September 27, 2002

MEMORANDUM FOR HEADS OF DEPARTMENT COMPONENTS AND EXECUTIVE OFFICERS

The purpose of this memorandum is to ensure compliance with Department policy regarding the use of administrative leave, and to establish new procedures regarding the use of such leave. While excused absence, commonly referred to as administrative leave, may be appropriate under various circumstances, components too frequently are placing employees on administrative leave rather than utilizing other more appropriate options. Current Department of Justice policy contained in the Department of Justice Human Resources Order 1200.1, Part 3, Chapter 1, Discipline and Adverse Actions, Section 6 (f) (hereinafter HR Order), and Leave Administration Order 1630.1B (Available on the DOJ Intranet), provide several options for managers, depending upon the circumstances of each case.

For example, managers are often faced with the difficult decision of what action to take with regard to an employee who is the subject of allegations of misconduct, particularly when a formal investigation or management inquiry is initiated, or during the notice period preceding a decision on formal discipline. The HR Order provides that an employee's status during the investigation or notice period will depend upon the nature of the misconduct and the employees' position. Managers must decide whether the continued presence of the employee in the workplace is likely to create a danger to personnel or office operations or otherwise be disruptive, detrimental to morale or good order, or an embarrassment to the employer. Where such a risk does not exist, the employee should remain in the workplace. Where the risk does exist but can reasonably be avoided by temporarily reassigning the employee to an available position, managers should make the effort to do so. Where the risk is present and cannot be avoided by reassignment, or where an appropriate position is not available, an indefinite suspension or enforced leave should be used, where possible, until the resolution of the matter. Where appropriate and allowed by statute or other regulation, components should consider the use of a shortened notice period. As a last resort, the HR Order currently allows managers to consider placing an employee on administrative leave during the pendency of disciplinary of actions, for no more than 10 work days, when component managers determine that such placement is required for the orderly operation of the component.

In the non-disciplinary setting, the Leave Administration Order provides instruction on who may grant administrative leave, and the conditions under which excused absence or administrative leave may be granted. See, DOJ Order 1630.1B, Chapter 1 par. 5, and Chapter 14. The Order also states when it is appropriate to grant court leave, funeral leave, and time off for religious holidays. Id. at Chapters 9, 12-13. Unfortunately, I have been informed of numerous occasions in which components have not complied with the provisions (or spirit) of the Orders discussed herein.

Effective immediately, therefore, no component may place an employee on administrative leave for more than 10 work days, whatever the reason, without the prior approval of the Assistant Attorney General for Administration (AAG/A) or his designee. Heads of Components will retain the authority to approve administrative leave for up to 10 work days, but only when an investigation or management inquiry of alleged misconduct is pending or during the notice period preceding formal discipline. In all other instances, components must adhere to the provisions of the Leave Administration Order 1630.1B. If you are considering the use of administrative leave for less than 10 days in a situation which is not covered by the provisions of the Leave Administration Order, you must obtain the approval of the AAG/A or his designee before granting the leave.

Finally, you are required to report to the Acting AAG/A, no later than 30 calendar days from the date of this memorandum, all cases in which an employee is currently on administrative leave for more than 10 work days. Your report must provide a brief description of the circumstances surrounding each case. Upon review of your report, the Acting AAG/A will determine whether extended administrative leave is warranted in each case reported, and will notify you of his decision. If the Acting AAG/A determines that continued administrative leave is not warranted, you will be required to terminate the administrative leave immediately and place the employee in a more appropriate status.

For general information regarding the administration of leave, you may visit the JMD Personnel Staff website at http://www.usdoj.gov/jmd/ps/research1.htm or view the DOJ Orders mentioned above are available on the DOJ Intranet. If you would like advice and guidance on specific cases, you may contact Debra M. Tomchek, Director of Human Resources, JMD, on (202) 514-6788.

It is my expectation that adherence to the Department of Justice Orders, and compliance with the additional requirements above, will result in more appropriate use of administrative leave. I thank you in advance for your prompt attention to this matter.

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