News from the White House: On December 23, 2016, President Obama signed S. 2943, the National Defense Authorization Act for Fiscal Year 2017 (NDAA). This law contained several important changes in the law relevant to federal employees, specifically in three areas: administrative leave, negative paper trails, and buyouts for DoD employees.
NDAA Section 1138 affects administrative leave. Pre-NDAA, agencies could put employees on paid administrative leave for unlimited time periods, which were not logged in many agency timekeeping records. New 5 U.S.C. § 6329a caps administrative leave at 10 work days per calendar year. Agencies now must log administrative leave. Section 1138 creates several new categories of leave to cover certain previously common administrative leave uses. Employees under investigation can be placed on “investigation leave” under new 5 U.S.C. § 6329b for 30-90 work days (which can include enforced telework); further extensions only occur with notice to Congress. 5 U.S.C. § 6329b also creates “notice leave” for employees receiving notices of proposed adverse actions, lasting for the notice/response period for the proposed adverse action. Placement on investigation leave over 70 work days can give rise to a whistleblower reprisal complaint. Finally, 5 U.S.C. § 6329c creates “weather and safety leave” for terrorist attacks and “acts of God” rendering commuting to work unsafe.
In the Signing Statement, President Obama criticized Section 1138 as “substantially limit[ing] Federal agencies’ discretion […] administratively burdensome, raising the risk of harm to the safety of Government employees and the risk of loss or damage to Government properties [and creating] unacceptable counterintelligence and security risks.”.
The amendments on negative paper trails appeared in two sections. NDAA Section 1136 creates new 5 U.S.C. § 3330e, which will require agencies to review the personnel files of current and former federal employees for any negative information prior to selecting these individuals for new jobs. Section 1140 creates new 5 U.S.C. § 3322, which provides that federal employees who quit or retire while under investigation but before the investigation is completed, or who quit or retire while a proposed adverse action is pending against them but has not yet been decided. can have negative notations put into their Official Personnel Folder (OPF) even after departure if the investigation results are negative. Subject employees are entitled to notice and a chance to respond, and the placement of the negative record into the OPF is appealable to the Merit Systems Protection Board.
Finally, NDAA Section 1107 temporarily allows the Department of Defense to increase Voluntary Separation Incentive Payments (i.e. VERA/VSIP payments or “buyouts”) from $25,000 to $40,000, through September 30, 2018.
If you are federal employee and wish to discuss how the NDAA impacts your rights, contact Passman & Kaplan, P.C. to request an initial consultation.