Federal Sector Reductions In Force (RIFs)
Through no fault of their own, federal workers may face possible termination due to a Reduction in Force (RIF) within their agency.
Put simply, a RIF allows the federal government to terminate workers when budgets shrink, duties change, or entire programs are reorganized. The decision of which employees the agency will retain and which it will terminate must follow a set of regulations contained in Title 5 C.F.R. Part 351. If they make mistakes or disregard the law, the experienced federal employment attorneys at Capovilla & Williams can provide advice and guidance. Call us at 866-951-0466 or contact us online today.
These federal regulations stipulate that agencies must categorize and rank employees based on a set of criteria outlined in the statute, with lower-ranking employees subject to termination. Additionally, employees may “bump” more junior employees and transfer to their positions. Ranking criteria include such things as length of service, veteran’s preference, and performance. When federal agencies fail to follow these regulations, some federal employees are unable to compete effectively for remaining positions.
How Are Employees Grouped and Ranked?
Under Title 5, C.F.R. Part 351, agencies seeking to RIF employees must first define a competitive area and then group employees into competitive levels. The agency must then rank employees within each competitive level.
What Are Competitive Areas?
Under federal regulation 5 C.F.R. § 351.402, federal agencies must establish competitive areas in which employees can compete for retention opportunities. This competitive area may be an agency office or location, or may involve an entire organizational subgroup. The Office of Personnel Management (OPM) has directed agencies to define competitive areas only in terms of geographical location or organizational subgroup.
How Are Positions Grouped?
The agency must then establish competitive levels, which are groupings of all positions in a competitive area at the same grade and classification series. Positions within the same competitive level must have similar duties, qualifications, pay, and working conditions. This allows the agency to reassign employees within a competitive level under 5 C.F.R. §351.403(a)(1).
Creating Retention Rankings
Within each competitive level, the agency must create a retention register or a ranking of each employee subject to the RIF. To complete this ranking, the agency must use four criteria: tenure of employment, veteran’s preference, length of service, and performance rating. Due to the complexity of ranking employees on multiple criteria, the retention register process is prone to error and misclassification. Workers are often misclassified during RIFs, resulting in a lower retention ranking and making termination more likely.
What are Bump and Retreat Rights?
Competing employees released from a competitive level may have the right to “bump” staff in a lower-retention tenure group or lower subgroup. This means experienced employees can maintain employment by taking over a lower-level position. They may also be able to slide back into a job they held previously, which is “retreating.”
Limits on Bump and Retreat Rights
Bump and retreat rights are helpful for long-term career employees with broad work histories. But there are limits on bump and retreat rights — you can’t swap into a job unless you meet the qualifications. Further, a worker typically will not move to a job more than three grades lower, with some exceptions.
RIF Alternatives
Agencies are sometimes able to transfer employees to other available positions without using the RIF procedures. This reassignment of employees can allow agencies to retain critical employees or those with rare skill sets. The agency will laterally transfer the employee to a vacant position not subject to the RIF, and eliminate the now-vacant position. Employees who know their positions are vulnerable in a reduction in force may wish to look around for a secure position to transfer into.
RIF Appeals
Under federal regulations, “an employee who has been furloughed for more than 30 days, separated, or demoted by a reduction in force action may appeal to the Merit Systems Protection Board” (5 C.F.R. §351.901). Employees may appeal if they believe that the agency failed to follow proper procedures or regulations. Released employees must submit appeals within 30 days of the effective release date.
How to Challenge a RIF
The agency must follow regulations and procedures to conduct a lawful RIF under 5 C.F.R. Part 351. If an agency fails to correctly apply standards or commits other errors, the employee may be successful challenging the RIF. The following are ways in which federal employees have successfully challenged their release under a federal RIF:
- Lack of Notice or Harmful Procedural Error
The agency must give all employees subject to a possible RIF notice, correct rankings, and lawful bump and retreat rights. Agencies often miscalculate retention rankings, use incorrect service dates, or fail to inform employees of their rights.
