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[House Report 114-520]
[From the U.S. Government Publishing Office]

114th Congress   }                                       {      Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                       {     114-520

======================================================================

 
                    ADMINISTRATIVE LEAVE REFORM ACT

                                _______
                                

 April 25, 2016.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Chaffetz, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 4359]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 4359) to amend title 5, United 
States Code, to provide that Federal employees may not be 
placed on administrative leave for more than 14 days during any 
year for misconduct or poor performance, and for other 
purposes, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     3
Section-by-Section...............................................     5
Explanation of Amendments........................................     6
Committee Consideration..........................................     6
Roll Call Votes..................................................     6
Application of Law to the Legislative Branch.....................     6
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     6
Statement of General Performance Goals and Objectives............     6
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     7
Federal Advisory Committee Act...................................     7
Unfunded Mandate Statement.......................................     7
Earmark Identification...........................................     7
Committee Estimate...............................................     7
Budget Authority and Congressional Budget Office Cost Estimate...     7
Changes in Existing Law Made by the Bill, as Reported............     8

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Administrative Leave Reform Act''.

SEC. 2. LIMITATION ON ADMINISTRATIVE LEAVE.

  (a) In General.--Subchapter II of chapter 63 of title 5, United 
States Code, is amended by adding at the end the following:

``Sec. 6330. Limitation on administrative leave

  ``(a) In General.--During any calendar year, an employee may not be 
placed on administrative leave, or any other paid non-duty status 
without charge to leave, for more than 14 total days for reasons 
relating to misconduct or performance. After an employee has been 
placed on administrative leave for 14 days, the employing agency shall 
return the employee to duty status, utilizing telework if available, 
and assign the employee to duties if such employee is not a threat to 
safety, the agency mission, or Government property.
  ``(b) Extended Administrative Leave.--
          ``(1) In general.--If an agency head determines that an 
        employee is a threat to safety, the agency mission, or 
        Government property and upon the expiration of the 14-day 
        period described in subsection (a), an agency head may place 
        the employee on extended administrative leave for additional 
        periods of not more than 30 days each.
          ``(2) Report.--For any additional period of 30 days granted 
        to the employee after the initial 30-day extension, the agency 
        head shall submit to the Committee on Oversight and Government 
        Reform in the House of Representatives, the agency's 
        authorizing committees of jurisdiction of the House of 
        Representatives and the Senate, and the Committee on Homeland 
        Security and Governmental Affairs of the Senate a report, not 
        later than 5 business days after granting the additional 
        period, containing--
                  ``(A) the name, title, position, office or agency 
                subcomponent, job series, pay grade, and salary of the 
                employee on administrative leave;
                  ``(B) a description of the work duties of the 
                employee;
                  ``(C) the reason the employee is on administrative 
                leave;
                  ``(D) an explanation as to why the employee is a 
                threat to safety, the agency mission, or Government 
                property;
                  ``(E) an explanation as to why the employee is not 
                able to telework or be reassigned to another position 
                within the agency;
                  ``(F) in the case of a pending related investigation 
                of the employee--
                          ``(i) the status of such investigation; and
                          ``(ii) the certification described in 
                        subsection (c)(1); and
                  ``(G) in the case of a completed related 
                investigation of the employee--
                          ``(i) the results of such investigation; and
                          ``(ii) the reason that the employee remains 
                        on administrative leave.
  ``(c) Extension Pending Related Investigation.--
          ``(1) In general.--If an employee is under a related 
        investigation by an investigative entity at the time an 
        additional period described under subsection (b)(2) is granted 
        and, in the opinion of the investigative entity, additional 
        time is needed to complete the investigation, such entity shall 
        certify to the applicable agency that such additional time is 
        needed and include in the certification an estimate of the 
        length of such additional time.
          ``(2) Limitation.--The head of an agency may not grant an 
        additional period of administrative leave described under 
        subsection (b)(2) to an employee on or after the date that is 
        30 days after the completion of a related investigation by an 
        investigative entity.
  ``(d) Definitions.--In this section, the following definitions apply:
          ``(1) Investigative entity.--The term `investigative entity' 
        means an internal investigative unit of the agency granting 
        administrative leave, the Office of Inspector General, the 
        Office of the Attorney General, or the Office of Special 
        Counsel.
          ``(2) Related investigation.--The term `related 
        investigation' means an investigation that pertains to the 
        underlying reasons an employee was placed on administrative 
        leave.''.
  (b) Effective Date.--The amendment made by subsection (a) shall begin 
to apply 90 days after the date of enactment of this Act.
  (c) Rules of Construction.--Nothing in the amendment made by 
subsection (a) shall be construed to--
          (1) supersede the provisions of chapter 75 of title 5, United 
        States Code; or
          (2) limit the number of days that an employee may be placed 
        on administrative leave, or any other paid non-duty status 
        without charge to leave, for reasons unrelated to misconduct or 
        performance.
  (d) Clerical Amendment.--The table of sections for subchapter II of 
chapter 63 of title 5, United States Code, is amended by adding after 
the item relating to section 6329 the following new item:

