Ask The Lawyer

By Debra Roth

Your rights when you are geographically reassigned

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In some parts of the federal government, geographic reassignments are a rare occurrence, even for the supposedly mobile Senior Executive Service corps. In other agencies, especially law enforcement agencies, geographic reassignments are to be expected at all grade levels and are good for career advancement. Most federal employees work in agencies where geographic reassignments do occur, but occur with varied frequency and sometimes varied motives.

The varied motives that accompany some geographic reassignments include using the reassignment only to force the resignation or retirement of the employee and for no legitimate business purpose.

When this happens, or when an employee thinks it is happening, it is important to be aware of your rights. These rights vary for those in the Senior Executive Service versus those in the General Schedule or in other pay systems.

SES rights include a 60-day notice before the geographic assignment occurs, and the agency is obliged to consult with the senior executive before the notice is issued. Unfortunately, senior executives have almost no other rights when it comes to refusing the geographic reassignment. The SES adverse action statute states that a senior executive can be removed from federal service for failure to accept a geographic reassignment.

The Merit System Protections Board’s (MSPB) interpretation of the statute leaves a senior executive who is fired for refusing a geographic reassignment almost no ability to argue. Senior Executives who are geographically reassigned and who are within five years of retirement eligibility are entitled to movement of their household goods at government expense when they do retire.

Those who are not in the SES have a bit more protection. These employees may challenge the legitimacy of a geographic reassignment in two ways. First, in a decision just issued a few months ago, Miller v. Interior, the MSPB held that an employee who is geographically reassigned may argue the move does not promote the efficiency of the service. The second method is to specifically attack the bona fides of a reassignment order.

In Miller, the employee was reassigned to a newly created job in a distant part of Alaska from her old job, also in Alaska. The employee refused the reassignment and was fired, creating two vacancies to be filled. The board’s opinion was that this did not promote the efficiency of the service and was an invalid reassignment. The employee got her job back.

The Miller decision significantly broadens an employee’s ability to challenge an unwanted directed reassignment. It will certainly cause agencies to carefully consider using such reassignments to deal with perceived personnel problems.

There are various ways to challenge the bona fides of a directed reassignment. For example, the employee may show that he or she is unqualified for the new job or so overqualified that the move does not serve a legitimate business reason. Or, the employee may show the position remained vacant for years and there had been no plans to do the work of the position in the new location.

Essentially, anything that causes the reassignment to look “fishy” can be an argument that the geographic reassignment is designed for an improper purpose.

An employee who accepts a directed reassignment is entitled to reimbursement of expenses. Some of these expenses, such as payment for household goods shipment, are required. Other programs are more generous and include assisting the employee with selling the old house. If you are reassigned, check with the office at your agency that handles relocations and determine in advance your entitlements.

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