Q & A Session – Ranking Employees Within Same Grade
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.
There are rumors that my agency will soon reorganize, and I am concerned that I may be affected by a reduction in force (RIF). How would an agency rank three employees for retention if they are all GS employees of the same grade but with different steps and time-in-grade? Two employees have prior military service and one is receiving a military retirement.
According to 5 C.F.R. § 351.501, there is a four-tiered structure for determining retention priority during a reduction in force.
The first tier to be considered is tenure, which has three classification groups. Tenure Group I, the group with the highest retention priority, includes career employees and certain managerial employees serving their probationary period. Employees who transferred from the legislative or judicial branches under 5 U.S.C. § 3304(c), scientific or professional employees appointed under 5 U.S.C. § 3104, administrative law judges, probationary employees who acquire competitive status and employees who can show substantial evidence that they are entitled to career tenure and whose cases are pending final resolution before the Office of Personnel Management are also included in this group. Tenure Group II includes career-conditional and probationary employees. Tenure Group III, the lowest priority for retention, includes employees working under indefinite or temporary appointments.
I believe the employees you have described are all included within Tenure Group I. Accordingly, you would then turn to an analysis of tier two: veterans’ preference. Preference eligible veterans who have a compensable service-connected disability of thirty (30) percent or more will receive the highest retention preference. All other preference eligible veterans will be of intermediate priority, while nonpreference eligible employees hold the lowest retention priority in tier two. For these purposes, retired members of the armed services are usually not eligible for veterans preference unless retirement is based on a disability received in combat or caused by “an instrumentality of war” during a period of war, or the veteran’s retirement was based on less than twenty (20) years of active service. Some nuances may impact those who retired at the rank of Major or above (or equivalent) – please review 5 C.F.R. § 351.501(d)(4) and (5) to review the rules affecting such retired officers.
If the question of retention is still “tied” after an analysis of the tiers one and two, length of service will serve as the determining factor. In the unlikely event that the matter is still unresolved after evaluating the first three tiers, the fourth tier, job performance will serve as the decisive criterion. Please note that these rules are for employees in the competitive service; employees in the excepted service are governed under 5 C.F.R. § 351.502.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
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