Common Questions Regarding Administrative Leave During a Workplace Investigation

By Bob Butler, WASB Counsel, Malina Piontek, AWSA Retained Counsel and Brian Goodman, Attorney, Boardman & Clark

The term “administrative leave” is often used in the employment setting, particularly in the context of high-stakes workplace investigations. So, what is administrative leave and when should an employer consider it? Could the employer keep the employee in the employee’s present assignment and/or reassign the employee instead of placing the employee on leave?

This article is designed to answer frequently asked questions on what administrative leave is, when it could be considered, and the potential ramifications of placing someone on administrative leave. 

What is administrative leave in its most basic sense?
Administrative leave is a form of interim action that an employer may take during an investigation of potential employee misconduct that is egregious in nature or puts another person at risk of harm or there are specific concerns about threats of retaliation against a complainant. Think allegations of sexual harassment, embezzlement of public funds, or staff to student assault.  Sometimes administrative leave is also used after the conclusion of an investigation into misconduct that results in a recommendation to terminate the employee’s contract. In those situations, the employee remains on administrative leave pending termination proceedings by the school board. This article will focus on factors to consider relating to administrative leave during the investigation of employee misconduct.  Placing an employee on administrative leave is a potentially serious action and should be thoroughly analyzed by the employer with legal counsel prior to its implementation.

What general types of administrative leave are used? 
The two most general types of administrative leave are paid and unpaid administrative leave. Paid administrative leave is used most commonly when there is a need for a high-stakes personnel investigation. It is rare for an employer to put an administrator on unpaid administrative leave, particularly at the onset of an investigation, because unpaid leave may raise due process issues and the risk of owing back pay. (See Could unpaid administrative leave be considered a form of discipline? below.)

What are the core factors weighing in favor of an administrative leave? 
The core factors will be student, staff, or visitor safety, the ability to access and preserve untainted evidence, the seriousness of the allegations, the impact on workplace culture, operational functions, maintaining the integrity of the investigation, and productivity if the employee remains in the workplace.  While not legal issues, stakeholder confidence and district response to stakeholder and media inquiries are often also considered when deciding whether or not to place an employee on administrative leave. 

Is there an interim step that an employer could use instead of administrative leave?
Instead of placing an employee on administrative leave, an employer may consider leaving the employee in the employee’s regular assignment or reassigning the employee while the investigation takes place depending upon the nature of the allegations and the effect the employee’s presence in the working environment (in person or virtual) has on the ability to conduct an impartial and thorough investigation. Other options include working remotely, working from another location within the district, and directing the employee not to have contact with the person reporting, or complaining about, misconduct. If these alternative options are not successful, the employer could always use paid administrative leave as a next step. If an employee violates a directive regarding these alternative options, that might also be cause for discipline up to and including termination depending on the situation.

What are the core factors weighing against an administrative leave? 
Core factors weighing against placing an employee on administrative leave are the potential harm to the employee’s reputation, the presumption of innocence of the employee placed on leave, the impact on workplace culture, operational functions, productivity if the employee is not present in the workplace, the cost of the leave if a replacement is needed during the leave, and negative publicity (i.e., the leave and/or the investigation making the news, and potentially harming the employee’s reputation).  

If the employer keeps the employee in the employee’s regular assignment, what are factors to consider? 
The core factors include the interactions between the employee and the complainant(s), the ability to access and preserve untainted evidence, the seriousness of the allegations, the presumed innocence of the accused and the impact on workplace culture, operational functions, and productivity if the employee is present in the workplace.  While not legal considerations, stakeholder confidence and district response to stakeholder and media inquiries are often also considered at this stage. 

If the employer reassigns the employee or has the employee work in a virtual setting, what are factors to consider?
The threshold determination is whether the employee can successfully perform their job duties in a virtual setting.  From there, the analysis is similar to keeping the employee in the employee’s regular assignment.  The factors to consider arethe interactions between the employee and the complainant(s), the ability to access and preserve untainted evidence, the seriousness of the allegations, the presumed innocence of the accused and the impact on workplace culture, operational functions and productivity if the employee is present even if in a virtual setting. 

When the employee is allowed to continue working, several logistical factors are important and  will vary depending upon the specific job duties of the employee. These may include, but are not limited to, access to district records, computers, and facilities.

Some courts have found reassignment or demotion to be a form of discipline. (Please seeHead v. Chicago Sch. Reform Bd. of Trustees,225 F.3d 794 (7th Cir. 2000); and Employee Rights when Involuntarily Reassigned,WASB Legal Note Fall 2001.)  A reassignment or demotion that affects pay may also be subject to the district’s grievance procedure as a form of discipline.Wis. Stats. 66.0509(1m). The definition of discipline in the district’s grievance procedure will likely be a key factor as to whether a reassignment or demotion is subject to the district’s grievance procedure.

