Federal Reduction in Force Lawyers
A Reduction In Force, or RIF, occurs when a federal agency decides to abolish one or more positions of employment. During a RIF, agencies must follow strict OPM Guidelines, and federal employees affected by Reductions in Force have numerous rights and procedures available to them before, during and after the process, all of which come under the purview of the Merit Systems Protection Board. If you are a federal employee in an agency going through or about to go through a Reduction In Force, we have provided general information below about your rights, benefits and entitlements. Please keep in mind this information is general in nature: we strongly encourage you to consult with one of our MSPB attorneys to get information specific to your unique situation. At Leitner Varughese Warywoda Law we have been defending federal employees during RIF procedures for several years – we are here to fight for you!
Understanding A Reduction In Force
Federal agencies are permitted to use Reduction In Force actions to layoff or downgrade one or more employees for a number of specified reasons including: (1) a shortage of funds, (2) lack of work, (3) downsizing or reorganization, or (4) insufficient personnel ceiling. RIF procedures are also used during the exercise of certain reemployment or restoration rights. Without a doubt, RIFs can be disruptive, complex, and stressful.
An employee may have a right to placement in another position in the agency, depending on availability and reasoning. Importantly, during a Reduction In Force the government must abide by certain rules and procedures meant to ensure a fair process when determining which positions to terminate, who to layoff, and who to rehire when the RIF is complete. If these rules and procedures are not properly followed by your agency, you may be entitled to reinstatement or more.
How Does An Agency Determine Which Employees To Terminate?
Individual federal agencies have a good deal of discretion in initiating RIF actions. For instance, an agency is permitted to determine whether or not a RIF is necessary, which positions will be abolished, whether they can accomplish budget cuts in some other way, and when the RIF will take place. That being said, once an agency decides to go ahead with a Reduction In Force, there are strict retention regulations which come into play to determine which employee or employees the RIF will affect.
First, these regulations call for the grouping of employees within specific geographic areas. This is referred to as the “Competitive Area,” or the geographical and organizational limits for RIF competition. If your agency did not strictly abide by RIF Guidelines in determining the Competitive Area, you may have a case for appeal to the MSPB.
Second, when defining the Competitive Area, the agency must also define the “Local Commuting Area” for the Competitive Area, which usually includes one population center in which employees live and travel to work. If your agency did not strictly abide by RIF Guidelines in determining the Local Commuting Area, you may have a case for appeal to the MSPB.
Third, for each Competitive Area the agency must group interchangeable positions into “Competitive Levels.” Each level must include positions within the same grade, classification series, and more. If your agency did not strictly abide by RIF Guidelines in determining the proper Competitive Levels, you may have a case for appeal to the MSPB.
Employee Rankings
After grouping interchangeable positions into Competitive Levels, employees are then ranked on “Retention Registers.” Ranking is determined by an employee’s relative standing on Four Retention Factors:
- Tenure of Employment
- Veteran’s Status
- Length of Service
- Performance Ratings
If your agency did not strictly abide by RIF Guidelines in creating the Retention Register, you may have a case for appeal to the MSPB.
Note that RIF regulations and ranking procedures can be confusing and technically complex, and we strongly recommend walking through them with an attorney. Our MSPB lawyers have over a quarter century experience representing federal employees facing Reductions In Force – we will diligently review the procedures and ranking factors used by your agency, and if they did not adhere to these strict guidelines you may qualify for reinstatement or more.
Who Can Appeal to the MSPB?
A federal employee generally does not have the right to appeal a RIF to the MSPB if:
- The federal employee is part of a bargaining unit covered by a negotiated grievance procedure.
- The federal employee voluntarily accepts another position as part of a RIF.
- The employee works for a government contractor, who generally do not have the right to appeal a RIF.
A federal employee generally does have the right to appeal a RIF to the MSPB in the case of a termination, downgrading, or furlough which lasts more than 30 calendar days or 22 discontinuous workdays (a furlough of less than 30 days would be considered an adverse action as opposed to a RIF).
Abolishing an employment position does not always trigger the use of RIF procedures. For instance, an agency can avoid RIF actions by reassigning an employee to a vacant position (at the same pay grade or pay).
What Remedies Do Federal Employees Affected By A RIF Receive?
If you were terminated because of a Reduction In Force, you may be entitled to several benefits including but not limited to:
- Severance pay
- Benefits
- Unemployment compensation
- Unused annual leave
- Unused sick leave
- Health benefits under FEHBP
- Life insurance under FEGLI Life Insurance
- Immediate annuity (CSRS)
- Rights to withdrawal under a Thrift Savings Plan
- Retirement Benefits (if eligible)
- Priority reemployment rights (see below)
- and more.
Did You Get Every Benefit?
Did you get every benefit to which you are entitled? Was your Severance Pay calculated properly?
