Many federal employees have, or will soon be, facing agency reorganizations through Reduction in Force (RIF) procedures. RIF procedures are rules used by most agencies to determine the priority order for retaining employees after a downsizing.
The procedures for issuing RIF notices to employees generally provide that agencies give at least 60 days’ notice before a RIF may be implemented. Within this 60-day window, usually after 30 days, a specific RIF notice may be issued to individual employees notifying them that their position(s) have been abolished. If your position has been abolished, you may be entitled to exercise “bumping” or “retreat rights” against other employees with lesser tenure. More senior employees, especially those with veterans’ preference, may be retained, while employees with lesser tenure are separated from federal service.
Determining Who Is Part of a RIF
Each agency contemplating a RIF must first determine the “competitive areas” that will be affected. In the federal regulations, 5 CFR § 351.402 defines a competitive area as all or a part of an agency, with the minimum area being “a subdivision of the agency under separate administration within the local commuting area.” A competitive area must at least be an organizational unit of the agency, such as an office or division. Some recent RIFs, rather than reducing an existing agency component, have completely abolished the function. From management’s perspective, the advantage is that although “retention registers” (more about this below) must still be established, few if anyone on a retention register will be retained because the entire competitive area has been eliminated.
Determining Who Survives a RIF
As part of the RIF process, agencies must establish retention registers. These are listings of affected employees based on four statutory factors: 1. tenure of employment—whether the position is permanent or temporary; 2. veterans’ preference, i.e., prior military service; 3. length of government service; and 4. recent performance appraisals. These factors are then calculated to determine a person’s standing (relative ranking) on a register of employees in the competitive area.
I Received a RIF Notice That Says I Have Been Separated From Federal Service.
If you receive a notice separating you from federal service, you should examine it closely. Is the information the agency relied upon to determine your standing correct? To determine this, you should obtain and keep a copy of your official personnel file and compare the information in your file to what the agency used to compile the retention register. All federal employees, especially in these uncertain times, should retain a copy of their official personnel file—usually referred to as an eOPF (electronic official personnel file)—and ensure that it is correct.
If you find an error in either your personnel file or the RIF notice, you should immediately notify the agency. In some cases, it might make a difference.
Can I Appeal My Separation (Firing)?
Yes. Many employees may appeal a RIF separation to the U.S. Merit Systems Protection Board (MSPB). Employees in a bargaining unit (BU), i.e., covered by a union collective bargaining agreement (CBA) may not appeal to the MSPB. BU employees may only challenge a RIF in accordance with negotiated grievance procedures contained in a CBA.
Is it worth appealing a RIF to the MSPB? The facts and law applying to a specific RIF notice vary considerably. You should seek legal counsel to advise you of your rights. If you are covered by a CBA, you should talk to a union representative.
After the RIF
Even if you are separated from federal service, you may still have benefits. Some employees may be entitled to a Discontinued Service Retirement (DSR). An employee who is separated without cause is entitled to a DSR if they have at least 20 years of service and are age 50 or older, or if they have 25 years of service at any age.
Employees with less than the required service or age for a DSR who were serving in permanent positions will likely be entitled to severance pay. Severance pay is based on length of service and age. An employee is entitled to one week of severance for each year of service for the first 10 years of federal service; two weeks of severance for each year beyond 10 years; and an age adjustment factor that adds 10% to the severance calculation for each year the employee is older than 40. There is a 52-week limitation on severance pay.
Final Considerations
Losing a job can be a traumatic experience. Federal employees facing or subject to a RIF action should consult with an experienced practitioner to ensure that their rights and benefits are protected.
