Human Resource Laws for Federal Employees

When the Going Gets Tough, the Tough Get Educated!

FedHRlaw.org: Providing a clearinghouse of key statutes, regulations, and other information for federal employees.

Here's a compilation of statutes, regulations, rules, and other material relating to the various protections federal employees are entitled to.

Main Topics:

Probationary Period Personnel and Rights

While employees under a probationary period (often one year) don't have the same set of rights as career civil servants who have completed probation, they still have rights against prohibited personnel practices and discrimination.

Among other places, these rights are established by statute in 5 US Code, Part Three. Handy links to it are:

Further, OPM guidance to supervisors implicitly recognizes that probationary period do have some rights. If you read this document on Tips for Supervisors (Tips for Supervisors from OPM ), also note its tone; probation is intended to see how an individual employee works out; it isn't a discussion of mass, willy-nilly discriminatory dismissals.

Here's another good article on this topic: Probationary Rights on JustSecurity.org

Administrative Leave Restrictions

In light of the "Fork in the Road" memo, we thought it useful to look at the legal limits of Administrative Leave.

Not more that 10 days per calendar year

5 USC Section 6329a (b)(1) states "During any calendar year, an agency may place an employee in administrative leave for a period of not more than a total of 10 work days."

Fork in the Road Legality Issues

On 4 February 2025, the Acting Head of OPM, Charles Ezell, sent a memo to agency heads ( "Dubious Legality Memo" ) asserting the legality of the "Fork in the Road" offer. It is about as legal as a spork is useful on a tough cut of meat; in other words, NOT.

In general, the legal citations provided in the memo are weak at best; misleading, false, and a classic case of trying to throw fettuccine at the wall, and if any actually sticks, declaring it to be spaghetti. Let's take a detailed look at just one in particular, the false claim that it is legal to put Federal employees on administrative leave for more than ten work days in a year (see page three, and footnotes 7,8, and 9).

First, and most importantly, 5 USC §6329a (5 USC §6329a in PDF, see also above for links) clearly limits admin leave to 10 days per year. Period, mic drop. No handwaving, regulation, or executive order can change that. But "Mr. Ezell" will try, and fail. His letter states

But binding regulations promulgated by OPM have interpreted that limitation to apply only to a 'management-initiated action to put an employee in administrative leave status, with or without the employee’s consent, for the purpose of conducting an investigation.' The ten-day rule therefore poses no bar to the extended administrative leave contemplated by the deferred resignation program. And the regulations authorize administrative leave when, as here, the 'absence is officially sponsored or sanctioned by the agency.'

Well, it isn't binding for several reasons:
  1. As noted above, regulations can't override a statute.
  2. The regulations he cites ( 5 CFR §630.1403(a)(1)(iv) and 5 CFR §630.1404(a)) can't override a statute and are likely being misused here.
  3. Those regulations, while published in the CFR, are not yet in force and have not yet been adopted by the agencies. See 89 FR 102256 (No.242, Dec. 17, 2024)
  4. Very intriguingly, the recent Federal Register notice finalizing this (see above) from the original proposed rule in 82 FR 32263 (No. 133, July 13, 2017) is radically different in how it addresses going over 10 days; that language (again, in direct conflict with the statute) does not appear at all in the proposal. Typically, the Administrative Procedures Act requires a renotice of significant changes like that from the original proposal.