Could paid administrative leave be considered a form of discipline? 
In some situations, involuntary paid administrative leave may be deemed a form of discipline if it substantially impacts the employee’s future employment opportunities.  See, Swick v. City of Chicago, 11 F.3d 85 (7th Cir. 1993).  This may also be covered by the statutory grievance procedure as a form of discipline.Wis. Stats. 66.0509(1m). The definition of discipline in the district’s grievance procedure will likely be a key factor as to whether a paid administrative leave is subject to the district’s grievance procedure. 

Could unpaid administrative leave be considered a form of discipline?
Yes.  Unpaid administrative leave also creates potential issues with respect to back pay with interest if the employee is reinstated.  This consequence must be balanced with the political realities of paying an employee when that employee has been accused of a serious employment offense, or of a crime. See Suspension without Pay – An Option when Investigating Employee Misconduct,WASB Legal Comment June 1999.PDF. An employer must also provide the employee with an opportunity for a meeting prior to moving the employee to unpaid administrative leave to comply with due process requirements.  Unpaid administrative leaves are also more likely than paid administrative leaves to be covered by the district’s grievance procedure as a form of discipline.Wis. Stats. 66.0509(1m).

How long should an administrative leave last?
The length of an administrative leave will vary considerably based on individual circumstances.  As a general rule, administrative leave should continue at least through the end of the investigation. Ideally an investigation, and the concurrent administrative leave, should be concluded as quickly as possible. How quickly that happens varies based upon the complexity of the specific investigation.

What are outcomes following an administrative leave while an investigation takes place?
If the investigation clears the employee of wrongdoing, then the employee would be returned to regular duty, and the employer should make a name-clearing statement about the administrator’s exoneration through the investigative process.  If the investigation concludes with a finding of wrongdoing, then  notice of the employer’s performance expectations or discipline would follow the administrative leave.  If the employee is terminated, the termination would end the administrative leave.  

What should the employee be told about being placed on administrative leave?
In general, employees do not need to be told about the specifics of the investigation at the time the employee is placed on administrative leave. Best practice is for the employer to advise the employee of the general nature of the investigation so that a) the employee can gather helpful information to aid the investigation; and b) the employee does not experience the stress relating to an ongoing investigation for unknown reasons.  However, at an appropriate point in the investigation, the employer generally should disclose the allegations to the employee and provide the employee with an opportunity to respond to the allegations.  In certain situations, such as Title IX investigations naming the employee as a respondent, the employee must be given certain notice regarding the allegations.

What can an employer say to staff and the community about an employee who is on administrative leave?
No information to the community may be released that could harm the reputation of the employee before allegations have been fully investigated and any final action is taken by the employer.  Additionally, employers may not give out information that could jeopardize the confidentiality of student education/pupil records.  Following the investigation, certain records might become available to the employee and the general public under state employment record and public records laws.  Disclosure of information in a specific situation should be discussed with legal counsel.  For example, when an employee returns after an investigation clears the employee of wrongdoing, releasing certain non-confidential information or documents to the public might facilitate an employee returning to their job duties while giving the public a sense of confidence in the process.  The release of information to the public, including how much and when, is a delicate balancing act.  Additionally, some information may be released in the form of records, while other information may be embedded in statements or press releases.  

In closing, how does administrative leave fit into the investigative process? 
Although generally not disciplinary in nature, administrative leave is a serious action.  It can be very unsettling for both the employee and the rest of the workforce.  A thoughtful analysis of the individual situation in consultation with your school attorney can minimize the risk of unanticipated negative consequences for the district and/or the employee.  First, consider the health and safety of students and staff, then consider potential legal issues and rights on all sides, and finally, consider the impact that administrative leave will have in the community, including potential media coverage.  Some of these considerations are choices the employer will have to make, while other considerations may require additional action; for example, messaging to internal and external stakeholders, scripting responses, and hiring outside counsel to conduct an impartial investigation.  

DISCLAIMER:  This article is intended to provide authoritative general information, with commentary, as a service to interested parties. The materials and information provided in this article should not be relied upon as legal advice.  If needed, legal advice regarding any topic, issue, situation, or incident should be obtained from the school district's legal counsel.  

Bob Butler has been a WASB staff counsel since 1990. He is an associate executive director of the WASB.

Malina Piontek is retained legal counsel for AWSA. Her law practice focuses on school law, and she is a past-president and long-standing member of the Wisconsin School Attorneys Association.

Brian Goodman is an attorney with Boardman Clark.  He currently serves as President-Elect of the Wisconsin School Attorneys Association.