Presentation on theme: "REDUCTION IN FORCE RIF: A Practitioner’s Guide. WHAT IS A REDUCTION IN FORCE? Reduction in Force (RIF): The term used for the release of an employee from."— Presentation transcript:
REDUCTION IN FORCE RIF: A Practitioner’s Guide
WHAT IS A REDUCTION IN FORCE? Reduction in Force (RIF): The term used for the release of an employee from his/her competitive level by furlough of more than 30 days, separation, demotion, or reassignment requiring displacement, when that release is required because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee's position due to erosion of duties when such action will take effect after an agency has formally announced a reduction in force in the employee's competitive area and when the reduction in force will take effect within 180 days.
Simply put, when the government has a layoff, RIF procedures determine who stays, and who goes. WHAT IS REDUCTION IN FORCE?
RIF COMPETITION Who competes in a RIF? How does the competition work?
RIF COMPETITION A RIF takes place in a specific piece of one agency. A specific group of employees compete with each other.
COMPETITIVE AREA Part of an agency in which employees will compete. (It may be all or part of the agency.) Defined in terms of organizational unit(s) and geographic location. The smallest is a subdivision of an agency under separate administration within a local commuting area. See 5 CFR
COMPETITIVE AREA = THE BIG BOX No RIF HereNo RIF Here RIF Here
COMPETITIVE LEVEL The specific positions within the competitive area that compete with each other during a RIF.
COMPETIVE LEVELS within a COMPETIVE AREA No RIF Here No RIFHere RIF Here No RIF Here
COMPETITIVE LEVEL All positions in the competitive area which are in the same: Grade or level Classification series
…and similar enough in duties qualification requirements pay schedules working conditions that an incumbent in one position could be reassigned to any other position in the level without undue interruption. COMPETITIVE LEVEL=
Competitive level determinations are based on the employee’s official position, not personal qualifications. COMPETITIVE LEVEL
There must be separate competitive levels, according to: 1. Service (i.e., Competitive, Excepted); 2. Appointment Authority; 3. Pay Schedule; 4. Work Schedule (i.e., full-time, part-time, intermittent, seasonal, or on-call) 5. Trainee Status COMPETITIVE LEVEL
RETENTION FACTORS Within a competitive level, employees are ranked according to the four factors mandated by law (5 U.S.C. 3502): 1.Tenure of Employment 2.Military Preference (also called Veterans preference) 3.Length of Service 4.Efficiency or Performance Rating
RETENTION FACTOR: TENURE Employees are grouped according to their type of appointment: Group I:Career employees who are not serving a probationary period Group II:Career employees who are serving a probationary period or have less than three years under a competitive appointment (Career Conditional) Group III:Employees with term or indefinite appointments or TAPER 5 CFR (b)
NOTE: An employee with a temporary appointment limited to one year or less is not considered to be a competing employee in a RIF, unless the employee has completed one (1) year of current, continuous service under a temporary appointment with no break in service of 1 workday or more. TENURE GROUPS
In a RIF, all competing Group III employees must be released before a Group II employee can be reached. All competing Group II employees must be released before a Group I employee can be reached. TENURE GROUPS
RETENTION FACTOR: VETERANS SUBGROUPS Each Tenure Group is divided into three Subgroups: Subgroup AD: Veterans with a service-connected disability of 30% or more Subgroup A: Veterans not included in Subgroup AD Subgroup B: Nonveterans NOTE: “Veterans” includes both veterans and “Preference Eligible.”
WHO IS A VETERAN? WHO IS A PREFERENCE ELIGIBLE? These terms are defined in law at 5 U.S.C
WHAT ABOUT RETIRED MILITARY? Only certain retired members of a uniformed service is considered to be a “preference eligible.” 5 CFR (d)
RETENTION FACTOR: SERVICE Within each subgroup, employees are ranked by Service Computation Date. The employee with the most service (Seniority) is ranked at the top. The employee with the least service is ranked at the bottom.
SERVICE COMPUTATION DATE (SCD) The Service Computation Date (SCD) should reflect all creditable service: Civilian and military Consecutive and Nonconsecutive. Detailed information on which federal service is “creditable” is found in the Office of Personnel Management’s “Guide to Processing Personnel Actions.”
SCD EXAMPLE: DEBBIE Debbie entered the government on July 7, 1991 and has been employed in the same agency ever since. Debbie’s SCD is July 7, 1991.
SCD EXAMPLE: JUAN Juan worked for the government from June 7, 1986 to June 6, He left to work In the private sector and returned to federal service on January 5, Juan’s SCD is January 5, (This is the most recent entry date, with his previous 4 years added to it.)
