Ask The Lawyer

By Debra Roth

Reduction in Force: Really?

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When I took over this column late last year, I opined that in 2014 I would be writing about the legal mechanics of a reduction in force (RIF), as many of us in the federal community expected that agencies would be forced to move from furloughs to RIF’s because of sequestration. That expectation seemed to change in December, when Congress reached a budget agreement that mitigated much of the sequester. Notwithstanding, a few weeks ago OPM announced it was conducting a RIF, and that may foreshadow what to expect from other agencies regardless of whether an agency has had its sequestration level lifted. So it seems appropriate to talk a little, for now, about RIF’s.

Under regulations issued by the Office of Personnel Management (OPM), a reduction in force is authorized for lack of work, shortage of funds, insufficient personnel ceiling, and reorganization. In the 1990s, we saw RIFs based on reorganizations. If RIFs are going to be conducted in 2014, expect it to be based on funding decisions. When a RIF is conducted, it is essentially an internal competitive process among employees based on rank, tenure and performance. The manner in which the competition occurs is rather mechanical with little discretion left to your employing agency, except for the decision on whether to run a RIF in the first instance. Aside from that decision, conducting a RIF is a mechanical process based on objective information, which makes it essential that your agency use the correct data on you because any error on any employee affected by a RIF will likely cause a ripple effect.

There is some jargon attached to the process. The “scope of competition” in a RIF is set by a “competitive area” and “competitive level.” The competitive area is the agency’s organizational unit within a geographical location undergoing the RIF. For example, that could be the headquarters unit of the Office of the Chief Information Officer. Once the competitive area has been defined, the agency sets the competitive levels within the competitive area, which consists of all positions within the competitive area that are in the same grade and classification series, “and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that an agency may reassign the incumbent of one position to any of the other positions in the level without undue interruption.” In sum, an agency determines the geographic location of the work unit to be subject to the RIF, identifies all positions in that unit, and then places the employees in those positions into in each competitive level and onto a “retention register” from which it is determined who shall stay and who shall be let go.

Your standing in the retention register for your competitive level is determined again by OPM regulation. Per OPM, your order of retention is determined on the basis of your tenure of employment, veteran preference status, length of service, and your most recent three performance ratings of record received during the four year period preceding the issuance of the RIF notice. You are assigned points for each of these factors, added up, and then given a retention standing from which you will then compete with the other employees for a position.

As you can see, other than your performance ratings, you have no control over affecting your retention standing. It is for that reason that I write now about the possibility of RIF’s, so that you have time to ensure your personnel file correctly reflects your last three annual ratings of record, or to obtain a rating of record not already issued.

If 2014 brings about RIFs, I’ll write about how RIFs are challenged at the Merit Systems Protection Board, and what you can expect from appealing a RIF decision.

Q & A Session: Supporting Evidence for the Use of Sick Leave

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Q:

When I request time for a sick day, I complete the appropriate form and submit it to my manager for approval. My manager drills me with a series of questions, such as why I want off? What is the nature of the illness? Why do I need half the day for the appointment? When was the appointment made? How much information do I have to supply to my manager in regards to my sick leave?

A:

An agency may grant sick leave only when supported by administratively acceptable evidence. For absences that exceed 3 days, or for a lesser period when determined as necessary by an agency (i.e. a finding of a pattern of abuse of leave use), an agency may require a medical certificate or other administratively acceptable evidence. According to OPM’s website, an agency may consider an employee’s self-certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence. Employees should consult their agency-specific human resources guidance and review applicable policies set forth in collective bargaining agreements for information specific to their agency.

This response is written by Maria N. Coleman, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Limits of ‘Consent to be Searched’ Signs

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Q:

I work at the Pentagon. There are many signs that say something along the lines of “all those entering the building consent to be searched.” What are the limits of that? This morning, Pentagon police with surgical gloves were conducting pat down searches of random people. While I don’t mind walking through a metal detector, I do have an issue with someone laying hands on me.

A:

The majority of the time, entry screening at the Pentagon will consist of less invasive methods: walking through a metal detector or having hand-carried items searched, for example. However, at times when force protection conditions are escalated to higher levels, random screening measures may intensify.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask The Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask The Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Contractor Creating Hostile Work Environment

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Q:

What do you do when a contractor creates a hostile work environment for a federal employee? Should the federal employee file a complaint with the contractor’s company?

A:

As a federal employee, it is the federal government which has an obligation to keep you free from a hostile work environment. If you wish to file a complaint, you should file any complaint you have with your agency’s EEO office. The contractor’s company also may take action on its own, for example by distinguishing your complaint and subsequently  transferring or firing the employee.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask The Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask The Lawyer’s author is created by the transmission of information to or from this site.