As the incoming Administration may be preparing to initiate a Reduction in Force (RIF)—the formal layoff process of separating surplus federal civil service employees from government service—it would appear timely to review the rules and procedures that federal agencies must follow when implementing RIFs.
Under Office of Personnel Management (OPM) regulations, before an agency may remove, demote or furlough an employee for more than 30 days through a RIF, it must first complete several steps.
First, the agency must establish a competitive area, which is the part of the agency within which employees compete to stay. A RIF may not become effective until at least 90 days after the agency establishes the competitive area. Next, the agency groups similar positions into competitive levels. After this, the agency must establish a retention register for each competitive level, which ranks the employees based on their tenure, veterans’ preference, length of service, and performance.
Prior to a RIF, agencies must give employees (and their union representatives, if applicable) at least 60 calendar days’ advance notice. An agency may ask OPM to approve a notice period of less than 60 days, however the period may not be shorter than 30 days. Further, the notice must inform employees of RIF details, including: the action to be taken, the reasons for the action, the effective date, and their competitive area and level. Additional separate notices are required in some cases.
Finally, the agency releases employees from the retention register in the inverse order of their retention standing. For instance, employees serving under term are released before career employees serving a probationary period and nonveterans are released before veterans.
In certain circumstances, agencies must afford employees being released the right to displace employees occupying positions in lower subgroups in their competitive levels (known as bumping) or offer an assignment to a position very similar to a position the employee previously occupied in the federal government (known as retreating).
An employee who has been furloughed for more than 30 days, separated, or demoted by a RIF has a right to challenge the action, through the union grievance process within the deadlines specified in the union collective bargaining agreement, or by appealing to the MSPB within 30 days of the effective date of their RIF if they have MSPB appeal rights. Employees appealing to the MSPB can raise affirmative defenses if they believe that the action taken against them was discrimination or EEO or whistleblower reprisal, and employees without MSPB appeal rights who believe that the RIF action taken against them was due to discrimination or EEO or whistleblower reprisal can file complaints through those complaint processes.
If you are a federal employee facing an RIF and wish to discuss your rights and options, consider contacting Gilbert Employment Law, to request an initial consultation.