``6330. Limitation on administrative leave.''.

                     Committee Statement and Views

                          PURPOSE AND SUMMARY

    H.R. 4359, the Administrative Leave Reform Act brings 
accountability to the administrative leave process within 
Executive branch agencies. Currently, there is little 
uniformity across the federal government in how administrative 
leave is used. This legislation creates a standard process for 
the use of administrative leave in cases of misconduct and poor 
performance, which will help curb the overuse of administrative 
leave within the federal government.
    In general, the legislation creates a 14-day cap on 
administrative leave when employees are being placed on 
administrative leave for reasons related to misconduct or poor 
performance, except under certain circumstances.
    In these exceptional circumstances, the legislation permits 
agencies to make 30-day extensions of administrative leave 
beyond the 14-day limit. For each extension that an agency 
makes beyond the initial 30-day extension, the agency must 
provide a report to the appropriate congressional committees 
containing details about the individual, including name, title, 
position, salary, and duties, an explanation for why the 
individual is on administrative leave, why the individual could 
not telework or be reassigned, and the status of any pending 
investigation. Further, the entity conducting the investigation 
must certify within the report that the investigation is 
ongoing and requires additional time. Additionally, no 
individual will be eligible for additional extensions of 
administrative leave more than 30 days after the completion of 
the last investigation into the individual.

