Federal Reduction in Force Lawyers
A Federal Reduction In Force, or RIF, occurs when an agency abolishes one or more positions. Agencies must follow strict OPM RIF Guidelines, and Federal employees affected by RIFs have numerous rights and options available to them before, during and after the process. If you are a Federal employee facing the difficult situation of a Reduction In Force, we have provided the below general information about rights, benefits and entitlements to all Federal employees affected by a RIF, but this information is general in nature and we strongly recommend you consult with one of our Federal employment attorneys about your specific situation.
What Is A RIF?
A layoff in the Federal Government is referred to as a Reduction In Force (RIF) action. RIFs can be disruptive, complicated, and expensive. During a Reduction In Force, the Federal 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 after a RIF.
Federal agencies are required to use RIF procedures if any employee is faced with (1) separation, or (2) downgrading, for reasons including (1) reorganization, (2) lack of work, (3) shortage of funds, (4) insufficient personnel ceiling, or (5) the exercise of certain reemployment or restoration rights.
This can result from a lack of work, or from an agency’s inability to pay employees in a specific position or who perform a certain task. A federal agency can also use Reduction In Force procedures when they are forced to downsize due to reorganization, transfer of function, or shortage of funds. An employee may have a right to be placed in another position in the agency, depending on the availability and reasoning.
How Does An Agency Determine Which Employees To Terminate?
Individual Federal agencies are given the right to decide which positions will be abolished, where a RIF necessary or if budget cuts can be accomplished in some other way, and when the RIF will take place. Once an agency makes a decision to move forward with a Reduction In Force, retention regulations then determine which employees will be affected.
First, Federal employees are grouped within specific geographic areas. Next, the employees are ranked according to four factors:
- Tenure of employment
- Veteran’s Status
- Length of Service
- Performance Ratings
The abolishment of an employment position does not always require the use of RIF procedures. For instance, an agency has the ability to avoid RIF actions by reassigning an employee to a vacant position (at the same pay grade or pay).
If you feel your agency did not properly follow ranking procedures and that your employment rights were violated, we strongly recommend you speak with one of our experienced MSPB lawyers about your specific situation.
Who Can and Cannot File A RIF Appeal to the MSPB?
A Federal employee has the right to appeal a RIF decision to the MSPB, a furlough which lasts more than 30 calendar days or 22 discontinuous work days, or a voluntary retirement pursuant to a RIF if the employee’s decision was based on misleading or inaccuratee information. 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, they will be expected to use the negotiated grievance procedure.
- The Federal employee voluntarily accepts another position as part of a RIF they
- Government contractors generally do not have the right to appeal a RIF decision
What Rights & Remedies Do Federal Employees Receive?
Employees who lose their jobs are eligible for severance pay of up to one year of salary, unemployment compensation benefits, retirement benefits (if eligible).
Federal Employees terminated according to a RIF may have priority reemployment rights.
Federal agencies must follow RIF regulations which determine whether an employee may keep their current position. Did your Federal agency strictly adhere to those regulations?
Federal agencies must follow RIF regulations which determine whether an employee has a right to a different position. Did your Federal agency strictly adhere to those regulations?
Does the stated legal basis for the RIF withstand scrutiny?
In many circumstances if an employee is demoted during the RIF process, they may be eligible to retain the higher pay rate of their previous position.
If a position is moved geographically as a result of a Reduction In Force, the Federal employee has the right to transfer with their functions, and if that is not feasible the employee may be eligible for a discontinued service retirement, a special retirement supplement, and continuation of FEHB coverage.
Additionally, many employees facing a RIF choose to voluntarily accept a demotion, in which case regulations allow for preserving your pay for at least two years.
When preparing for a RIF, the Federal agency must define 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.
While defining the competitive area, the agency also defines 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.
Within each competitive area the agency must group interchangeable positions into “Competitive Levels”, with each level including 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.
After grouping interchangeable positions into competitive levels, the agency must then apply the four retention factors in establishing separate “Retention Registers” and rank employees on the Retention Register in the order of the employee’s relative retention standing. 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.