SCD EXAMPLE: PETER Peter spent six years in the military on active duty during the 1990s. He entered the federal government as a civilian on March 13, 2004, and has been employed as a civilian ever since. Peter’s SCD is March 13, (This is the date he entered civilian service, with his six years of military service added to it.)
SCD EXAMPLE: JENIFER Jenifer entered civilian service on July 7, She left her job on April 20, 1989 to work in the private center. She returned to federal service on March 15, She left again on September 20, She returned to a federal job on November 12, 2002, and has been employed in that agency ever since. Jenifer’s SCD is July 23, (This is her most recent entry date, with 4 years, 288 days, plus 4 years, 188 days, or a total of 9 years, 112 days, added to it.)
RETENTION FACTOR: CREDIT FOR PERFORMANCE Employees receive additional service credit based upon their performance evaluations. The extra credit is based on their three (3) most recent performance evaluations during the four-year period prior to the date the agency issues RIF notices. Credit is based on an arithmetic average of the last three ratings, rounded up to the nearest whole number.
RETENTION FACTOR: CREDIT FOR PERFORMANCE If all employees in the competitive area have received ratings of record under a single pattern of summary ratings, the amount of additional credit for RIF purposes is: 20 additional years for “Outstanding” (Level 5), or equivalent 16 additional years for “Exceeds Fully Successful” (Level 4), or equivalent 12 additional years for “Fully Successful” (Level 3), or equivalent No (0) credit is given for ratings below Level 3
If employees in the competitive area have ratings of record under more than one pattern of summary levels, the agency shall establish the amount of additional service credit for each level. Is this negotiable? This is a permissive subject of bargaining. (We’ll discuss bargaining later…) RETENTION FACTOR: CREDIT FOR PERFORMANCE
If an employee received fewer than three ratings in the past four years, credit is given on the basis of the value of the actual rating(s) of record, divided by the number of actual ratings. For RIF purposes, any ratings for years an employee is not rated due to being on 100% official time is considered “missing.” Additional credit will be based on whatever ratings of record are available in the previous four years.
RETENTION FACTOR: CREDIT FOR PERFORMANCE An employee who has not received any rating of record during the four-year period shall receive credit for performance based on the modal (most common) rating for the summary level pattern that applies to the employee’s official position of record at the time of the reduction in force.
CREDIT FOR PERFORMANCE: EXAMPLES Examples – Single Rating Pattern Last 3 ratings were 4, 4, 4 Additional credit is 16 years. ( =48÷3=16) Last 3 ratings were 4, 5, 4 Additional credit is 18 years. ( =52÷3=17.3, rounded up =18)
CREDIT FOR PERFORMANCE: EXAMPLES Last 3 ratings were 3, 2, 4 Additional credit is 10 years =28÷3=17.3, rounded up =18 Only 2 ratings found; 3,4 Additional credit is 14 years 12=16=28÷2=14
Bureau of Important Government Services Special Projects Branch Retention Register Worksheet - EXAMPLE NameTenureSCDPerformance Ratings Date in Agency Additional Service Credit Adjusted SCD Rank JaneI-A3/12/19944,4,44/12/2006 DanI-A7/25/20043,3,37/25/2008 TamaraI-B8/10/20025,5,411/3/2006 LouI-AD2/12/19963,4,49/8/2003 SteveI-A10/4/20014,410/4/2009 AliI-B4/4/20025,4,42/12/2008 WandaI-B6/25/19844,2,56/25/1984 GeorgeII-A12/7/ /7/2010 JessieI-B4/4/19963,3,34/4/1997 MariaI-B8/10/19964,4,45/8/2000
NameTenureSCDPerformance Ratings Date in Agency Additional Service Credit Adjusted SCD Rank JaneI-A3/12/19944,4,44/12/ /12/ DanI-A7/25/20043,3,37/25/ /25/ TamaraI-B8/10/20025,5,411/3/ /10/ LouI-AD2/12/19963,4,49/8/ /12/ SteveI-A10/4/20014,410/4/ /4/ AliI-B4/4/20025,4,42/12/ /4/ WandaI-B6/25/19844,2,56/25/ /25/ GeorgeII-A12/7/ /7/ /7/ JessieI-B4/4/19963,3,34/4/ /4/ MariaI-B8/10/19964,4,45/8/ /10/ Bureau of Important Government Services Special Projects Branch Retention Register Worksheet - EXAMPLE
COMPETITION BEGINS Once retention registers are completed, the agency is almost ready to begin competition.
BEFORE THE COMPETITION Before Competition begins, the agency must first release: Employees on a specifically limited temp. appointment in that competitive level; Employees on a term or temp, promotion in that competitive level (return them to permanent position of record); Employees who have received a written decision of removal for unacceptable performance.
