When is Paid Administrative Leave an Adverse Employment Action?

Lozano Smith Client News Brief
December 2017
Number 84

According to a recent court decision, "it depends."

On November 15, 2017, a California appellate court held in Whitehall v. County of San Bernardino that paid administrative leave can constitute an adverse employment action in certain circumstances. Even though the plaintiff employee was placed on paid administrative leave during the pendency of an investigation into her alleged wrongdoing, the court found that under the particular facts presented, the leave was an adverse employment action.


Mary Anna Whitehall was a social worker for San Bernardino County. Whitehall was involved in a dependency case in which she was directed to withhold evidence and to submit altered evidence to the court. Whitehall believed these actions could endanger children and, through her own legal counsel, filed a motion to inform the court of the suspected fraud.

Six days after the motion was filed, Whitehall was placed on paid administrative leave for a two-month period. According to the county, Whitehall was placed on leave to facilitate an investigation of her alleged violation of the county's rules against disclosing confidential information to unauthorized individuals. The county concluded that Whitehall violated the policy and acted to terminate her, but Whitehall resigned in lieu of termination.

Whitehall then sued the county, alleging it retaliated against her for her whistleblower activities. The trial court ruled in Whitehall's favor and the appellate court upheld the trial court's ruling. The Court of Appeal held that placing Whitehall on administrative leave and terminating her employment were acts of retaliation by the county. While administrative leave is not always an adverse action, the court said that it is an adverse action when it "materially affects the terms, conditions, or privileges of employment."

The court acknowledged that "[r]etaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context." Citing a previous appellate decision, the court noted that a lateral transfer to a position with equal pay could be an adverse action if it was "reasonably likely to impair [an employee's] job performance" or likelihood of success. The court said that Whitehall's administrative leave was an adverse action because she was placed on leave in the context of the county's disciplinary investigation rather than as a reward or accommodation or at her request, and her leave coincided with the termination of the original social worker involved in the case. The court also noted that the county's own evidence confirmed its intention to terminate Whitehall for disclosing the county's attempt to manipulate evidence to the juvenile court.


Paid administrative leave is an important tool that allows an employer to temporarily remove an employee from the workplace in certain situations. Paid administrative leave should not be used as a punitive measure and, if used properly, will not constitute an adverse employment action. Employers must thoroughly evaluate the reasons for the administrative leave and assess the decision on a case-by-case basis.

This is especially important when paid leave is being considered for an employee who may have engaged in a protected activity (e.g., whistleblowing, union activism, filing of a grievance or claim) from which a retaliation claim could be alleged. Some questions employers should consider before using administrative leave in these cases include:

  • What articulable problems are likely to arise if the employee is not removed from the workplace?

  • Are there other ways to address the situation without placing the employee on leave?

  • Is placement on administrative leave a routine course of conduct in this situation?

  • What steps can the employer take to minimize the time spent on administrative leave?

  • Can the administrative leave be construed as a response to any protected activities conducted by the employee?

  • What benefits and/or opportunities will the employee lose out on while on leave, and can the employer mitigate the lost benefits or opportunities?

For more information on the impact of the Whitehall case or on the use of administrative leave in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.