurisdiction, upon request;

(B)to the Office of Personnel Management; and

(C)as otherwise required by law, including for the purposes of the Administrative Leave Act of 2016 and the amendments made by that Act.

(g)Recourse to the Office of Special Counsel.—

For purposes of subchapter II of chapter 12 and section 1221, placement on investigative leave under subsection (b) of this section for a period of not less than 70 work days shall be considered a personnel action under paragraph (8) or (9) of section 2302(b).

(h)Regulations.—

(1)OPM action.—

Not later than 270 calendar days after the date of enactment of this section, the Director shall prescribe regulations to carry out this section, including guidance to agencies regarding—

(A)acceptable purposes for the use of—

(i)investigative leave; and

(ii)notice leave;

(B)the proper recording of—

(i)the leave categories described in subparagraph (A); and

(ii)other leave authorized by law;

(C)baseline factors that an agency shall consider when making a determination that the continued presence of an employee in the workplace may—

(i)pose a threat to the employee or others;

(ii)result in the destruction of evidence relevant to an investigation;

(iii)result in loss or damage to Government property; or

(iv)otherwise jeopardize legitimate Government interests; and

(D)procedures and criteria for the approval of an extension of a period of investigative leave under subsection (c) or (d).

(2)Agency action.—

Not later than 270 calendar days after the date on which the Director prescribes regulations under paragraph (1), each agency shall revise and implement the internal policies of the agency to meet the requirements of this section.

(i)Relation to Other Laws.—

Notwithstanding subsection (a) of section 7421 of title 38, this section shall apply to an employee described in subsection (b) of that section.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The date of enactment of this section, referred to in subsecs. (c)(3), (4)(B), (e) and (h)(1), is the date of enactment of Pub. L. 114–328, which was approved Dec. 23, 2016. The Administrative Leave Act of 2016, referred to in subsec. (f)(2)(C), is section 1138 of title XI of div. A of Pub. L. 114–328, Dec. 23, 2016, 130 Stat. 2460. For complete classification of this Act to the Code, see

Short Title

of 2016 Amendment note set out under section 101 of this title and Tables.

§6329b Investigative Leave and Notice Leave