                  BACKGROUND AND NEED FOR LEGISLATION

    The Office of Personnel Management (OPM) defines 
administrative leave, or an excused absence, as ``an 
administratively authorized absence from duty without loss of 
pay or charge to leave.''\1\ OPM further notes that 
``[a]lthough administrative leave is not expressly referenced 
in title 5, the authority to grant an excused absence derives 
from the inherent authority for heads of agencies to prescribe 
regulations for the government of their organizations.''\2\
---------------------------------------------------------------------------
    \1\Office of Personnel Mgmt., Pay & Leave, available at https://
www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-
sheets/administrative-leave/ (last visited March 9, 2016).
    \2\Id. OPM references 5 U.S.C. 301-302 in particular.
---------------------------------------------------------------------------
    While OPM offers some guidance and examples for the use of 
administrative leave, there is no defining statute or 
regulation clearly delineating the proper use of administrative 
leave. This has resulted in varying policies across agencies.
    The Government Accountability Office (GAO) highlighted the 
inconsistent use of administrative leave across the federal 
government in a 2014 report. GAO found, ``agency policies and 
guidance contained several common activities for granting paid 
administrative leave . . . However, variations exist, depending 
on agency mission and how leave is categorized in agency 
policy.''\3\
---------------------------------------------------------------------------
    \3\Gov't Accountability Office, Federal Paid Administrative Leave 
(October 2014) (GAO-15-79).
---------------------------------------------------------------------------
    OPM's recent guidance makes clear that administrative leave 
is not intended to be a permanent solution in cases of 
performance and misconduct issues. Rather, administrative leave 
should be a temporary measure for agencies to utilize in 
limited, brief circumstances. When administrative leave is used 
in relation to poor performance or misconduct prior to an 
adverse action, OPM advises that: ``[w]here absences are for 
longer than brief periods, administrative leave is generally 
inappropriate.''\4\ OPM's guidance also notes that when placing 
employees on administrative leave for misconduct or performance 
issues prior to taking adverse action, ``[a]n agency should 
monitor the situation and move towards longer-term actions when 
it is possible, appropriate, and prudent to do so.''\5\
---------------------------------------------------------------------------
    \4\Office of Personnel Mgmt., Pay & Leave, available at https://
www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-
sheets/administrative-leave/ (last visited March 9, 2016).
    \5\Id.
---------------------------------------------------------------------------
    Despite these intentions, GAO found that some agencies have 
placed employees on administrative leave for more than a year. 
In its 2014 report, GAO found that 263 employees within the 
federal government were on administrative leave between one and 
three years during the 2011-2013 period. The report also 
indicates that 538 people were on administrative leave for nine 
months or more. GAO's report provides further details of agency 
use of administrative leave.\6\ GAO also found that the most 
common reason that agencies used large amounts of 
administrative leave was for personnel matters, such as 
investigations of alleged misconduct or criminal actions.
---------------------------------------------------------------------------
    \6\Gov't Accountability Office, Federal Paid Administrative Leave 
(October 2014) (GAO-15-79).
---------------------------------------------------------------------------
    The Committee on Oversight and Government Reform has 
investigated instances where agencies have placed employees on 
administrative leave for extended periods of time. For example, 
the Environmental Protection Agency placed two employees on 
administrative leave for 1.5 years and 10 months, respectively, 
pending the completion of Inspector General and Department of 
Justice investigations, which found that the ``employees spent 
approximately 1 to 6 hours a day viewing and downloading 
pornography.''\7\
---------------------------------------------------------------------------
    \7\Environmental Protection Agency Office of the Inspector General, 
FYI 2015 EPA Management Challenges (May 28, 2014) (15-N-0164).
---------------------------------------------------------------------------
    In addition, the National Archives Inspector General was 
placed on administrative leave for over two years while 
allegations that he made sexually suggestive and racially 
offensive comments and altered audits were being 
investigated.\8\
---------------------------------------------------------------------------
    \8\Lisa Rein, Embattled National Archives IG to Retire after Probe 
Finds Misconduct, WASH. POST, Aug. 4, 2014, https://
www.washingtonpost.com/news/federal-eye/wp/2014/08/04/embattled-
national-archives-ig-to-retire-after-probe-finds-misconduct/.
---------------------------------------------------------------------------
    While administrative leave offers agencies flexibility to 
address instances where there is a need for a short-term 
absence or to wait for the completion of an investigation by 
the Inspector General, it was never meant to be used as an 
option when agencies do not know how or are reluctant to take 
adverse action against employees.
    When agencies overuse administrative leave, it costs the 
American taxpayers. While in many cases, some use of 
administrative leave is necessary and appropriate, some 
agencies use administrative leave to avoid dealing with hard 
problems, or to allow a problem to be swept under the rug. By 
allowing employees to remain on administrative leave 
indefinitely, agencies are effectively asking taxpayers to pay 
people not to work. The Committee believes that this is 
unacceptable.
    To address this problem, H.R. 4359 works to curb agency 
overuse of administrative leave. Specifically, the bill creates 
a clear statutory intent that administrative leave should not 
be a permanent duty status. Second, it requires agencies to 
almost immediately begin considering how to handle individuals 
placed on administrative leave. Third, it increases 
accountability within agencies by requiring agency heads to 
approve extensions of its use beyond 14 days, and after 44 
days, to certify to Congress the specific reason that an 
employee must remain on administrative leave. Fourth, it will 
prohibit the indefinite use of administrative leave. Under this 
bill, agencies can move forward with an indefinite number of 
extensions to allow for the completion of investigations into 
possible misconduct or performance problems. However, once 
those investigations are completed, agencies must take action 
to remove the employee from administrative leave in short 
order.
    Prior to House consideration, the Committee plans to make 
further refinements to the legislation based on comments 
received from the Council of the Inspectors General on 
Integrity and Efficiency.

