The Trump administration is proposing steep cuts to non-defense spending. For many agencies, that could mean staffing cuts. The agencies targeted for cuts include the Environmental Protection Agency and the State, Labor and Agriculture departments. For employees in the crosshairs, we offer the following brief tutorial on reductions in force—RIFs—executive branch-style.
When a federal agency is forced to eliminate positions due to a loss of funding, there are steps it can take before a RIF occurs. Agencies sometimes use management-directed reassignments to move employees into existing vacancies or to reorganize to minimize the damage. When programs are moved from one agency to another, “transfer of function” regulations apply and are supposed to ensure that the employees transfer with their work, if that work was not previously performed in the gaining agency. Employees may still end up subject to a RIF at the new agency, but they have the opportunity to compete with employees at the receiving agency instead of seeing their jobs eliminated preemptively. Agencies historically have offered buyouts prior to conducting RIFs, to reduce the number of employees involuntarily affected by reductions.
In the worst case scenario, when RIFs occur, Title 5 employees will generally be entitled to due process in the form of procedures outlined by OPM. OPM has helpfully issued a new “Workforce Reshaping” guide that describes the rules agencies must follow when conducting a RIF. These include the requirement that impacted employees be ranked for retention in tenure groups based on their seniority, veteran’s status, and performance history. Commuting areas will also come into play. In some instances, even where an employee’s current position will be eliminated, they may have assignment rights, i.e. the ability to “bump and retreat,” by displacing a lower-graded employee with lower retention standing in a position for which the higher-graded employee is qualified. Essentially, RIFs are not supposed to take out entire workforces but instead should proceed in an orderly manner based on the retention standing of the impacted employees until the agency is able to get down to the desired headcount.
The government also is supposed to help affected employees find other available federal jobs, through the Career Transition Assistance Program (CTAP) before a separation occurs, and through the interagency Career Transition program (ICTAP) after separation. It is unclear, however, whether these programs can play nicely with the current hiring freeze.
Union contracts may provide for more notice and better options in a RIF, so join while you still can. Employees impacted by a RIF can appeal to the MSPB if their agency does not accord them all of their rights.
Nobody wants to be RIF’d, but there are laws on the books aimed at making federal reductions in force relatively humane. Of course anyone who finds themselves subject to a RIF action might feel otherwise.
Heather White is a partner in the Federal Practice Group, where she specializes in federal sector employment litigation.