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

Ohio Law – R.C. § Under R.C. § (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

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.

R.C. § (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.

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.

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.

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.

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.

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. § (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.

Questions? Thanks for attending!