Administrative Leave

1. Administrative Leave STEPHEN P. POSTALAKIS Blaugrund, Herbert, Kessler, Miller, Myers & Postalakis, Incorporated spp@bhmlaw.com Ohio Association of County Boards Serving People with Developmental Disabilities Personnel Council September 29, 2010

2. Ohio Law – R.C. §124.388 • Under R.C. §124.388(A), the Superintendent may place an employee on administrative leave with pay. • The authority to place an employee on administrative leave with pay does apply to salaried management employees. • Op. Ohio Att’y Gen. No. 2003-13.

3. When is leave with pay appropriate? • Only in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected. • Length of administrative leave with pay is solely at the discretion of the appointing authority. • Duration of leave cannot exceed the length of the situation for which the leave was granted.

4. R.C. §124.388(B) - Administrative leave without pay • Only authorized when an employee has been charged with a violation of law that is punishable as a felony. • Leave cannot exceed two months. • If employee does not plead guilty to or is not found guilty of a felony, then County Board must pay the employee the base rate, plus interest, for the period the employee was on the unpaid administrative leave.

5. Fair Labor Standards Act (FLSA) • FLSA governs the salary basis of an overtime-exempt employee. • If a salaried employee is placed on administrative leave w/pay, salary basis is unaffected. • If placed on admin. leave w/o pay, the issue is whether the employee’s salary basis would be jeopardized.

6. FLSA implications • FLSA permits full-day deductions from pay of exempt employees for unpaid disciplinary suspensions of one or more full days, imposed in good faith for infraction of written workplace conduct rules. • The suspension (reduction in pay) must be imposed in good faith and must be pursuant to a written policy uniformly applied to all employees.

7. FLSA implications • Admin. leave w/o pay is not a suspension; • Leave of absence for safety reasons while the employer or law enforcement conducts an investigation or carries out criminal proceedings. • If the employee is found guilty at the end of the administrative leave w/o pay, he/she may face suspension or termination. • If deemed a suspension, then later discipline (suspension/termination) would be invalidated by SPBR.

8. FLSA implications • If County Board adopts a uniform written policy that requires every employee who violates a written work rule (including commission of an MUI) that also is a violation of law punishable as a felony to be placed on admin. leave w/o pay, then admin. leave w/o pay comports with FLSA.

9. FLSA implications • Department of Labor (DOL) is unlikely to find that the employee’s salaried basis was rendered invalid during the period of the admin. leave w/o pay. • However, under the FLSA, pay can only be deducted for disciplinary reasons. • If County Board adopted a policy described above, an interim “suspension” would occur, which is permissible under R.C. §124.388(B). • DOL may view the admin. leave w/o pay as an initial suspension subject to further discipline, especially since, if the employee is found not guilty, he/she is entitled to full back pay plus interest.

10. Questions? Thanks for attending!