Month: January 2016

The Administrative Leave Act of 2016, proposed by Senators Grassley, Tester, Johnson, and Carper, is something we need to see more of. It is a bi-partisan bill that addresses a real problem without a lot of political posturing and partisanship. After thoroughly reviewing the bill, I have to say it is a good piece of legislation that I hope passes and is signed by the President.

The issue of administrative leave has been in the news since late 2014, when the Government Accountability Office issued a report that outlined the mess that administrative leave has become. The GAO report was followed by an article in the Washington Post that put the issue in the news in a big way. Suddenly everyone was paying attention to a problem that had not been in the public eye. Most federal HR professionals knew there was a problem, but there was no way for them to fix it at their levels. The only real solution would be either government-wide regulations or a new law that would put restrictions on use of admin leave and require reporting so the extent to which it is used can be tracked and monitored.

Because there is no consistency across government in how administrative leave is used and recorded, it is impossible to tell how much of it is actually being used. Some agencies are recording holidays as administrative leave, some record official time for union representatives as admin leave, few agencies record the reasons for it, and almost no one is managing it in a consistent manner. The spotlight GAO shone on the issue is now resulting in legislation to fix it. My contacts at the Office of Personnel Management tell me they had serous questions about the extent of OPM’s authority to issue regulations to solve the problem.

So now we have a bill to fix it. Given the difficulty in passing meaningful legislation that we have seen in recent years, this bill is a bit of a surprise. It is actually good. It recognizes that there are legitimate reasons for placing an employee on admin leave and that doing so can harm an employee or be used to go after whistleblowers. It also recognizes that putting employees on admin leave is sometimes too easy and because no one tracks it, it can go on far too long. Here are the key provisions and why they are necessary:

OPM Regulations. “Not later than 1 year after the date of enactment of this section, the Director of the Office of Personnel Management shall

• prescribe regulations to carry out this section; and
• prescribe regulations that provide guidance to agencies regarding—
  • (i) acceptable agency uses of administrative leave; and
  • the proper recording of
    • administrative leave; and
    • other leave authorized by law.

Because it was unclear if OPM actually had authority to regulate admin leave, this provision is necessary to make to grant them that authority and to provide a date certain on which those regulations would be issued. It also requires agencies to update their own policies within one year of OPM’s regulations being issued.

Investigative Leave and Notice Leave. The bill provides two new types of leave when an employee is under investigation or has been given notice of a proposed adverse action. It defines “notice period” as “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.” The most important provisions are restrictions on reasons using both types of leave and their duration. Reasons are restricted to situations where the agency determines “the continued presence of the employee in the workplace during an investigation of the employee or while the employee is in a notice period, if applicable, may pose a threat to the employee or others; result in the destruction of evidence relevant to an investigation; result in loss of or damage to Government property; or otherwise jeopardize legitimate Government interests.” It also requires agencies to consider options such as details to different duties or telework to avoid placing the employee on investigative or notice leave. Both types of leave have limitations on their duration and require the employee to be given written notice of the reasons.

That last requirement may sound a bit odd, but it is absolutely necessary. I have been contacted by employees who were placed on admin leave and not given a reason why. There is no way an employee can defend against an action when s/he has no idea why it is being taken. The limits on duration provide for extensions, but escalate the approval level and congressional notification requirements as a means of pressing agencies to bring matters to a conclusion. Both requirements make sense and are likely to be effective.

Weather and Safety Leave. The bill provides for leave when “an employee or group of employees is prevented from safely traveling to or performing work at an approved location due to an act of God; a terrorist attack; or another condition that prevents the employee or group of employees from safely traveling to or performing work at an approved location.” This provision clarifies the legal authority for such leave, places reporting requirements on agencies, and requires OPM to issue regulations to govern its use.

Conclusions

Unlike some legislation we have seen in recent years, this bill does not bash federal employees, deprive them of rights, or weaken Civil Service protections. It is neither partisan nor overtly political. It is balanced, recognizes there is a problem that can be fixed, and establishes a framework that makes that fix much more likely to happen. It brings transparency, applies pressure on agencies to manage their use of admin leave, and protects employee rights. This is a good bill and one that I hope is a sign of more such legislation to come.

 

 

 

Phased retirement, designed to allow federal workers to ease their transition into retirement while also helping their agencies get replacements up to speed, is not getting many takers.  A recent Government Executive article on phased retirement said OPM has received 31 applications for phased retirement since the law enabling it was passed in 2012.

With all of the hype surrounding the passage of phased retirement, you might have expected thousands of people to have signed up. What happened? Why did the reality and the hype not align? Is this an OPM problem? An Agency problem? Or not a problem at all? I think the answer is the latter. Here’s why.

Some people blame OPM. They say OPM took 2 years to issue regulations implementing phased retirement, costing valuable momentum that might have made employees much more interested in it. Other people blame agencies, saying they are dawdling and not getting their own policies in place, and when they do, they restrict it so much that most employees cannot take advantage of it. Another camp blames the unions, saying agencies have not been able to complete bargaining on the subject and that is keeping the phased retirement option off the table for most employees.

The problem with all of these “blame somebody” options is that they assume the federal workforce was eagerly looking forward to phased retirement and would jump at the chance to take advantage of it. It is looking more and more like that is not the case, and phased retirement is a solution to a problem that does not exist.

Let’s take a look at why that may be the case. First, how many people do you know who want to semi-retire from the government? I do not mean the people we have all known who retired On the job, but still showed up every day to collect a full paycheck. Most people who want to retire want to leave government. They may have worked 25, 30 or 40 or more years and they are ready to go. They do not want to get up every morning, fight traffic, deal with office politics, work for the boss-of-the-month, and deal with yet another new political appointee. For those folks (and I believe that is most retirees), they are ready to move on with the next phase of their lives.

What about the people who want to retire from government, but who think they would be bored and still want to work? Wouldn’t they be great candidates for phased retirement? Probably not. The problem with phased retirement is that the people who take it are neither in government nor out. They get a partial retirement check and a partial paycheck. If they really want to work, the people who do the math see that they are far better off retiring and going to work somewhere else. If they go to work in academia, for a non-profit, a contractor, or state or local government, they collect a full retirement check and a full paycheck and end up with much more income than they had as a federal employee.

Add to that the difficulty phased retirement can create for employers. They have to keep the employee (who can work only 20 hours per week) and hire a replacement. If the replacement works more than 20 hours per week, the agency’s cost goes up by 50% or more. If they don’t they have to hire a part-time employee. Part-time employees are harder to find, cost more per hour of work than full-time employees, and would have to have to plan to transition from part-time to full-time when the phased retiree retires. In addition, because they consume resources (such as computers, administrative costs such as issuing paychecks, and others) at the same rate as full-time workers, overhead costs go up. The net cost to the agency goes up. The supervisor of the phased retiree has two employees to supervise rather than one. There is confusion about who really does the job. The idea of job-sharing never really caught on in a big way in government for those reasons. Phased retirement simply overlays a semi-retirement option on top of a job-sharing arrangement.

So – we have an option that costs more, is more difficult to administer, and does not offer most employees something  they really want that is in their interest. And we question why it does not work.

When we are looking at government reform ideas, it is critical that we actually think about whether we can actually implement them and there is really a market for them. It is becoming apparent that there is not a market for phased retirement. It is looking more and more like it is the New Coke of Civil Service reform – an idea that seemed great, but never found a market. Given how hard it is to pass any kind of substantive Civil Service reform, we need to be far more selective in deciding what to pursue. There is so little reform bandwidth available that it should be devoted to better bets than this one.