If you received a downgrade because of a Reduction In Force, you may qualify for priority consideration for promotions to positions up to your former grade level. Were you offered these?
Keep in mind, in addition to RIF regulations which determine whether an employee may keep their current position, all federal agencies must also determine if an employee has a right to a different position. Did your federal agency adhere to these regulations?
Additional federal employee rights during a RIF include:
- In many circumstances if an employee receives a demotion during the RIF process, they may be eligible to retain the higher pay rate of their previous position.
- If a position undergoes a geographic move as a result of a Reduction In Force, federal employees have the right to transfer with their functions. If this is not feasible, the employee may qualify for a discontinued service retirement, a special retirement supplement, and continuation of FEHB coverage.
- Many employees facing a RIF choose to voluntarily accept a demotion. In this case regulations allow for preserving your pay for at least two years.
Finally, you may have “bump” or “retreat” rights. Bumping means displacing an employee in a different competitive level who is in a lower tenure group or subgroup. Retreating means displacing an employee in a different competitive level with less service within the released employee’s own tenure group and subgroup. If you did not get either of these opportunities, you may have a case for appeal to the MSPB.
What Reemployment Rights Do Employees
Affected By A RIF Receive?
After a RIF, agencies use Reemployment Priority Lists, or RPL’s, to fill vacancies. An agency must give priority to certain former employees on an RPL so long as the employee meets all requirements for the vacant position. If an agency does not follow the RPL, federal employees can appeal to the MPSB.
Please note that federal employees must complete and submit an RPL application on or before the RIF separation date to register for the program and be entitled to reemployment priority rights. Were you notified about your reemployment rights? If you feel your reemployment rights were violated, we strongly encourage you to consult with one of our experienced lawyers.
Important Practical Details
If you are subject to a RIF, you may be able to use your accumulated annual leave to stay on your agency’s rolls past the RIF effective date. This is particularly helpful if it would get you to your first retirement eligibility date or FEHB carryover eligibility.
Employees can appeal a RIF for a host of reasons. However, the most common is if a federal agency did not follow proper guidelines during the RIF or in reemployment.
An agency may not disobey RIF regulations to separate or demote an employee for personnel reasons. These include alleged poor conduct or performance. Do you think you might have been terminated for a reason other than the stated RIF goal?
An agency cannot use an RIF to unjustly terminate specific employees. It cannot use a RIF action to remove employees based on age, race, gender, or any another ulterior motive. If you think you were improperly removed as part of a RIF, we strongly recommend you consult with one of our attorneys. Federal employees who are successful in the appeal of their RIF decision may receive reinstatement, backpay, and other benefits.
What If Your Agency Offers A VSIP?
In some instances, federal agencies may offer employees a Voluntary Separation Incentive Payment, or VSIP. This takes the form of a cash payment of up to $25,000, and often also includes Voluntary Early Retirement offers. If you have been offered a VSIP, we strongly recommend you consult with one of our federal employee attorneys. We can guide you through a host of important considerations. Some of the factors you should contemplate before accepting a VSIP are:
- VSIPs are subject to taxation, so be sure to calculate the actual take-home benefit of the VSIP offer.
- By accepting a VSIP, you cannot return to federal employment for at least 5 years unless you return the pre-tax VSIP payment in full.
- By accepting a VSIP, you must leave on or before a specified date.
Voluntary Early Retirement
The Voluntary Early Retirement Authority, or VERA, permits federal employees to retire at age 50 with 20 years of service. Or they can retire at any age with 25 years of service. However, before accepting voluntary early retirement, be careful — you may still see reduced benefits.
Why Contact Our MSPB Lawyers?
If your agency is going through a RIF, it is essential to have strong representation at every stage of the process. Before a Reduction In Force, there are steps a federal employee can take to help ensure your job is not affected. Furthermore, there are steps you can take to mitigate your harm if your job is affected. After a RIF, if your agency did not adhere to the numerous policies and procedures put in place to preserve your rights as a federal employee, you may have a case for an appeal to the MSPB (or EEOC). Additionally, you may qualify for reemployment rights after the RIF. However, there are certain steps you must take to preserve those rights. Other issues an attorney experienced with RIF procedures can guide you through include:
- Agencies failing to properly put employees on the Retention Register.
- Agencies using unlawful factors to carry out a RIF. For example, targeting older employees closer to retirement.
- Agencies denying employees certain Reemployment Rights
Note that in almost all cases, there are strict guidelines for filing appeals. In most cases, a separated, downgraded, or furloughed employee must appeal the decision during the 30-day period. This period starts the day following the effective date of RIF action.
Since Federal Reduction in Force cases can be complex, we recommend you consult with one of our attorneys. We can conduct a thorough evaluation of your case to help ensure the protection of your rights through every step of the process. Give us a call at (888) 594-0424 or fill out the form to your right to see how we can help. We look forward to talking with you!