                          LEGISLATIVE HISTORY

    H.R. 4359, the Administrative Leave Reform Act, was 
introduced by Congressman Jason Chaffetz (R-UT) on January 11, 
2016, and referred to the Committee on Oversight and Government 
Reform.
    On March 1, 2016, the Committee on Oversight and Government 
Reform ordered H.R. 4359 favorably reported, with an amendment 
offered by Congressman Stephen Lynch (D-MA), by voice vote.

                           Section-by-Section

Section 1. Short title

    Designates the short title of the legislation as the 
``Administrative Leave Reform Act.''

Section 2. Limitation on administrative leave

    Amends title 5 of United States Code to require that an 
employee may not be placed on administrative leave, or other 
paid non-duty status without charging leave, for more than 14 
total days for reasons relating to misconduct or performance.
    Provides the employing agency with the ability to extend an 
employee's time on administrative leave for misconduct or poor 
performance in increments of 30 days.
    For each 30-day extension after the first 30-day extension, 
the agency must provide: a report to Congress that explains the 
reasons this employee remains on administrative leave; the 
reasons the employee cannot telework or be reassigned to 
another position; the status of any investigation regarding the 
employee with an estimate of the time needed to complete the 
investigation; and a description of the employee's employment 
information and work responsibilities.
    If the agency grants an extension of administrative leave 
(beyond an original 30-day extension) to accommodate the need 
for additional time to complete an investigation, then the 
investigating entity must certify that additional time is 
needed to complete the investigation.
    The agency head may not grant an additional period of 
administrative leave to an employee on or after the date that 
is 30 days after a completed investigation.
    Establishes that the bill will take effect 90 days after 
the date of enactment.
    This bill shall not be construed to supersede the 
provisions of chapter 75 of title 5, United States Code, or 
limit the number of days an employee may be placed on 
administrative leave, or other paid non-duty status without 
charge to leave, for reasons unrelated to misconduct or 
performance.

                       Explanation of Amendments

    During Full Committee consideration of the bill, 
Congressman Stephen Lynch (D-MA) offered an amendment in the 
nature of a substitute to the bill, which is reflected in the 
above section-by-section. The Lynch amendment was adopted by 
voice vote.

                        Committee Consideration

    On March 1, 2016, the Committee met in open session and 
ordered reported favorably the bill, H.R. 4359, as amended, by 
voice vote, a quorum being present.

                            Roll Call Votes

    No roll call votes were requested or conducted during Full 
Committee consideration of H.R. 4359.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill amends title 5, United States Code, to provide that 
Federal employees may not be placed on administrative leave for 
more than 14 days during any year for misconduct or poor 
performance. As such, it does not relate to employment or 
access to public services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal or objective of the bill is to amend title 5, United 
States Code, to provide that Federal employees may not be 
placed on administrative leave for more than 14 days during any 
year for misconduct or poor performance.

                    Duplication of Federal Programs

    No provision of this bill establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that enacting this bill does not 
direct the completion of any specific rule makings within the 
meaning of 5 U.S.C. 551. However, the Director of the Office of 
Management and Budget is directed to issue guidelines.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(2)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for this bill from the Director of 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 24, 2016.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
 House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4359, the 
Administrative Leave Reform Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dan Ready.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 4359--Administrative Leave Reform Act

    H.R. 4359 would limit to 14 days the amount of time an 
agency could place an employee on administrative leave while 
investigating employee misconduct or performance. Extensions to 
the 14-day period would be allowable under H.R. 4359, but 
agencies granting such extensions would have to submit a report 
to certain Congressional committees detailing their rationale.
    The limitation on the length of administrative leave would 
not change the amount agencies pay to employees under 
investigation and CBO does not expect the number of reports to 
Congressional committees or their costs to be significant. 
Therefore, CBO estimates that enacting H.R. 4359 would have no 
significant budgetary effect.
    Because enacting H.R. 4359 would not affect direct spending 
or revenues, pay-as-you-go procedures do not apply. CBO 
estimates that enacting H.R. 4359 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year period beginning in 2027.
    H.R. 4359 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Dan Ready. The 
estimate was approved by Theresa Gullo, Assistant Director for 
Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *

