Beginning with the release of the president’s budget proposal, federal workers have been talking and worrying about downsizing. It is a reasonable concern. While worrying may be OK for some folks, others want to know more. They want to know what their rights are in a RIF, what to expect if their agency decides to offer Voluntary Separation Incentive Payments (VSIP) and Voluntary Early Retirement Authority (VERA), otherwise known as buyouts and early retirement.
I am going to answer some of those questions, but I also want to share some information about what you can do now to have a bit more control over your own circumstances.
What happens if my agency offers VERA/VSIP? There are several things to remember about these. First is that although they are almost always discussed as though they have to happen together. That is not accurate. An agency can offer either VERA or VSIP, or both. The decision to offer both usually means the agency needs a bigger staff reduction than it thinks it can get with either alone. Second, VERA and VSIP are most often not offered to an entire agency, or even to all types of jobs. Agencies are supposed to determine where they need to downsize, then tailor their VSIP/VERA offering to the types of jobs that they need to reduce or that will produce vacancies where they can place people who are in excess jobs. If your agency offers buyouts to a part of the workforce that does not include you, there is virtually nothing you can do to force them to expand the offering. You have no right to VERA/VSIP. Third, VERA/VSIP offers are usually time-limited. That means you may be told about the offer and given a relatively short time to respond. I wrote about VERA/VSIP in more detail in an earlier post that you can find here. Fourth, If your agency has not offered VERA/VSIP, but might in the coming months or next year, that is good news. It means you have time to make financial decisions now. Can you afford to retire? Do you know what you will do next? Make those decisions now when you have time to be thorough, rather than later when you may not have enough time to make an informed decision.
If my agency may run a RIF, is there anything I can do to improve my chances? Believe it or not, for some folks the answer is yes. The reason is that your RIF placement rights are based on your service computation date (SCD), veteran preference, performance ratings, tenure group, and your qualifications. Some of those are what they are. You cannot change your veteran preference status in the next few months, nor can you change your service computation date. What you can do is make certain what your agency has in your records is correct. Service computation dates are relatively straightforward, but not if you have prior military service, or you have entered and left the federal workforce one or more times. It may be that your SCD is wrong. Take a look at your records, check the SCD, and make certain it gives you credit for every day of service. If it does not, talk to your HR office and explain the problem. The same applies to veteran preference. Having preference does no good if the records do not reflect it. This can be a particular problem if you have what is called family member or derived preference. That means your preference is based on being the widow, widower or parent of a deceased veteran, or the spouse or parent of a disabled veteran (the preference available to mothers was expanded to fathers in January 2016). If you are in one of those categories, you have to ask for veteran preference. Your agency will not know unless you tell them and provide the records to support it. They need the information before they start running a RIF. The same applies to your experience. Your official personnel folder (OPF) typically has your original job application and the most current one for the last job for which you were competitively selected. If you do what many people do and tailor the job application to the position for which you are applying, you may have left out valuable experience that will help you in the RIF placement process. Your agency will most likely give employees the opportunity to update their OPFs before a RIF, but at that point you will have to do it quickly. Better to do it now when you have time to do it and do it right. The same applies to education. Your OPF may show only the education you had when you were hired. If you have gotten a degree, completed a certification, or have other training or experience, it may not be there. If you want to add a degree, getting a transcript to document it may take time. Remember – once you have a RIF notice it is too late to add experience, education and training to your records.
What are my rights in a RIF? There is a lot of case law that lays out how RIFs are to be conducted and what an employee’s rights are. In 1980 the MSPB issued a decision (Losure v. Interstate Commerce Commission) that required agencies to prove that they have a legitimate reason for a RIF, and determined that employees have substantive rights in RIF. The reasons for RIF are in 5 CFR §351.201(a) and are defined as lack of work, shortage of funds, reorganization, reclassification due to change in duties, or the exercise of reemployment rights or restoration rights. If an agency cannot show that it meets those requirements, it cannot run a RIF. MSPB was clear that agencies should not view reorganization as a catch all reason. In fact, they said it “is not a magic word whose incantation can justify use of RIF actions to circumvent an employee’s procedural rights.” That means you have rights that the agency is responsible for honoring, including “bump” or “retreat” rights. Being placed in a vacancy is not one of those rights. Agencies can decide whether they want to use vacancies in RIF placement. Some of what the agency does may be governed by collective bargaining agreements for bargaining unit employees, or may be negotiable as part of impact and implementation bargaining.
The more you know about what your rights are, the better off you will be. If your agency is contemplating a RIF or other means of significant downsizing, make certain you look at your OPF (paper or electronic) and see that everything is accurate. That will make it easier for you (and the agency) to ensure your rights are protected.