It’s Not Too Late to Make a Difference

By William Wiley, July 25, 2017

In last week’s newsletter, we described OPM’s lack of concern for your life and the lives of those with whom you work. It has demonstrated this insensitivity by issuing a proposed rule that would effectively require that an agency keep a fired employee in the workplace for up to three weeks after the decision to fire him has been made. Stressed out people sometimes become violent. We cannot ignore the fact that individuals who are fired are under significant stress. Requiring fired civil servants to continue to work after their removals have been proposed and even decided is an unnecessarily dangerous policy.

You can do something about this. Whoever you are wherever you are, if you can access an email account, you can tell OPM what you think: pay-leave-policy@opm.gov.  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at  https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.  You have until August 14 to act to save your life.

Here’s our latest FELTG comment, if you’re looking for a tone and format:

Dear OPM-

We have previously commented that this proposed rule should be modified so that agencies are encouraged to use Notice Leave in every case in which an employee’s removal is proposed, and that the regulations should be rewritten so that it is easy for this to be done. As drafted in the proposal, it would be exceedingly difficult for an agency to implement Notice Leave. The following rationale is in further support of my previous comment.

When drafting the Civil Service Reform Act of 1978, Congress expressed no intent that an employee whose removal is proposed be retained in a work status during the notice period. In fact, when considering the requirements of the law, it makes no sense. From the day that the supervisor notifies the employee that his removal is being proposed for misconduct, the employee need be given no more than seven days to respond. 5 USC 7513(b)(2).  That means that the deciding official can issue a decision on the proposed removal as early as day eight, after the close of the minimum response period.

It makes absolutely no sense that an agency be required to keep an employee in the workplace after a final decision has been made to fire him. These are individuals who have engaged in misconduct so bad that they deserve to be terminated. Or, they have such significant medical infirmities that they cannot perform the essential functions of their position. It defies any logic that individuals like this should be directed to report to work for 22 days after the decision has been made that they should not be employed. So why did Congress mandate a 30-day notice period if it makes no sense to keep someone in the workplace after the decision has been made to fire them?

I know the answer. And I know it because I am old. I was in the business of federal employment law when this legislation was being developed and debated in 1978. I heard Scotty Campbell, former Civil Service Commissioner and driving force behind the structure of the Reform Act, say that the extra 30 days of pay was to ease the transition of the employee out of government employment; i.e., to give him a chance to find another job. In other words, it was a way of providing something akin to severance pay to the employee as he was being removed. The purpose of the notice period is to provide money to the employee, not to try to get work from the employee.

The law says, “at least 30 days’ advance written notice.” Had Congress intended that the notice period be completed while the employee was in the workplace after the decision was made to fire him, it would have said, “at least 30 days’ advance written notice, during which the employee will remain in the workplace.” It is my opinion that Congress did not add this language because it could not conceive that anyone would think it a good idea to retain a fired employee in a federal worksite for three weeks after the decision had been made to fire him.

Apparently, Congress was mistaken.

The draft rule should be rewritten to empower front line managers to protect the federal workplace once an employee’s removal has been proposed. The rule should be amended in part as follows:

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.

Respectfully submitted for your consideration. Wiley@FELTG.com