Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
Can an employee in a higher grade level with a lower competitive level bump or displace an employee in a lower grade level with a higher competitive level in a reduction in force?
A:
“Bumping” is unavailable because you may only bump employees in lower tenured groups than you, rather than vice versa. However, you may be entitled to “retreat” rights, which means that you could displace an employee on a different competitive level only if: (1) the employee with lower retention standing is within your own tenure group and subgroup; (2) the employee is not more than three grades lower than your position, unless you are in a special category of disabled veterans which allows up to five grades; and (3) the employee is in the same or essentially identical position as you, which takes into account whether you share the same grade or classification series, duties, qualification requirements, pay schedules and working conditions. There is one caveat: if you have a current annual performance rating of record of minimally successful, then your retreat rights are limited to positions held by employees with the same or lower performance rating of record. I do not have enough facts to answer whether you are actually entitled to retreat rights, but you will need to apply all of the facts in your situation against this standard to make your own determination and then raise this with your agency.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
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