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What to do in the unlikely event of a reduction in force at your agency

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There is little chance the layoffs that have affected some industries will affect government. If anything, agencies are hiring. But reductions-in-force have occurred occasionally over the years. If that’s the case — or maybe you’re just worried — what exactly are your rights and options. For a review, the Federal Drive with Tom Temin spoke with Tully Rinckey Managing Partner Michael Fallings.

Tom Temin We haven’t seen a reduction in force. They tend to be, I think, more spot applied because of a particular small agency or mission that might be affected. But what causes reductions in force, in general, from your experience?

Michael Fallings Typically, it’s reorganizations that result in job eliminations or shortages of funds from a particular organization that would cause a reduction in force.

Tom Temin And have you seen that occur much in recent years?

Michael Fallings Yes, typically through the reorganizations that federal agencies will do when they’re looking to combine positions, consolidate different organizations, they’ll reduce their force and look to just have a particular person in that position.

Tom Temin And what is the proper process by which they decide who gets the boot and who gets to stay?

Michael Fallings There are federal regulations that control the reduction of force procedures. There’s factors that the agencies have to consider. It relies upon veterans preference, whether a particular employee has veteran’s preference. But also the employees tenure of the employment, their type of appointment, their length of service and their performance ratings, are also factors that federal agency will have to consider in a reduction of force.

Tom Temin Right. So the agency manager making the decision then has got a lot of things to balance. Someone could have been there as a veteran for 15 years, but if they’re a terrible performer, can that person go ahead of someone who’s been there two years but is a stellar performer doing similar work?

Michael Fallings Well, the agency managers aren’t the only ones that’ll be working with the agencies, labor relations departments as well. And each situation depends as well, as who would be potentially separated, who would be reassigned, as far as whether somebody is performing better than the other, it also, like I said, depends on the veteran’s preference of the employer length of the service. So each situation would depend.

Tom Temin Well, does bargaining unit representatives unions have a say in it?

Michael Fallings Yes. There are employees that are represented by unions through the collective bargaining agreement, that they would have a right to petition or file grievances regarding what occurs for that employee.

Tom Temin All right. So what is the best way for agency managers to go about the decision? There’s a lot of variables, there might be a union contract in there. There could be a clause that covers reductions in force, I imagine, too, because these are long contracts. So what are some specific ways to begin the process? Because it sounds like you could get hit for a wrongful dismissal process no matter what you do.

Michael Fallings Yes. It is a difficult situation for any employee to go through a reduction in force being laid off. So managers need to understand that, but they also need to be sure they’re treating everyone equally, because that’s a common complaints that people may have, is that they’re not being treated equally or fairly. And that’s going with following the procedures that are set forth in the regulations. Considering those factors and in relying upon their legal representatives for the agencies, and also just the Labor relations Department to ensure that you’re implementing equal treatment across the board.

Tom Temin And what are some of the important elements of that process as it’s outlined? And this is in the statutes?

Michael Fallings Yes. And that goes back to the factors I mentioned as far as the type of appointment, the performance of the employees, how long they’ve worked there. Typically, like I’ve said, that this occurs when there’s a reorganization or cost cutting measure. So there is not just the manager that’s making a decision. There’s other people that are involved in determining what caused to cut. So those are factors in making sure you’re applying equal treatment to the jobs you are cutting and you’re consolidating or things that need to be considered when you’re implementing this reduction of force.

Tom Temin We’re speaking with Michael Fallings. He’s managing partner at the law firm Tully Rinckey, which has a long experience representing federal employees in these kinds of matters. What about buyouts? Because once in a while, an agency will offer a buyout in lieu of forcing people out or people can take early retirement. When do you go to that particular option?

Michael Fallings Severance or payment of employees does occur for separating, but the employee does have to be, for federal government purposes, has to be with the federal government for at least 12 months. But that is an option that the employee could take advantage of. However, they also have to consider any reassignments or jobs that have been offered and they can’t decline particular assignments that are in their community and an area or that they’re eligible for, to be eligible for severance payments. But that does occur. And an employee, as long as they meet those requirements, are eligible for the payments that a government may offer.

Tom Temin But is there a difference between a severance payment and a generally offered buyout program that people volunteer for?

Michael Fallings I would say it’s about the same. A government agency is offering to pay money to an employee for separating. And the government agencies, there is procedures to do that. I believe it’s about the same as far as a government agency agreeing to pay money to an employee or a buyout, as you’re calling it, for an employee to separate.

