MSPB & Federal Employment Law FAQs
Federal Employment Retirement Benefits
What is the Federal Employees Retirement System (FERS)?
We’ve created a page for everything you’ve ever wanted to know about FERS here!
Do US Postal Service employees qualify for Federal disability retirement benefits?
Generally speaking, yes, but Postal Employees must meet certain requirements to qualify for FERS benefits. If you are a Postal Employee we recommend consulting with an attorney about your specific situation.
Can I obtain a waiver for the time limit placed on applying for FERS disability retirement benefits?
In some cases, such as for mental illness, you may be able to qualify for a waiver of the time limit. More specifically, if you are able to demonstrate that you were mentally incompetent on the date of your separation from the Federal government or within one year of this date, you may be able to have the time limit waived.
What if I was denied for FERS disability benefits?
Federal employees are often denied at first for a wide variety of reasons, sometimes technical and sometimes substantive. Our attorneys have had success appealing cases for Reconsideration by the OPM, appealing to the Merit System Review Board (MSPB), appealing to Federal Appellate Courts, and we have even argued on behalf of Federal employees at the US Supreme Court.
Merit System Protection Board Appeals
Which entities hear appeals of the MSPB?
Generally speaking, appeals alleging discrimination are held in Federal District Court while all others are heard by the US Court of Appeals for the Federal Circuit. Additionally, the Director of OPM can file an appeal, as can Special Counsel.
What is the largest amount the MSPB has awarded?
To date, it is $820,000 in the 2013 case of Robert W. Whitmore v. Department of Labor, where Whitmore was terminated after testifying before Congress that OSHA’s workplace injury and illness program was deliberately ineffective. (This result is obviously not typical or to be expected.)
Under which branch of government does the Merit Systems Protection Board fall?
The MSPB falls under the Executive branch of government. It is considered an independent, quasi-judicial agency that safeguards the Federal merit systems.
Federal Whistleblower Protections
What is the Whistleblowing Protection Act?
This law became effective on July 9, 1989 in order to strengthen the protections offered to federal employees that claim they have endured unfair treatment as the result of whistleblowing.
Federal Reduction In Force (RIF)
When a Federal Agency has their budget cut, do they have alternatives other than RIFs?
Generally speaking, an agency does have the ability to reduce spending on programs rather than terminate employee positions. Among the alternatives that some Federal agencies have chosen are:
- Cutting travel or training expenses (this is one of the most common ways agencies avoid RIFs, since travel and training are generally paid from the same accounts that disburse salaries)
- Cutting purchase or maintenance expenses
- Instituting unpaid furloughs
- Offering employee buyouts, or Voluntary Separation Incentive Payments (VSIP)
- Offering employee retirement packages
What Duties Does A Federal Agency Have For Maintaining Re-Employment Priority Lists?
Federal agencies must establish Reemployment Priority Lists (RPL’s) for each area in which it separates eligible competitive service employees as a result of a Reduction In Force or RIF. Furthermore, agencies must give employees information about the list when it issues a notice of separation. In order to register for the program, Federal employees must complete and submit the RPL application on or before the RIF separation date.
What Is A VSIP, or Voluntary Separation Incentive Payment?
A VSIP is a cash payment which Federal employees may be offered to leave voluntarily. For the most part, the maximum Voluntary Separation Incentive Payment is $25,000 ($40,000 for Defense Department employees). The payment is considered taxable. If a Federal employee accepts a VSIP buyout, they generally must be leave one or before a specific date, and cannot return to Federal employment for at least five years (unless they repay the VSIP).
What Should I Do If My Agency Is Considering a RIF?
Contact one of our attorneys today. There are many things you should do to prepare for a RIF in your agency, including but not limited to ensuring that your performance appraisals are complete and in your file (your placement on the retention register will play a factor in your likelihood of being terminated Additionally, you may be able to negotiate a demotion in which you can keep your pay for at least two years.
Where Can I find the Regulatory Requirements Governing a Reduction In Force?
Regulatory requirements governing a Reduction In Force are found in Title 5, Code of Federal Regulations, Part 351. Click here.
What Are the 'Two Rounds' of RIF Competition?
In “First Round RIF Competition”, the Federal agency applies the four retention factors to a competitive level to identify which employee has the lowest retention factor. In “Second Round RIF Competition”, the agency applies the four retention factors to determine whether a released employee has a bump or retreat right to a position in a different competitive level help by an employee with lower retention standing.
Where can I see a sample Retention Register?
The below sample is provided by the Office of Personnel Management. It includes additional credit for performance in the “RIF SCD”, and is a competitive level for GS-343-12 full-time employees holding competitive service appointments.
Disciplinary and Adverse Actions
Is the procedure for disciplining a Federal employee based on misconduct treated differently from discipline based on poor performance?
Yes, generally discipline based on misconduct follows a separate set of procedures than discipline based on poor performance. Regardless, the Federal agency must give employees a written proposal and right to reply before taking any disciplinary or adverse actions, and employees maintain the right to appeal to the Merit Systems Protection Board (MSPB).