“Special” Government Employee Elon Musk has again threatened Federal employees to accept his offer of “deferred resignation” or otherwise potentially face their positions being abolished through a reduction-in-force. In fact, in attempt to further persuade Federal employees to accept his unenforceable, unilaterally revocable, and legally questionable deferred resignation offer, yesterday many departments and agencies offered their employees Voluntary Early Retirement Authority (VERA), but only if they accept the offer of a deferred resignation. In a previous post we discussed why that offer lacks consideration and should be rejected. What follows is a brief discussion of career Federal employees’ rights if their position is abolished through a RIF or transfer of function.
NOTICE: Department and agencies must follow OPM’s RIF regulations at 5 C.F.R. Part 351 before releasing a competitive service employee by furlough for more than 30 days, separation, demotion, or reassignment, as a result of a RIF. Each competitive service employee selected for release from a competitive level is entitled to a specific written notice at least 60 full days before the effective date of release. 5 C.F.R. §§351.801 & .803. In accordance with 5 C.F.R. 351.802(a) that notice must include: information on reemployment rights and the employee’s right to appeal the action to the U.S. Merit Systems Protection Board.
BUMP & RETREAT RIGHTS: In general, before an agency may furlough or separate a competitive service employee, it must first offer assignment to another competitive position which requires no reduction. A released employee has the right to “bump” a lower tenure group employee from his position if it is no more than three grades below the position from which the employee is released. 5 CFR § 351.701 (c). Further, a released employee has a right to retreat to a position held by another employee with lower retention standing if the other employee holds a position that is the same or “essentially identical.” Schucker v. Federal Deposit Insurance Corporation, 401 F.3d 1347 (Fed. Cir. 2005); 5 CFR § 351.701 (c).
SEVERANCE PAY: 5 U.S.C. § 5595 and 5 C.F.R. Part 550, Subpart G (5 C.F.R. §§ 550.701-.714) authorize severance pay for full-time and part-time career- or career-conditional appointment employees who are involuntarily separated from federal service due to a RIF or for declining a management directed geographic reassignment if not subject to a mobility agreement.
REEMPLOYMENT PRIORITY RIGHTS: In accordance with 5 C.F.R. § 330.201(a), agencies must give Reemployment Priority List (RPL) candidates (i.e., former competitive service employees who were separated by a RIF) priority over outside job applicants. Once an employee registers on the RPL, she is entitled to priority placement when a vacancy in the agency arises. Rasing v. Department of the Navy, 444 F.3d 1349 (Fed. Cir. 2006). Each agency must maintain an RPL and establish guidelines for the operation of its RPL. 5 C.F.R. §§ 330.201- 330.214.
DISCONTINUED SERVICE RETIREMENT: If you are eligible for a VERA (i.e., 50 years old with 20 years of service or any age with 25 years of service), then you are eligible for a discontinued service retirement if you are involuntarily separated through a RIF or for declining a management directed geographic assignment if not subject to a mobility agreement. 5 U.S.C. § 8336 (d); 5 U.S.C. § 8414 (b); 5 C.F.R. § 842.206.
REMEMBER: BEING INVOLUNTARILY SEPARATED DUE TO A RIF OR FOR DECLINING A MANAGEMENT DIRECTED GEOGRAPHIC REASSIGNMENT IS NOT A MORAL FAILING.
The legal information contained in this document is of a general nature and is subject to change; it is not meant to serve as legal advice in any particular situation. The law is in a constant state of change as Congress amends or passes new statutes, Federal agencies issue new regulations and courts issue new interpretations of the law. THE JEFFREY LAW GROUP, PLLC does not guarantee the accuracy of the legal information in this document. THE JEFFREY LAW GROUP, PLLC recommends you consult a licensed attorney of the firm who is knowledgeable about the area of law in question before you take action to address a legal matter: www.jeffreylawgroup.com or 202.312.7100.