- Retention Ranking Incorrectly Applied
Retention rankings are based on veterans’ preference, length of service, and recent performance ratings. Veterans in particular are often not given correct rankings because of failure to note service-related disability or other preferences. If your retention ranking is not right, you have a right to appeal.
- Mistakes Involving Bump/Retreat Rights
These rights, which can result in tension between former colleagues, are often mishandled. These rights are complicated, and the distinction between permanent and term positions can result in errors and mistakes.
- Manipulation of Competitive Area Definition
Like gerrymandering in voting areas, it is possible to define a competitive area so narrowly, the outcome of the RIF is predetermined before the rankings are completed. An employee subject to a narrow competitive area cannot fairly compete for retention. This may form the basis of an appeal of the RIF.
If you are involved in an agency RIF, and are concerned that the agency committed an error, contact an experienced federal employment attorney quickly. As with all federal employment rights, strict time limits apply.
Immediate Actions for Your Financial Well-being
If you are terminated during a RIF, you will need to make some immediate decisions and actions for your financial health. These include:
- Severance Pay: This will vary depending on your tenure, length of service, age, and other factors. Discuss with your agency representative prior to your departure.
- Unemployment Benefits: If you are terminated, you have the right to apply for and receive unemployment benefits through your state’s system.
- Health and Life Insurance: Your coverage will not stop immediately. As you seek a new position, you may wish to explore other options, such as the insurance marketplace.
- TSP and Retirement: Discuss your options regarding retirement before you depart from the agency. Make sure you understand your position and you have a plan for handling your investments and retirement accounts.
You may wish to discuss financial matters with a financial professional, who can help you make decisions concerning investments and retirement issues.
Placement Programs That Can Help
If you’re facing a RIF, three federal programs can give you priority access to job openings before they’re posted to the general public.
CTAP (Career Transition Assistance Plan): Priority Within Your Agency
CTAP helps you get priority for jobs in your own agency. If your position is cut, you don’t have to start from scratch. When your agency posts a vacancy, it must look at qualified CTAP applicants before considering other applicants.
ICTAP (Interagency Career Transition Assistance Plan): Priority Across Agencies
ICTAP opens doors in other agencies. ICTAP gives you priority consideration there, too, as long as you meet the qualifications. This allows you to carry your preference with you in your job hunt outside your prior agency.
RPL (Reemployment Priority List): First in Line for Rehire
RPL increases your priority for consideration for rehire. If your agency has openings that match your skills and grade, they must pull your name from the RPL before they post the job publicly.
If you decide to continue employment in the federal sector, these programs can help you find a new position.
Common Questions Concerning RIFs
- Will this show on my SF-50?
It will. The form will note your separation or reassignment. Keep it — it’s essential proof for future actions. - Can the agency modify or disregard federal regulations regarding RIFs?
The agency must follow federal regulations. If they fail to do so, you should talk with an experienced federal employment attorney. - Does veteran preference beat performance?
In a federal workforce RIF, veteran preference typically takes precedence over performance ratings. The government ranks employees by how long they’ve been in federal service (their tenure) and by their veteran status, then looks at service length in the agency and performance scores. Even if a worker without a veteran’s preference has stellar reviews, a veteran will likely be ranked higher. This is particularly true if the veteran in question has a service-related disability. At Capovilla & Williams, we are here for our veterans and will fight to ensure that they have proper ranking in a RIF.
How Capovilla & Williams Can Help
Capovilla & Williams is dedicated to representing military members, veterans, and federal workers. We are committed to seeing that our federal workforce is treated fairly and in compliance with the law. We have a deep knowledge and understanding of federal sector issues, including RIFs. If it feels like you are fighting for your professional life, let our attorneys do the fighting for you. We are not afraid of a fight. Call us at 866-951-0466 or contact us online today for a free initial consultation to discuss your situation.
