We have not heard much about reductions in force (RIFs) in recent years, but expect a comeback soon as the executive branch copes with budget cutbacks, reorganizations and elimination of some programs. Employees who are separated or demoted because of a RIF have a right to file an appeal with the Merit Systems Protection Board. This column addresses the things that management can do to lose a RIF appeal.
A RIF is a highly technical creature. It does not allow for much discretion. Instead, once it’s decided that a RIF is necessary, an agency must establish what are called competitive areas and competitive levels. Retention registers are developed by listing employees in the order of their retention standings in those competitive areas and levels, and employees “bump” and “retreat” until the RIF is complete — with some employees losing their jobs or being demoted. A separated employee may be entitled to severance pay or discontinued service (early) retirement. A demoted employee is entitled to grade retention for two years and pay retention indefinitely.
Because a RIF is so technical, an agency should be able to go mechanically through the process and survive any MSPB appeal. But it is not that easy. The technical aspects are difficult to understand and should be undertaken by a human resources specialist who is experienced in the RIF process. Otherwise, it is easy to make a mistake.
Keep these basic principles in mind to minimize the likelihood of a successful RIF appeal:
A RIF cannot be personal or used as a pretext to take adverse action against a problem employee. An agency has authority to conduct a RIF because of a lack of work, shortage of funds, insufficient personnel ceiling, reorganization, the exercise of re-employment rights or restoration rights, or the reclassification of a position due to erosion of duties. If one of these conditions exists, MSPB will not dig deeper. However, MSPB will more closely scrutinize a RIF if evidence exists indicating the RIF is personal.
It is permissible to release a problem employee as a result of a RIF as long as that is where the process takes the agency. Because employees’ competitive standings in a RIF include performance appraisal ratings, it is likely that a problem employee would be released in a RIF. What is not permissible is to manipulate the process to obtain a predetermined result. Avoid an e-mail that says: “In doing this RIF, I really want to keep Jane, but Tom needs to go.”
Respect veterans preference. Preference-eligible veterans are in the highest category for retention and, among them, disabled veterans are at the top. Preference-eligible rules can be tricky, so make sure they are followed.
Define competitive levels carefully. A competitive area is the geographic location encompassing the RIF, but the real competition takes place in the competitive level. A competitive level contains all jobs at the same grade level and job series that are similar. The agency has some discretion in defining a competitive level, and one-person competitive levels have been upheld by MSPB. An employee who believes an action is personal may challenge the legitimacy of a competitive level by claiming it has been drawn too narrowly.
Understand “bump” and “retreat” and the different RIF protections for competitive-service and excepted-service employees. Bump and retreat only apply to competitive-service positions. Bumping is when you move to a lower group to avoid being released, but bump another employee in the process. Retreating is going back to a job you once held, displacing the incumbent. The rules are highly technical and provide a good place for a misstep in a RIF.
This discussion is not an exhaustive explanation of RIF rules. It is a starting point for an agency’s success in a RIF. Failure to follow these principles greatly increases the chances of losing a RIF appeal.