Employee Rights Regarding Administrative Leave Pending Investigation

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Employees who represent a danger to other employees, the workplace or company operations should be removed pending disciplinary investigation into their alleged misconduct. Placing an employee on a non-disciplinary, paid administrative leave affords the employer the opportunity to conduct a full, fair investigation while minimizing the chances that the employee will commit additional misconduct. Administrative leave does not constitute an adverse action and does not assume guilt on the part of the employee. Employees have certain rights while on leave.

Continuing Responsibilities

  • In the public sector -- where employees have a right to due process before any adverse impacts to employment -- the employer can still place an employee on administrative leave during an investigation. Case law is well-established that administrative leave does not constitute an adverse impact, and the 2nd Circuit Court of Appeals -- in Joseph v. Leavitt, 2006 -- went even further, finding that the terms and conditions of employment do "not include a right to expect that he would be allowed to continue his responsibilities while he was facing serious criminal charges."

Pay and Benefits

  • An employee typically has the right to full base pay and benefits while she is placed on administrative leave pending an investigation. Although some agencies use the term "administrative leave" for an unpaid disciplinary suspension, this represents an entirely different scenario. When the leave is for investigatory purposes, there is no assumption of the findings until after the investigation is over, and consequently, there should be no associated reduction in base pay.

Premiums

  • Just because an employee is entitled to be paid during administrative leave does not necessarily mean he is also entitled to premiums earned for performing a specific duty or working a certain shift. A 2010 arbitrator decision between the United States Postal Service and the American Postal Workers Union found that because the employee did not actually work on a Sunday because of his placement on administrative leave, he would not be eligible to receive a premium for Sunday working. Premium eligibility depends on specific language in the employer's policy or union contract, but employees should not assume they have an automatic right to receive premium payments.

Remaining Available for Work

  • The employer can direct an employee to remain available for work at all times during a period of administrative leave and could even require the employee to complete work while at home, although this is less typical. Generally, an employee on administrative leave pending an investigation will be told to appear for interviews and provide information periodically throughout the process until the investigation is complete and a determination is made about continued employment. The employee does not have the right to refuse to report to work while on administrative leave, so using the time to go on vacation is out of the question.

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