PART III--EMPLOYEES

           *       *       *       *       *       *       *

SUBPART E--ATTENDANCE AND LEAVE

           *       *       *       *       *       *       *

                           CHAPTER 63--LEAVE

                   SUBCHAPTER I--ANNUAL AND SICK LEAVE

Sec.
6301. Definitions.
     * * * * * * *

                     SUBCHAPTER II--OTHER PAID LEAVE

     * * * * * * *
6330. Limitation on administrative leave.

           *       *       *       *       *       *       *

SUBCHAPTER II--OTHER PAID LEAVE

           *       *       *       *       *       *       *

Sec. 6330. Limitation on administrative leave

  (a) In General.--During any calendar year, an employee may 
not be placed on administrative leave, or any other paid non-
duty status without charge to leave, for more than 14 total 
days for reasons relating to misconduct or performance. After 
an employee has been placed on administrative leave for 14 
days, the employing agency shall return the employee to duty 
status, utilizing telework if available, and assign the 
employee to duties if such employee is not a threat to safety, 
the agency mission, or Government property.
  (b) Extended Administrative Leave.--
          (1) In general.--If an agency head determines that an 
        employee is a threat to safety, the agency mission, or 
        Government property and upon the expiration of the 14-
        day period described in subsection (a), an agency head 
        may place the employee on extended administrative leave 
        for additional periods of not more than 30 days each.
          (2) Report.--For any additional period of 30 days 
        granted to the employee after the initial 30-day 
        extension, the agency head shall submit to the 
        Committee on Oversight and Government Reform in the 
        House of Representatives, the agency's authorizing 
        committees of jurisdiction of the House of 
        Representatives and the Senate, and the Committee on 
        Homeland Security and Governmental Affairs of the 
        Senate a report, not later than 5 business days after 
        granting the additional period, containing--
                  (A) the name, title, position, office or 
                agency subcomponent, job series, pay grade, and 
                salary of the employee on administrative leave;
                  (B) a description of the work duties of the 
                employee;
                  (C) the reason the employee is on 
                administrative leave;
                  (D) an explanation as to why the employee is 
                a threat to safety, the agency mission, or 
                Government property;
                  (E) an explanation as to why the employee is 
                not able to telework or be reassigned to 
                another position within the agency;
                  (F) in the case of a pending related 
                investigation of the employee--
                          (i) the status of such investigation; 
                        and
                          (ii) the certification described in 
                        subsection (c)(1); and
                  (G) in the case of a completed related 
                investigation of the employee--
                          (i) the results of such 
                        investigation; and
                          (ii) the reason that the employee 
                        remains on administrative leave.
  (c) Extension Pending Related Investigation.--
          (1) In general.--If an employee is under a related 
        investigation by an investigative entity at the time an 
        additional period described under subsection (b)(2) is 
        granted and, in the opinion of the investigative 
        entity, additional time is needed to complete the 
        investigation, such entity shall certify to the 
        applicable agency that such additional time is needed 
        and include in the certification an estimate of the 
        length of such additional time.
          (2) Limitation.--The head of an agency may not grant 
        an additional period of administrative leave described 
        under subsection (b)(2) to an employee on or after the 
        date that is 30 days after the completion of a related 
        investigation by an investigative entity.
  (d) Definitions.--In this section, the following definitions 
apply:
          (1) Investigative entity.--The term ``investigative 
        entity'' means an internal investigative unit of the 
        agency granting administrative leave, the Office of 
        Inspector General, the Office of the Attorney General, 
        or the Office of Special Counsel.
          (2) Related investigation.--The term ``related 
        investigation'' means an investigation that pertains to 
        the underlying reasons an employee was placed on 
        administrative leave.

           *       *       *       *       *       *       *

                                  [all]
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