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.

Comments

  1. T Says:
    March 4th, 2014 at 2:44 pm

    Although you don’t have control over the other aspects, some information is not always correct. Retired veterans, for example, do not receive veterans preference for RIF, but they will receive service credit for their campaign time which is also included in their RIF SCD. They should ensure they submit their SF-813s and then follow up with HR personnel to ensure it is received and processed appropriately. Although SF-813s may only give you a few extra days of service credit it could make the difference in the retention register.

    The same can be true for employees with prior federal service. Many times old personnel folders are not located and that time is not credited as it should be. Things falls through the cracks all the time. Talk to your HR folks…

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