This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq
We have been representing and advising numerous federal employees regarding the Reductions-in-Force (RIF) that have recently been issued by several different federal agencies.
As most people have started to realize, these RIF actions have not been thought out very well and have been designed for speed as opposed to accuracy or compliance with the meaning of law and regulation. The question now is what to do if you receive an RIF.
What is a Federal Employee RIF
Federal employee RIFs are simply notices which start the separation process for federal employees. RIFs are supposed to be issued due to restructuring, department elimination, or lack of funding or work. RIFs are also supposed to follow laws, rules, and regulations. A federal employee is also supposed to be given 60 days’ notice before separation.
What We Have Been Seeing Lately
In many of the cases we have seen, most federal employee RIF notices simply state that their entire competitive areas have been eliminated. These mass RIF actions were never anticipated when the laws and regulations governing them were issued. The rules were supposed to be based not on speed but rather on a thoughtful process of eliminating positions that were no longer needed when government funds were low or when an agency needed to restructure.
In reality, the RIFs appear to simply be a means of getting rid of as many federal employees as quickly as possible based on a directive from the President. In most of the notices we have seen, there has been no consideration for performance ratings, years of service, or prior military service. The federal agencies directed to conduct these RIFs have simply looked at cutting numbers and not needs or proper reorganization. This is extremely unfortunate.
How are RIFs Supposed to Work?
RIF actions are subject to government-wide regulations set by the Office of Personnel Management (OPM). RIFs are governed by 5 U.S.C. § 3502 and OPM regulations in Part 351 of the Code of Federal Regulations.
In theory, the regulations were designed to make RIFs a fair process. Specifically, RIFs are supposed to rank several factors in determining who is separated and who is allowed to stay. A retention register is created for each employee, which typically includes their (1) Competitive Area, (2) Competitive Level, (3) Tenure Group & Subgroup, (4) Veteran’s Preference, (5) Performance, and (6) Years of Service. This has proven not to be the case.
All of the RIFs that we have seen so far have simply stated that a federal employee’s entire competitive area has been eliminated. It is an attempt to avoid the meaning of the regulations and conduct a mass termination of employees as quickly as possible. This is likely to give rise to numerous appeals and court actions.
Appealing a RIF — MSPB, Grievance and the Courts
One option for federal employees is to appeal the RIF action. The U.S. Code does not specifically provide a right of appeal to federal employees negatively impacted by RIFs. However, OPM regulations provide some guidance for appealing a RIF. Under 5 C.F.R. § 351.901, “an employee who has been furloughed for more than 30 days, separated, or demoted by a reduction in force action may appeal to the Merit Systems Protection Board.”
Furthermore, under OPM’s regulations, a federal agency may begin a RIF only for a legitimate reason, including reorganization, budgetary constraints, and lack of work, among others. That does not appear to be the true reason behind the RIFs that we are seeing. Additionally, federal employees who wish to challenge a RIF will need to choose a specific forum for their appeal. For instance, in most cases, an employee can only file an appeal with the Merit Systems Protection Board (MSPB) in RIF cases if these actions are excluded from the collective bargaining agreement that applies to them. Also, some unions have already initiated lawsuits over RIFs. One other note about appeals. Some federal agencies have internal appeals processes prior to separation.
The MSPB Could Overturn RIFs
The MSPB can overturn a RIF if the agency lacks a bona fide, fact-based reason that it acted pursuant to one of these reasons specified in the regulations. For example, in the June 1980 case of Losure v. Interstate Commerce Commission, a federal employee alleged that the agency had started a RIF to target her personally based on her “association with the office’s operation under the former supervisors.” While this is a different situation than what is occurring with mass RIFs, it is helpful guidance. The MSPB in Losure ruled that the agency’s RIF was based on pretext and, therefore, invalidated the RIF. The MSPB held that it “will not allow the circumvention of adverse action procedures where the ‘reorganization’ has no substance and is in reality a pretext for summary removal.”
In normal times, MSPB appeals could be difficult because of the amount of discretion given to federal agencies in conducting RIFs. The U.S. Court of Appeals for the Federal Circuit has held that “an agency is accorded wide discretion in conducting a reduction in force; absent a clear abuse of that discretion, a substantial departure from applicable procedures, a misconstruction of governing statutes, or the like, we do not upset a final agency decision.” Cooper v. Tennessee Valley Authority, 723 F.2d 1560, 1562 (Fed. Cir. 1983).
While the MSPB has been deferential to an agency’s organization and prioritization of its staff and budget, legal arguments can likely be made that the methods and implementation of these RIFs are an abuse of discretion and a departure from past practices. An appeal would depend on what type of information is uncovered in the discovery process. It might be uncovered that an agency was trying to intentionally circumvent OPM regulations. While agencies have significant discretion in taking RIFs, the speed and disregard for the standard RIF procedures may make many of these RIFs subject to action at the MSPB, in arbitration or in court.
Separation Payments
Another option for federal employees is to accept the separation. If you are separated by RIF, a federal employee may be entitled to severance payments depending on their length of service and age. OPM provides guidance on RIF separation payments. Severance pay under 5 U.S.C. § 5595 is authorized for covered full-time and part-time employees who are involuntarily separated from the federal government and who meet other terms of eligibility.
While calculating severance payments using OPM’s examples is not always easy, OPM does provide some guidance. Many individuals will receive a substantial severance payment, sometimes close to a year of pay, if they have a large number of years of service. However, a federal employee may not receive a total of more than 52 weeks of severance pay during his or her lifetime.
Contact Us
If you need legal advice or representation in connection with a RIF or other federal employee issue, please contact our office at (703) 668-0070 to by clicking here.
