Ask The Lawyer

By Debra Roth

What you should know about appealing a furlough

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This article originally was first posted on this blog on May 14, 2012. We are re-posting it because of its renewed relevance to the current sequester cuts and expected furloughs.

The ever-present threat for federal employees is the furlough.

It is there when there is a budget showdown over a continuing resolution, and last summer, groups of Federal Aviation Administration employees were furloughed because Congress could not agree on legislation.

In most cases, Congress approves back pay and everyone goes home happy, and you look back on it and say it was not such a big deal. But there is no guarantee that Congress will continue to approve back pay, and some agencies have threatened periodic furloughs for groups of employees in order to meet budget shortfalls.

What if you are furloughed and you do not think you will receive back pay? Do you have any rights? If you receive no back pay for your furlough and those so-called essential workers are paid, can you challenge the fairness of designating you as nonessential if you did not get paid?

Congress has defined a furlough as being in a nonduty and nonpay status for 30 days or fewer because of a lack of work or funds, or for other nondisciplinary reasons. A furlough can only be ordered to promote the efficiency of the service, and you even have an appeal right to the Merit Systems Protection Board if you are subjected to a furlough. In fact, a furlough is considered an adverse action.

There are two circumstances when furlough appeal rights might really make a difference. The first is when a furlough is used to hide a true motive of a disciplinary action. This is probably a rare occurrence, but if someone is furloughed and he or she believes the agency is claiming there is a lack of work and thus a furlough is necessary, the employee could appeal and perhaps prevail if evidence exists that the real reason for the furlough was personal animus.

The second circumstance when a furlough appeal is meaningful is when the issue is about the fairness of the selection process for those subjected to the furlough. An appeal could be filed and evidence showing a lack of fairness in general could negate the furlough.

Furloughs of longer than 30 days are considered reductions-in-force (RIFs) and are appealable to MSPB under the RIF rules, not the furlough adverse action rules. This could present a confusing circumstance, particularly if some employees are selected for a furlough and others are not. Perhaps that is one reason furloughs are rarely used except as a result of congressional action shutting down the government.

The bottom line on furloughs is that an agency that furloughs its employees for clear-cut reasons related to a lack of work or funds and does not discriminate or treat its employees unfairly will most likely be upheld by MSPB. Because of this, there are few furloughs and fewer furlough appeals.

A couple of variations on this theme could occur. Recently, many state and local public employees had furloughs of a pay period or a month. Some federal agencies have considered this option because of budget shortfalls. This is a legitimate reason for a furlough as long as all employees in the affected part of the agency are furloughed. When an agency starts to pick winners and losers with some employees furloughed and others considered essential, it stands a chance of having the furlough overturned.

An employee is supposed to receive 30 days’ notice before a furlough. Sometimes this is not possible, usually because of Capitol Hill standoffs. The Office of Personnel Management allows for emergency notice if the advance notice cannot be met. If you are furloughed and you think it is unfair, you have 30 days from the start of the furlough to appeal to MSPB.

The complexity of figuring out the fairness of those who go to work in a government shutdown and those who stay home is difficult. Perhaps this is one reason that, to date, Congress has always decided to pay back pay for furloughs caused by failure to approve a budget or a continuing resolution.

Comments

  1. DoD employee Says:
    March 20th, 2013 at 11:05 am

    Interesting article about the appeal process. I am seriously thinking about appealing the furlough on the bases that the budgeters were not allowed to look for other cost savings except for furloughs … i.e. a total hiring freeze, or canceling ALL training and travel. When all govt. agencies were told to “Make it Hurt” there may be a legitimate backdoor disenfranchisement. Even if the appeal seems frivolous … everyone should appeal.

  2. Kevin Says:
    March 20th, 2013 at 9:22 pm

    How can seven police officers be furloughed out of 68 officers on the grounds of saying that the seven are not directly engaged in police work but perform the same duties of others at any giving time and wear full gear everyday prepared for forever. The police description duties read the same for all and hired on the same job announcement. The seven must report to work in inclement weather, snow blizzards even when the government is close.

  3. Nobody Says:
    May 18th, 2013 at 6:19 am

    The guidance I have received regarding appeals is that you must first challenge the furlough with your agency within ‘X’ amount of days of receiving notification of the furlough. Assuming the challenge fails, then you submit an appeal to the MSPB.

    How do you challenge the furlough within your agency? Do you file a grievance with the union? Or is there another way?

  4. Cindi Says:
    May 19th, 2013 at 4:34 am

    What about each facility being allowed now at the last minute(according the Hague’s memo) to pick an additional “50″ to call essential? is this another reason to appeal? We have been told we are keeping government contractors employeed while furloughing civilian employees doing the exact same job? is that a reason for furlough appeal to MSPB? yes they will also be furloughed the same days as the civilians but the facility could furlough the contractors 2 days and pay the civilians do do their work on the contractors furlough 2nd day. or no?