Over the last few months, the Trump Administration has begun a massive downsizing of the Federal workforce. While some of the departures of Federal workers are considered “voluntary” – either through ordinary resignation, retirements, or the Administration’s Deferred Resignation Program – tens of thousands of employees have been informed that they will be involuntarily terminated through Reductions in Force (RIFs).
The unprecedented scale of these RIFs, as well as the way Federal agencies have been conducting them, raises significant legal questions. How are RIFs supposed to be conducted under the relevant statutes and regulations? And if those authorities are not followed, what actions can employees take? This blog post provides basic answers to these questions to help Federal workers understand their options.
Agency Responsibilities in a RIF
In general, Federal agencies may proceed with a RIF for several reasons, including lack of work, shortage of funds, reorganization, and erosion of duties. But if they do so, they are required to follow detailed regulations that set out how the RIF must be conducted and to ensure those rules are uniformly and consistently applied.
Of the many requirements, there are a few that stand out as areas in which Agencies may not be in compliance:
60-Day Notice: The Agency must provide each affected employee with written notice of the RIF at least 60 days before the effective date of the RIF. This can be shortened to 30 days, but only if there were “unforeseen circumstances” that required a shorter time period.
Content of Notice: The notice must include certain specific information, including:
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- the action to be taken, the reasons for the action, and the effective date;
- identification of the employee’s “competitive area,” “competitive level,” tenure subgroup, service date, and three most recent performance ratings of record from the last four years;
- where the employee may review the regulations and relevant records;
- information on reemployment rights and how to register for priority of reemployment;
- notice of the employee’s right to appeal or grieve the decision; and,
- if a lower-standing employee was retained in the same competitive area, the reasons why the lower-standing employee was retained.
If a RIF notice lacks any of this information, it is deficient and may be subject to legal challenge.
Access to Records: An employee who receives a RIF notice has a right to inspect the relevant records and information the Agency relied on in conducting the RIF, including documentation on how the competitive area was defined and the relevant retention register. Failure to provide this access upon request is unlawful.
Definition of Competitive Area: Prior to the RIF, the Agency must establish “competitive areas” in which employees will compete for retention in the event of a RIF. There are several requirements:
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- Competitive areas must be defined according to the Agency’s organizational units and geographic location.
- While there is no minimum or maximum number of employees in a competitive area, the minimum area is “a subdivision of the agency under separate administration within the local commuting area.” Some courts have interpreted this to mean that the head of that competitive area must have the authority to hire and fire employees and abolish positions within the competitive area.
- Competitive areas must be separately organized and clearly different from other organizational units regarding operations, work function, and personnel management.
- Competitive areas must have been in effect for at least 90 days before the effective date of the RIF, and any changes to a competitive area within 90 days of the effective date need to be approved by OPM.
If an agency fails to meet any of these requirements, the competitive area may be improper and subject to legal challenge.
Liquidation of Competitive Area: If all positions in an entire competitive area are eliminated – which is the most common approach we have seen in the RIFs under this Administration to date – the regulations still require the Agency to release employees in the same order otherwise required: by group in inverse order of retention standing.
Transfer of Functions: If an agency is transferring a function from one competitive area to a different competitive area, the Agency must transfer all employees identified with the function to the competitive area gaining the function without any change in the employees’ tenure or employment, before conducting the RIF.
How to Appeal a RIF
A civilian employee in the executive branch who has received a RIF notice and believes the RIF was not conducted properly may have the right to appeal. There are multiple possible avenues for the appeal, depending on the specific facts, but it is important to make an informed decision—once an employee appeals, they are likely stuck in that forum.
Union grievance: If you are in a bargaining unit, and the collective bargaining agreement that governs your unit does not exclude RIFs from its grievance process, you likely will need to challenge the RIF through your union grievance process. We recommend consulting your union on specific requirements for such a grievance as soon as possible.
Merit Systems Protection Board (MSPB): If you are not a member of a bargaining unit, or you are and your collective bargaining agreement excludes discussion of RIFs, the correct avenue is likely filing an appeal with the MSPB. This appeal must be filed within 30 days after the effective date of the RIF (e., the date of separation, not the date the RIF notice was issued). Further information for filing at the MSPB is available here.
Less common options: If you believe that you were the subject of a RIF as retaliation for whistleblowing, another option for appeal may be the Office of Special Counsel. Further, if you believe that you were subject to a RIF because of discrimination on the basis of a protected characteristic, you may be able to file with the Equal Employment Opportunity Commission.
If you need legal advice or representation regarding a RIF, KCNF may be able to help; you can contact us here for a consultation. In addition, the Federal Workers Legal Defense Network has a number of free resources available to Federal workers, including screening conversations and consultations with volunteer attorneys.