SEC Chair Gary Gensler Refuses to Address Looming Use or Lose Leave Crisis
The union wanted to provide an update to you on the impending “use or lose” leave crisis at the SEC. This week, the union was notified by SEC Labor Relations that Chair Gensler will be taking no action to further address this issue in 2022. This is an issue that is likely to affect all SEC employees for the remainder of the year, since Chair Gensler’s current misguided policy choice will likely result in a large number of employees being required to take a massive amount of leave between now and December 31, 2022. This means that the SEC will be experiencing shortages of employees in all of its offices and divisions for the remainder of the year, which will directly impact even those of us who do not expect to have use or lose leave at the end of 2022.
The Dimensions of the Use or Lose Problem
As noted in Jamey McNamara’s message a few moments ago, the SEC has permitted employees to carryover their excess use or lose annual leave that they were unable to schedule in 2020 and 2021 due to the pandemic. As the pandemic has continued during 2022 with the appearance of the Omicron variants and concomitant increase in “breakthrough” infections, this issue has continued to fester and grow at the agency. However, despite repeated requests by the union to address the issue by some combination of annual leave “buyback” (a solution utilized by the Consumer Financial Protection Bureau) and/or an extension of the time within which employees may use their accumulated pandemic leave, Chair Gensler has refused to confront the problem directly. Instead, he has continued to insist that employees use all of their accumulated leave by the end of 2022. Agency representatives have never provided the union with a reason for this choice.
This policy sounds nice during Town Hall meetings during which Chair Gensler tells employees that he is “a big believer that everyone should use their leave.” However, the problem with the Chair’s policy is that it is obviously unrealistic given the increasing workloads of SEC employees. The Chair is pursuing a very aggressive rulemaking agenda, and has also enacted other policies that have increased the workload for many employees. The combined effect of his aggressive agenda and his refusal to address the use or lose leave situation will be detrimental to the SEC’s ability to meet its mission during the remaining half of 2022.
Consider for a moment the amount of use or lose leave at issue. Based on a very recent information request to the agency, throngs of the SEC’s non-management employees are currently projected to have hundreds of hours of use or lose leave at the end of the year. The total projected balance for all bargaining unit employees is 351,930 hours of use or lose leave on December 31, 2022. That amounts to almost 9,000 individual employee weeks of work at the agency. With a little more than seven months left in the year, in order for the employees to use all their leave as Chair Gensler has directed, the agency stands to lose an average of almost 1,200 employee weeks of work per month between now and the end of the year—with the majority of that leave probably occurring nearer to the final months of the year. And this is without even counting the leave situation for SEC managers.
Simply put, it is hard to imagine how use or lose will not be a major problem that affects the SEC’s ability to meet its mission. Indeed, most senior managers are also very concerned about the issue and agree with the union that the agency needs to address it.
The Rules on Use or Lose
By agreement with the union in late 2021, SEC employees who had use or lose leave from the pandemic years 2020 and/or 2021 (i.e., annual leave above the 360-hour annual carryover per year) were not required to use it all by the end of leave year 2021. The carried over leave was not forfeited, but remained as category 020 annual leave for use by the employees.
Since no carryover or buyback is contemplated by Chair Gensler in 2022, if an employee is projected to have any use or lose leave at the end of 2022, they must request and obtain approval for all of that remaining leave for use during 2022. Under OPM rules, if the employee’s leave is scheduled in advance and there are enough work hours left in 2022 to cover that specific leave amount by December 31, 2022, the agency will then have the option of either (a) granting the leave or (b) denying all or part of the leave request based upon an “exigency of the public business” (i.e., the employee’s work is required by the agency) and reinstating the denied leave for use by the end of leave year 2024. There is one critical caveat to this—under OPM rules, in no event can an employee schedule any use or lose annual leave after November 19, 2022, the day before the third biweekly pay period prior to the end of the leave year. After that date, if some or all of the leave is denied by management, it is automatically forfeited.
With respect to the issue of “exigency of the public business,” the union will have to consider whether to respond to denials of leave by challenging such an “exigency” via the grievance process. It is difficult to understand how such an “exigency” can exist as a factual matter, when the head of our agency has frequently and publicly told employees over the past year to “use all your leave in 2022.”
To provide a more graphic demonstration of the date by which use or use leave must be scheduled to avoid forfeiture based upon various projected amounts of use or lose leave at the end of 2022, please consider this chart, which assumes that all of the leave is scheduled at the end of the year:
640 Hours: 9/1/2022
600 Hours: 9/9/2022
560 Hours: 9/16/2022
520 Hours: 9/23/2022
480 Hours: 9/30/2022
440 Hours: 10/7/2022
400 Hours: 10/17/2022
360 Hours: 10/24/2022
320 Hours: 10/31/2022
280 Hours: 11/7/2022
240 Hours: 11/15/2022
1 to 200 Hours: 11/19/2022
NB: This chart is only intended to provide a general sense of the latest date by which an employee will need to apply for and obtain approval for use or lose annual leave. Please do not rely on the chart—while we believe it to be accurate, you should carefully calculate your own projected use or lose balance, and ensure that you request all of that leave well in advance of the dates above to ensure that there is sufficient time remaining in the year to schedule all of your leave and get it approved. It is advisable to schedule all of your use or lose leave for the remainder of the year as soon as possible, to reduce the risk of errors and problems that could result in a possible forfeiture of leave that you have earned.
If you have any questions about your use or lose situation, please consult with a union steward.
Since Chair Gensler arrived at the SEC over a year ago, the union has advocated repeatedly for a combination of a partial leave “buy back,” similar to what is provided to employees at the Consumer Financial Protection Bureau, and a program allowing employees to use their remaining accumulated leave over a period of several years. Such a resolution would benefit the agency by ensuring that there would not be a marked decrease in productivity during the remainder of 2022. Unfortunately, to date, our proposals have been repeatedly rejected out of hand. Nevertheless, we will continue our efforts to change Chair Gensler’s current policy choice, and keep you posted if he changes his mind.