Union challenges proposed rule on employee suspensions

The Office of Personnel Management says its proposed regulation on indefinite employee suspensions would clarify existing rules, but the National Treasury Employees Union says it actually would expand agencies' power to suspend workers with little notice. "Indefinite suspensions are a powerful agency tool that can have a profound adverse impact on employees," NTEU president Colleen Kelley wrote in Nov. 17 comments to OPM on the proposed regulation. "The placement of employees on leave without pay for extended periods of time for alleged misconduct is extremely harsh and must be reserved for the investigation of the most serious offenses..."

OPM's regulation would make two changes. First, it would clarify that agencies are not required to give employees 30 days' advance written notice of an indefinite suspension if the agency has "reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment may be imposed." In other circumstances, 30 days still is required.

Second, the regulation states that "reasonable cause" is not the standard required to impose indefinite suspensions for lesser offenses. In those cases, reasonable cause is required only if agencies shorten the notification period.

"Indefinite suspensions are not restricted to occasions when employees have been indicted for a criminal offense," the agency wrote in the Sept. 18 Federal Register notice. "Indefinite suspensions may also be warranted when an employee is under investigation for other serious misconduct that, if proven to be true, would warrant removal."

Examples listed in the proposed rule include behavior that poses a risk to life, health, safety, or government or public property; actions that threaten national security or privacy rights; or behavior that hinders "the effective accomplishment of the agency's operations."

"The scope of these potential grounds is breathtaking," Kelley wrote. "Given the broad language and extraordinary vagueness of the categories, any misconduct could be grounds for indefinite suspension."

The regulation cites a 2007 U.S. Court of Appeals for the Federal Circuit ruling in Perez v. Department of Justice, which determined that 30-day notifications were not required in circumstances where agencies have strong reason to believe the criminal charges pending against an employee are true. The court argued that employees are protected from arbitrary indefinite suspensions because such actions would not "promote the efficiency of the service."

But Kelley noted strong dissenting opinion in Perez, saying the case was not a solid enough basis for the regulation. She also said no other court decisions supported the proposed rule. Kelley cited other federal and District of Columbia circuit court cases that required agencies seeking to impose indefinite suspensions to have reasonable cause to believe allegations against employees are true -- even in the absence of criminal charges.

"It is unclear exactly what OPM contemplates that the agency would be required to prove by a preponderance of the evidence, should its [decision to suspend an employee] be challenged," she wrote.