The President recently signed an executive order on February 11, seeking to initiate the start of expected Reductions-in-Force (RIF) for federal employees. This follows the Administration’s attempt to reduce the size of the federal employee workforce through deferred resignations, the use of Voluntarly Early Retirement Authority (VERA), and the termination of a number of probationary employees. The next step for the Administration may be to use the RIF process to further reduce the size of the federal workforce. I think, however, that implementing a large-scale RIF of federal employees will be much easier said than done.
What is a RIF?
A RIF occurs when a federal agency decides to reduce federal employee staffing. The Office of Personnel Management (OPM) is responsible for regulating RIF actions by federal agencies. Many federal employees have been justifiably concerned as to whether or not they might be subject to a RIF as part of the Government’s attempt to reduce the size of the federal employee workforce.
RIFs are not easy to implement quickly and require that the Government follow a number of rules correctly. When an agency initiates a RIF action, it has to comply with all applicable laws, regulations, agency policies, and the terms of any applicable collective bargaining agreement. It would be very difficult to implement RIFs quickly. Doing so would likely result in numerous errors and reinstatements.
The Pending RIF Process
From the details starting to come out in the news, OPM may attempt to urge federal agencies to initiate RIFs of federal employees to further reduce staffing. If so, there will need to be some lead time built in. A RIF action cannot be initiated immediately. To start, the RIF would have to be planned by each federal agency. Under federal regulations, federal agencies are required to establish “competitive areas” in which employees compete for retention. These competitive areas can be defined as the entire agency or just a smaller portion of it. Doing so could take federal agencies to complete.
Next, an agency would have to establish “competitive levels.” This would include all positions in a competitive area that are in the same grade (or occupational level) and classification series, among other issues.
Retention Registers
An agency would then have to establish a retention register for purposes of ranking each competitive level for a RIF.The factors ranked include (1) tenure of employment, (2) military preference, (3) length of service, and (4) performance ratings. As you can see, this starts to get complicated and we are not even halfway through the process. The factors in the retention register must be fully evaluated, and employees must be ranked in order of these 4 factors.
Without detailed planning, many federal agencies might go about the RIF process without following the numerous laws and rules that apply. To correctly prepare RIFs, it is likely to take a number of months of planning.
Bump and Retreat Rights
Further complicating potential large-scale RIFs are additional rules regarding bump and retreat rights. Bumping involves the assignment of a federal employee to a position in a different competitive level that is held by another employee in a lower returning group. Retreat rights involve the assignment of an employee to a position in a different competitive level that is held by another employee with less time in service. To see how complicated this process can get, take a look at OPM’s guidance.
60 Days Notice Required
If, say, 4-6 months from now (or longer) the Government gets everything in place, and assuming that they do not reverse course, RIF notices could go out. In such a case, a federal employee is required to normally be given 60 days notice. They will also be given information regarding appeal rights.
RIF Appeals
A federal employee who has been separated, downgraded, or furloughed for more than 30 days by RIF has the right to appeal to the Merit Systems Protection Board (MSPB) if the employee believes that the agency did not properly follow the RIF regulations. As you can see from this brief description above, it would be very easy for a federal agency to make mistakes in the RIF process. These errors would all be subject to appeals.
MSPB appeals must be filed within 30 days of the effective date of the RIF. Employees represented by federal unions covered by a collective bargaining agreement that does not exclude RIF appeals must use the grievance and arbitration process. As a result, an employee may not appeal the RIF action to the MSPB unless the employee alleges the action was based upon discrimination.
Other RIF Alternatives for the Government
A federal agency can take another route to abolish positions without using the RIF process. An agency, instead of using RIF procedures, can also assign a federal employee to another vacation position at the same grade or rate of pay. The prior position can then be eliminated.
What is the Best Strategy for RIFs Right Now?
We have been advising federal employees that the RIF process if it comes, will take a lot longer than anyone anticipates. The best advice if RIFs are of concern is to consult a federal employment attorney and be prepared. It would surprise me if agencies were able to get this process in place within the next 5-6 months. Additionally, it might take another three months to start RIF separations. There is likely to be significant litigation over the issue. A number of federal unions also just filed a lawsuit seeking to stop the newly anticipated RIF policy. While that lawsuit was denied yesterday on procedural grounds, other lawsuits are likely coming. Federal employees should seek advice when evaluating the RIF process and take a deep breath. The is always the likelihood that the Government reverses course if this looks like it is going to take too long.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws, regulations and government policies are always subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
