Attorney Heather White of the Federal Practice Group recently published a column in the Federal Times detailing the potentially serious issues for civilian federal employees found in the 2017 National Defense Authorization Act. Normally, the NDAA applies to military service members and civilians in the Department of Defense, but this most recent iteration features provisions that may apply to other federal workers.
The first point she brings up pertains to the widely-reported new time limit the Act places on the amount of time an employee can spend on paid administrative leave. Normally, paid leave situations, such as investigations for misconduct or being issued a proposed adverse action notice, are completed within 30 days; however, Attorney White notes that employees can sometimes spend more time on leave because the agency cannot decide on the correct action to take, or because an investigation drags on. The new legislation places a 10-day limit on paid administrative leave, but then later makes an exemption for both employees under investigation or on notice of a proposed adverse action.
Second, Attorney White called attention to the new NDAA’s disregard for the notion of due process when it comes to placing negative information in an employee’s Official Personnel File (OPF) if they resign or retire before an adverse action is taken. The OPF is supposed to contain only files which validate employment, record the employee’s career history, military service, and federal benefits choices. However, people who are under investigation or administrative leave for an issue who then decide to retire or resign can now have their proposed action placed in their official file, regardless of whether or not it is sustained.
Attorney White writes: “NDAA Section 1140 would totally upend the requirements of due process and require that the results of any misconduct investigation be placed in a separated employee’s OPF – even though the investigation might be flawed, incomplete or retaliatory. The employee’s response would also be included in the OPF. This is a total subversion of due process as well as a violation of privacy.”
We are thrilled that Attorney White was given the opportunity to contribute to the Federal Times and respond to this controversial piece of law that may lead to consequences of those who are outside of the military and Department of Defense sectors.
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