COMPETITION BEGINS Round 1 Once all non-competing employees are released, employees on the retention register are released in inverse order; the lowest ranking employees are released first.
COMPETITION CONTINUES Round 2: Assignment Rights When an employee is released from a competitive level, the agency must determine if he/she has an assignment right to an available position. If so, the agency must offer the position or an equivalent one, rather than separate or furlough the employee.
ASSIGNMENT RIGHTS A position being considered for an assignment must be: In the same competitive area Last at least three months Have the same work schedule (e.g., full-time, part-time, intermittent, or seasonal) as the one from which the employee is being released.
ELIGIBILITY FOR ASSIGNMENT To be eligible for a position, the employee must: Have a performance rating of record of at least “Minimally Successful” (Level 2); and Be qualified for the position
What Do You Mean, “QUALIFIED”? Meets OPM qualification standards, including minimum education requirements Meets selective placement factors established by the agency Physically qualified, with reasonable accommodations where appropriate Meets any OPM approved special qualifying condition Has the capacity, adaptability, and special skills needed to satisfactorily perform the duties of the position without undue interruption. See 5 CFR (a)
“Undue Interruption” Defined NOTE: “Undue interruption” generally means that the employee could get up to speed in the new position within 90 days. See 5 CFR
ROUND 2 – BUMPING When released from his/her competitive level, an employee may “bump” to a position that is: Held by an employee in a lower tenure group or in a lower subgroup within the same tenure group; and Is no more than 3 grades (or appropriate grade intervals) lower than the position from which the employee was released.
ROUND 2 – BUMPING Examples: A Group I employee may bump a Group II employee. A Group IAD employee may bump a Group IA or IB employee. A Group IIA employee may bump a Group IIB employee.
ROUND 2 - RETREATING When an employee is released from his/her competitive level, he/she may “retreat” to a position that is: Held by an employee with lower retention standing in the same tenure group and subgroup; Is not more than 3 grades (or appropriate grade intervals) lower than the position from which the employee was released; and Is the same position, or an essentially identical position, previously held by the released employee as a competing employee in a federal agency (i.e., that position would have been placed in tenure groups I, II, or III).
RETREATING: AN EXAMPLE So… A Group IA GS-12 Accountant could retreat and displace a Group IA GS-9 Accounting Technician. But, that employee could not retreat and displace a Group IB Accounting Technician who has been released from his/her competitive level in a RIF.
USING VACANT POSITIONS If vacant positions are used, bumping and retreating procedures would apply.
USING VACANT POSITIONS Agencies may choose to waive qualifications (other than minimum education requirements) in offering an employee RIF assignment to a vacant position.
USING VACANT POSITIONS A RIF offer of a vacant position may only be: In the same competitive area Within 3 grades (or grade intervals) of the employee’s current position.
RIF NOTICES: TIMEFRAME Each Competing Employee selected for release from a competitive level must receive a specific written notice at least 60 days prior to the effective date of the release. The Exclusive Representative of any employees covered by the notice must receive notice at the same time as the employees.
RIF NOTICE CONTENTS Action to be taken, reason for the action, effective date; Employee’s competitive area, competitive level, subgroup, SCD, and the three (3) most recent performance ratings during last 4 years; Where records on the RIF can be inspected; Reasons why any lower-standing employees in same competitive level are being retained;
RIF NOTICE CONTENTS Information on reemployment rights; and Right to appeal the RIF action to the Merit Systems Protection Board or to grieve under the negotiated grievance procedure, as applicable.
RIF APPEALS Employees may appeal RIF actions either to MSPB or under a negotiated grievance procedure. Employees don’t get to choose the forum. That is determined by the scope of the contract’s grievance procedure.
RIF APPEALS If RIF actions are specifically excluded from the scope of the grievance procedure, then an employee may only appeal a RIF action to MSPB, and may not use the negotiated grievance procedure. If RIF actions are not specifically excluded from the scope of the grievance procedure, then an employee may only appeal a RIF action through the negotiated grievance procedure, and may not appeal to MSPB.
RIF APPEALS If RIF actions are covered by the negotiated grievance procedure, arbitrators are bound by the same precedents as applied by the MSPB. Cornelius v. Nutt, 472 U.S. 648 (1983).
BARGAINING OVER RIF Bargaining over RIF is limited by several factors: Management Rights Government-Wide Regulation Current contract (covered by)
MANAGEMENT RIGHTS 5 U.S.C (a)Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official on any agency- (2) in accordance with applicable laws- (A) to hire, assign, direct, layoff, and retain employees in the agency,or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
(b) Nothing in this section shall preclude any agency and any labor organization from negotiating- (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management official. MANAGEMENT RIGHTS
GOVERNMENT-WIDE REGULATION 5 U.S.C (a) (1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.
