Welcome back to our series on RIFs in the Trump era. If you missed Part One of the series explaining what RIFs are, click here to read. Today we will focus on appeals and grievances of RIF decisions. Don't forget to come back on Friday, where we will focus on reemployment rights after a RIF.
Who can appeal a RIF?
An employee has a right to appeal a RIF decision or a furlough that lasts more than 30 days to the MSPB. An employee who voluntarily retires pursuant to a RIF may also appeal their retirement if it is based on misleading or inaccurate information.
Who cannot appeal a RIF?
An employee in a bargaining unit covered by a negotiated grievance procedure must use the negotiated grievance procedure and may not appeal to the MSPB so long as the procedure does not exclude RIFs. Similarly, an employee who voluntarily accepts another position as part of a RIF may not appeal to the MSPB. Government contractors ordinarily do not have the right to appeal a RIF decision to the MSPB.
The agency's burden
On appeal, the agency has the burden of proving that it invoked a RIF for a legitimate reason specified in 5 C.F.R. § 351.201, which includes:
- Lack of work
- Shortage of funds
- Insufficient personnel ceiling
- The exercise of reemployment rights or restoration rights
- Reclassification of an employee's position due to erosion of duties
The agency also bears the burden to show that it properly followed RIF regulations by properly defining the competitive level and competitive area.
An employee who successfully appeals a RIF decision may be entitled to reinstatement, backpay and other benefits, and reasonable attorney's fees and costs. Have you been improperly removed pursuant to a RIF? Call Alan Lescht and Associates, P.C. at (202) 536-3315, or email Alan today.
Don't forget to check back in on Friday for Part Three of our series, RIFs in the Trump Era!