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, and Retreating refers to displacing an employee in a different competitive level with less service within the released employee’s own tenure group and subgroup. If you were not afforded either of these opportunities, you may have a case for appeal to the MSPB.
If you were downgraded because of a Reduction In Force, you may be able to receive priority consideration for promotion to positions up to your former grade level. Have these been offered to you?
If you were terminated because of a Reduction In Force, you may be entitled 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, and more. Did you receive every benefit to which you are entitled? Was your Severance Pay calculated properly?
Transfer of Function regulations require that under certain conditions, employees may have the right to move with their work to another organization if the alternative is separation or downgrading. Have you been apprised of this possibility?
If you are scheduled to be separated by RIF, you may be able to use your accumulated annual leave to remain on your agency’s rolls past the RIF effective date if this would allow you to reach your first retirement eligibility date or FEHB carryover eligibility.
An agency must give an employee no less than 60-days written notice before the employee is released, although in some instances, such as a natural disaster, the agency may request approval from OPM to give an employee less than 60 days, but no less than 30 days. If you were not given proper, specific written notice, you may have a case for appeal to the MSPB.
A RIF can be appealed for a host of reasons, most commonly if their Federal agency did not follow proper guidelines during the RIF or in reemployment.
An agency may not use RIF regulations to separate or demote an employee for personal reasons, such as 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. In other words, it cannot use a Reduction In Force to remove employees based on their age, race or gender, or for another ulterior motive.
Employees who are successful in the appeal of their RIF decision may receive:
- Other Benefits
- Attorney’s Fees
If you have been improperly removed as part of a RIF, we strongly recommend you consult with one of our attorneys to get information specific to your unique situation.
What Reemployment Rights Do Employees Have?
Federal employees who are terminated as a result of a RIF are given re-employment priority rights. After a RIF, Federal agencies use RPL’s, or Re-employment Priority Lists, to fill vacancies, and an agency must give priority to certain former employees on the RPL so long as the employee meets all requirements for the vacant position. Note that Federal employees must complete and submit the RPL application on or before the RIF separation date in order to register for the program.
If a Federal agency does not follow the RPL, Federal employees can appeal to the MPSB. If you feel your reemployment rights were violated, we strongly encourage you to consult with one of our experienced lawyers.
What If I Am Offered 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 speak with one of our Federal employee attorneys. Among the things you should consider:
- 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
What If I Am Offered Voluntary Early Retirement?
The Voluntary Early Retirement Authority, or VERA, permits Federal employees to retire at age 50 with 20 years of service or at any age with 25 years of service, but be careful – you may be subject to a reduction in benefits.
Why Contact An MSPB Lawyer?
It is essential that you have strong representation at every stage in the RIF process. Before a Reduction In Force, there are many steps you can take to help ensure your job is not affected, or steps you can take to mitigate your harm if your job is affected. During a RIF, there are numerous policies and procedures your agency must adhere to in order to preserve your rights as an employee, and if those procedures are not followed you may have a strong case for an appeal to the Merit Systems Protection Board (MSPB) or EEOC. After a RIF, you may be entitled to reemployment rights which you must take certain steps to preserve.
- If your agency failed to properly place you on the retention register and you are subjected to separation
- If the Reduction In Force was not carried out according to specific guidelines
- If the RIF is carried out in a discriminatory manner (for example, targeting older employees closer to retirement)
- If you have been denied Reemployment rights
Note that there are strict guidelines for filing appeals, and in most cases an employee who has been separated, downgraded, or furloughed must appeal the decision during the 30-day period beginning the day following the effective date of RIF action.
Since RIF cases can be complex, we recommend you consult with one of our experienced Federal Reduction In Force Attorneys. We will be able to conduct a thorough evaluation of your case to ensure that your rights are protected through every step of the process. Our attorneys have been representing Federal employees from coast-to-coast for over 30 years, and we strongly recommend you get in touch, either by calling our office today or filling out the consultation form on your right hand side, to see how we can help.