Tom Temin Well, a buyout, I think of as something offered generally and the first hundred people that decide they are willing to leave can get the $25,000, usually is what it is, and off they go and they can get their annuity. Whereas a severance might be issued singly to selected individuals that have no choice departing. Do you think that’s a fair distinction?

Michael Fallings Well, I don’t think so, because I think people do have a choice, even with the severance option. As far as the retirement aspect, people have to be eligible for retirement. And so if they are eligible for retirement, people do get a choice to have going through a procedure to take advantage of the retirement option and retire in that fashion.

Tom Temin All right. So what are the employee’s rights, in such a case, when there’s a reduction in force coming because of, say, a reorg or the agency’s budget was cut and Congress says you’ve got this many fewer billets.

Michael Fallings Well, they’re still eligible to file complaints through the different offices that a federal employee may have, an EEO office, the Office of Inspector General’s Office, if they believe that the action is not being taken fairly or taken in retaliation. Of course, they’re not in agreement over that, their job is being taken or being reduced. So those options are still available to the employees as well as, as we’ve mentioned, contacting their union representative and filing grievances if they believe the procedures are being conducted fairly or appropriately in line with the policies.

Tom Temin And if someone is designated to go and they get the severance or their offer the severance, and your last day is Friday, see you later. And they decide to file a grievance. Do they get to stay at the agency during the course of the grievance? Or do they have to just be off premises?

Michael Fallings Typically, no, they do not get to stay at the agency. You would be able to file a grievance and that doesn’t prolong your employment. I say typically, because there may be a chance to negotiate with an agency. If you file a grievance, the agency may be willing to discuss an alternative, other than a severance, maybe a reassignment. But typically, if there’s an effective date for their separation, that’s when an will occur. Then you could file a grievance within a certain period of time or even beforehand, but you would still be separated on that date.

Tom Temin It sounds like agencies that are contemplating this requirement to have a reduction in force, for whatever reason, really need to think about who’s the reduced way in advance of this actually happening. It seems like they would have to have a game plan that is getting them to the levels they’re entitled to, in terms of number of positions, but also that the decisions can be supported. Should they be challenged?

Michael Fallings Yes. And I think that takes more than days or even weeks. It takes months of decision making and planning. Especially when you’re dealing with supervisory positions, perhaps, when you’re trying to consolidate supervisors and you’re eliminating supervisory positions. Even when you’re just demoting people. People going through these situations are going to be understandably upset and that’s going to cause them to contact the legal representative or just look through different legal avenues, ways to challenge the action. So agencies do have to be prepared and have discussions through their managers, their different departments, and have a plan set forth so they can defend the actions that are taken.

Tom Temin Is it okay for an agency management to say, look, in a year we’re going to have an [reduction in force (RIF)], or in six months we know we’re going to have to let a certain number of people go. You may start looking now for another position somewhere else in the government. We don’t know who’s going to be laid off, but if you’re worried, now’s the time to be looking around. Is that a kind of a kosher way to ask people to to think about it?

Michael Fallings Well, typically the notices, I think, required, however, the notice is specific to particular people. I’ve seen in my experience that, OK, a RIF is going to occur, your position will be affected. Effective in about a month or two months or whatever the date is. These are the procedures you can take advantage of to get reemployed or be reassigned. As far as a general, hey, we’re going to eliminate this office. I don’t advise the agency to do that, because that will obviously cause, scare and nervousness and may lead to certain employees leaving, even though they may not be affected. Usually it’s a specific notice to specific employees or specific office.

Tom Temin Right. So if a particular program is going to be canceled, and that involves 22 people that are working on that program, it’s no longer funded. It sounds like the agency can make a cut and dry decision. The program’s gone, so the people connected to it are gone. But it’s never quite that clean and cut and simple, is it?

Michael Fallings It’s never that clean and cut. But the agency could provide notice to those affected employees. And offer them the severance or offer them a chance to apply elsewhere and give them consideration in applying elsewhere or reassigning them to a different office.

Tom Temin All right. Anything else we need to know? Do you anticipate this happening any time in the near future, anywhere?

Michael Fallings I don’t anticipate it specifically happening. But in today’s day and age, you never know. I think, like we talked about, specific organizations make different changes and different reorganizing that happens frequently. I think employees should always be aware of their rights, like we talked about, but they still have rights to contact their union, to file a grievance or even through an administrative grievance process, or even filing through an EO or office inspector general’s office that they believe discrimination, retaliation set play.

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