By Debra Roth
April 29th, 2012 | Uncategorized
With all the talk about government downsizing, some employees might end up being affected by a reduction-in-force, or RIF. Hopefully, any downsizing can be accomplished through normal attrition, helped along by buyouts and early retirements.
But if a RIF does happen, it is important to understand the somewhat complex system’s basic premises. The following is a brief review explaining how RIFs are conducted.
An agency may only conduct a RIF for certain specific reasons: lack of work; shortage of funds; personnel ceiling adjustments; reorganization; the exercise of re-employment or job restoration rights; or the reclassification of an employee’s position due to erosion of duties if the reclassification occurs during the RIF. These are fairly broad authorities, especially when doing a RIF for a reorganization, and it is usually fairly easy to justify a RIF.
The geographic area where the RIF occurs is called the competitive area. It is usually the commuting area and may include multiple commuting areas, each of which would be a distinct competitive area.
Competitive levels are groupings of jobs, and are usually based on position descriptions, job series or some combination of the two. Beware of the one-person competitive level, a growing occurrence as agencies try to misuse the RIF procedure as a substitute for the adverse-action procedure to target specific employees whom management may view as undesirable.
While this motive is not allowed, proving it is hard, and one-person competitive levels have been upheld if the RIF’d employee’s job is sufficiently distinct from other employees’ jobs.
There are three tenure groups where the competition occurs to determine who stays and who goes, or who is demoted:
* Career employees, usually those with at least three years of service.
* Career-conditional employees and those serving in a probationary period.
* Those serving indefinite or temporary appointments.
Within each tenure group are subgroups:
* AD, preference-eligible veterans with a 30 percent service-connected disability.
* A, all other preference-eligible veterans.
* B, preference-ineligible employees.
Employees are placed on a retention register based on the above groups and their years of service. They may receive extra credit for a higher performance rating. Employees are released in inverse order of their standing on the retention register.
Competitive service employees in the first and second tenure groups only have “bump” and “retreat” rights. “Bump” means you replace someone in a lower tenure group or in the same tenure group but a lower subgroup. “Retreat” means you are offered a position in a lower subgroup that is not more than three grade levels below the position you held and is the same or essentially the same as the position you held.
A RIF’d employee who is separated is entitled to discontinued service retirement if he or she has 20 or more years of service and is at least 50 years of age, or if he or she has 25 years of service at any age. An employee who is not entitled to discontinued service retirement is entitled to severance pay, which is based on years of service.
For longer-serving employees, the amount of severance pay can easily exceed the amount of a typical buyout.
A demoted employee is entitled to retain his grade for two years and his pay level indefinitely. An employee who refuses a demotion of not more than two grade levels and separates is not entitled discontinued service retirement or severance pay.
An employee who is demoted or separated as a result of a RIF may appeal to the Merit Systems Protection Board. The appeal is largely technical and concerns questions about whether all the rules were followed. A RIF’d employee should thoroughly review all the rules before deciding whether to appeal. An employee who is released or demoted may also claim discrimination or reprisal as a part of the MSPB appeal.
An agency is required to give at least 60 days’ notice of a RIF before any employee can be released or demoted.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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