Administrative Leave Pending Investigation

Most people enjoy taking a few days off work. Very few people like their boss telling them not to come to work, especially when that's coupled with an ongoing investigation. Even if you continue to receive your full pay and benefits while on leave, involuntary leave is a nerve-wracking experience.

Involuntary leave, also known as administrative leave, is not regulated by any labor law. But, some state and federal employees have specific protections under agency rules.

Administrative leave usually occurs when an employee is under investigation and removed from the company during the investigation process. Government agencies may authorize administrative leave for other purposes at their discretion.

Types of Administrative Leave

Paid administrative leave is the most common type of administrative leave. The employee takes time off work but receives regular pay, health insurance, and other benefits.

Unpaid administrative leave, or suspension, is more likely to be a punitive measure than a leave of absence. Another reason for unpaid administrative leave is a need for administrative leave where economic issues prevent paying the employee's full salary.

Employees may take voluntary leaves of absence for personal rather than investigative reasons. The Family and Medical Leave Act (FMLA) is one kind of voluntary leave.

Employers might order involuntary leave before an internal investigation or other event where investigators want the employee off the property.

Reasons for Administrative Leave

Employers put employees on paid administrative leave for several reasons. The most common is when there are allegations of misconduct against an employee. During administrative leave, the employer investigates the allegations of misconduct.

Administrative leave pending investigation is frequently seen in law enforcement settings following officer-involved shootings.

Other reasons for a paid administrative leave may include:

• If an employee behaves erratically or violently while on the job, the employer may ask them to take some time off out of concern for other employees. The problem could be unrelated to work (for instance, an issue at home), and the employee could return to work later.
• An outside investigation into compliance or regulatory violations pending the outcome of the investigation.
• Businesses may place workers on administrative leave during corporate restructuring or downsizing.

Employee Rights During a Paid Administrative Leave

Unless paid administrative leave is used as a form of workplace retaliation, employers can legally put their employees on paid administrative leave while they investigate the employee's behavior.

Employees have some legal rights when placed on paid or unpaid administrative leave. If the leave involves alleged misconduct or an investigation, they're entitled to due process and notice of the investigation. Employers must follow fair business practices. Leave cannot be punitive or without cause.

Employment contracts should contain clauses regarding disciplinary action, including paid and unpaid administrative leave. Most union contracts and collective bargaining agreements permit administrative leave during investigations with the oversight of a union representative.

Employee Responsibilities While on Paid Administrative Leave

If your employer puts you on paid leave, the presumption is that you will return to work when the investigation ends. Some employers may expect you to be available to return to work immediately after the investigation ends. Paid leave ensures you will be available and won't need to find other employment while you're not working.

Your human resources department or employee handbook should have instructions about your responsibilities while on administrative leave. If not, or if your business has no formal leave policies, you should consult an attorney regarding your rights.

Whistleblower Protections

If your boss puts you on administrative leave after you report your employer for a workplace violation, you have some legal options. The Whistleblower Protection Act prohibits such adverse employment actions.

In some cases, employers may place whistleblowers on leave out of fear for the whistleblower's safety, particularly if there have been threats from other workers. Employers should not do this without the employee's consent.

Government Employees and Paid Administrative Leave

State and federal employment laws regulate the manner and duration of administrative leave. State employees, such as teachers, receive a full investigation and hearing before removal. They go on administrative leave during that time.

Federal law gives the Executive Office, the Office of Personnel Management (OPM), and each agency great leeway in placing its workers on leave. Some reasons government workers may be placed on leave include:

• Return from active military deployment
• Federal emergency or natural disaster
• Before or after employment-related adverse actions

Get Legal Advice from an Employment Attorney

Paid administrative leave cannot be retaliatory or punitive. If you believe your leave is unlawful or have other legal questions about your leave, contact an experienced employment lawyer in your area.