When to Use the New Notice Leave Law

By William Wiley, April 19, 2017

Questions, we get wonderful questions. This one came after a recent webinar we presented in which we encouraged participants to get the employee out of the workplace once removal is proposed. First, our participant’s question:

The presenter, Mr. Wiley, made a sweeping statement yesterday that employees should be put on “notice” leave when issued a proposed removal.  The statement was very emphatic and left the impression that this should be a routine practice.  However, in researching the issue, the following is required to place employee on “notice” leave, essentially describing a situation where the employee is believed to pose a threat.  Can you forward a question to him to better explain how the routine use of “notice” leave is warranted in view of the strict criteria described in Administrative Leave Act of 2016. P.L. 114-328?

And here’s our always-helpful and enlightening (to us) FELTG response:

In response to the question about using Notice Leave, yes, in our opinion it should be a routine practice whenever an employee is put on notice that removal has been proposed. It is easy to reach the reasonable conclusion that an individual whose removal has been proposed is going to be under a lot of stress and be focused on his own well-being. Individuals in situations like that sometimes react in dangerous unexpected ways. News reports of workplace violence often state that the employee who was violent was previously seen as mild-mannered with no obvious psychological problems. According to the Bureau of Labor Statistics, about two people per workday are killed in our country by a co-worker.

Separately, it is reasonable to conclude that an individual who is confronted with the imminent loss of employment would consider ways to gain financially from his remaining days as a federal employee. Perhaps there is data in the agency’s computer system that, if downloaded, would be of value to criminals. Maybe there are office supplies and equipment that could be the basis for the start of self-employment, or simply for sale on the web or at a garage sale. I’ve even seen individuals who have been told that their removal is proposed suddenly suffer a job injury, thereby entitling them to workers’ compensation payments.

Finally, keep in mind that the proposing supervisor has said in the notice letter why the individual should no longer remain as a federal employee; e.g., there’s a loss of trust or he has failed his performance improvement plan. Keeping someone like that in the worksite doing his job after the supervisor has concluded that the employee can’t do his job makes no sense and might undermine some of the statements made in support of the removal penalty in the Douglas Factor analysis.

Once we grasp these disadvantages to allowing employees continued access to a federal workplace when their removal is proposed, it’s a straightforward manner to conclude that one or more of the criteria for enforcing Notice Leave has been met. At a minimum, we can categorically conclude in a removal action that keeping the individual in the workplace after his removal is proposed “jeopardizes the legitimate government interests” of maintaining a safe workplace, one of the four statutory criteria.

Separately, I consider the following:

• The employee cannot directly challenge the placement on 30 days of Notice Leave. Why would I not do it?
• Even if somehow after the fact a decision was made that the employee should not have been placed on Notice Leave, no harm – no foul. That finding, were it to occur, would not cause the removal to be set aside as it is not a harmful error. In fact, I can think of no remedy.
• This isn’t some bureaucratic check-the-box issue. This can be a life and death situation. If I place the employee on Notice Leave and remove him from the workplace, I may have prevented some pretty bad things from happening. If I do not place the employee on Notice Leave, although it does not happen often, he just might kill someone.

I have absolutely no problem selecting the option that possibly could save a life. The law is worded to allow me to exercise my judgment to do that, and that’s what I would advise anyone in a proposed removal situation. To do otherwise would be short-sighted. And, deadly.

Hope this helps. Wiley@FELTG.com