Public employers use administrative leave to remove an employee from the workplace. Usually this happens when an investigation into the employee’s misconduct is pending. A common example is a situation where the employer is concerned that the employee is harassing or threatening coworkers and wants to ensure there are no further issues while they are investigating.
While on administrative leave an employee should receive their full pay and benefits, including accruals of vacation, and sick leave, health benefits, and retirement contributions. This is because due process requires public employers to provide employees with the charges against them and the opportunity to respond to those charges before taking away job related benefits. As administrative leave is usually implemented long before the employer has determined what charges, if any, will be brought against the employee, all benefits should remain in place while an employee is on administrative leave.
During administrative leave employees are still considered on duty so they must be available during their regularly scheduled workday. In fact, many employers require employees on administrative leave to call in to their supervisor each morning to confirm they are available to work.
Being placed on administrative leave can be a stressful and confusing situation for an employee. Many employees want to challenge the reason for being placed on administrative leave because it can seem like their employer is taking an adverse employment action against them. Coworkers may even believe the employee has already been fired, thereby harming the employees reputation in the workplace.
For many years courts routinely held that putting an employee on paid administrative leave could not constitute an adverse employment action to give rise to a discrimination or retaliation claim. However, whether or not administrative leave is an adverse employment action is no longer clear.
In Dahlia v. Rodriguez, the Ninth Circuit held that paid administrative leave could constitute an adverse employment action when considering the totality of the circumstances. The Court found that Dahlia’s placement on administrative leave appeared reasonably likely to deter employees from engaging in protected activity because Dahlia’s administrative leave had prevented Dahlia from taking the sergeant’s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience.
More recently in Whitehall v. County of San Bernardino the Court of Appeal also held that the imposition of an administrative leave may constitute an adverse employment action. Whitehall was placed on administrative leave in retaliation for her reporting the juvenile court was manipulating evidence in a dependency case. The Court of Appeal found that the County placing her on administrative leave with the intent to terminate her in retaliation for her reporting could constitute an adverse employment action.
If an employer has taken the step to place an employee on administrative leave it indicates that they are taking the situation seriously. It is likely that the employer will be conducting an investigation which could lead to disciplinary action, including termination. While being on administrative leave is usually a waiting game employees should consider seeking representation when they are initially placed on administrative leave.