GOVERNMENT-WIDE REGULATION RIF is the subject of extensive government-wide regulations issued by the U.S. Office of Personnel Management (OPM). Collective bargaining proposals cannot conflict with those regulations. Note that “appropriate arrangements” do not apply if the proposal is contrary to a government- wide regulation.
GOVERNMENT-WIDE REGULATION Each agency is responsible for assuring that the provisions in this part are uniformly and consistently applied in any one reduction in force. See 5 CFR (c)
GOVERNMENT-WIDE REGULATION A RIF could affect both bargaining unit employees and those outside the unit. The rules for that RIF must apply to all equally. On that basis, the FLRA found that several proposals were outside the scope of bargaining because they tried to set conditions of employment for employees outside the union’s exclusive recognition. AFGE Local 32 and OPM, 51 FLRA 491 (1995). AFGE Local 32 v FLRA, 110 F.3 rd 810 (D.C. Cir. 1997)
GOVERNMENT-WIDE REGULATION FLRA later narrowed this ruling. A proposal that would have the effect of setting RIF rules for managers and supervisors is a permissive subject of bargaining, not a prohibited subject. Agencies may choose to negotiate over such a proposal, but it cannot be bargained to impasse. NTEU and IRS, 60 FLRA 219 (2004). Once that proposal is agreed to, it can be enforced. DLA and AFGE Local 2004, 55 FLRA 1303 (2000).
COVERED BY When bargaining in response to an announced RIF, the current contract will likely control the degree and scope of additional bargaining.
COVERED BY An Invention for Agencies to Avoid “Further” (“Midterm”) Bargaining.
COVERED BY In 1993, the FLRA invented the “covered by” framework because agencies complained they had to negotiate constantly. The test says: If a matter is “covered by” a CBA, there is no statutory requirement for management to bargain “further” on that matter with the Union during the term of the CBA. The Union had its chance to bargain, and the Agency is free to make changes without bargaining if the “matter” is covered by the [term] CBA.
COVERED BY Prong 1 : If the agreement expressly encompasses the matter, the matter is “covered by” the agreement. Prong 2 : If not, the FLRA determines whether the matter sought to be bargained is an aspect (“inseparably bound up with”) of matters already negotiated. If it is, the matter is “covered by” the agreement. The analysis under Prong 2 will, as deemed necessary, consider the parties, the bargaining history, or intent, as components of the record evidence.
COVERED BY Most contracts have at least some provision covering RIF. This could have the effect of precluding further bargaining on this subject until the next term negotiations. Check the current contract carefully.
BARGAINING FOR THE FUTURE (BftF) The Bargaining for the Future article on Reduction in Force was revised in January, 2012.
SEVERANCE PAY Eligibility for receiving Severance Pay is found in 5 CFR
SEVERANCE PAY Basic Severance Pay = One week of pay at employee’s current rate of basic pay for each full year of creditable service through ten years; plus Two weeks of pay at employee’s current rate of basic pay for each full year of creditable service beyond ten years; plus 25% of the otherwise applicable amount for each 3 months of creditable service beyond the final full year.
SEVERANCE PAY Basic severance pay is augmented by an age adjustment. Age adjustment = 2.5% of the basic severance pay allowance for each full 3 months of age over 40 years.
SEVERANCE PAY: Example 1 Tom is separated by RIF on April 5, He was a GS-9, Step 3, in the RUS Pay Locality, making $ per week. He had 6 years, 3 months, and 10 days of civilian service. His birthdate is March 5, Tom’s severance pay: $ x 6 =$5, $ x.25 =$ TOTAL = $6,062.25
SEVERANCE PAY EXAMPLE Judy was separated by RIF on April 7, At separation, she was a GS-7 step 7 in the Atlanta, GA Pay Locality, making $ per week. She had 21 years, 10 months, and 16 days of civilian service. Judy’s birthdate is August 12, 1971.
SEVERANCE PAY: Example 2 Judy’s severance pay:$ x 10 = $9, [years up to 10] + $ x 22 = $20, [2x years over 10] + $ x.75 = $ [portion of last year] Total Basic Allowance = $30, Age Adjustment =2.5% ($763.40) x 6 = $4, [quarters over age 40] TOTAL = $35,116.50
SEVERANCE PAY: Example 3 Manuel was separated by RIF on April 12, At the time of his separation he was a WG-10, Step 5 in the Las Vegas, NV Wage Area, making $1, per week. He had 33 years, 8 months, and 12 days of civilian service. His birthdate is February 24, 1961.
SEVERANCE PAY: Example 3 cont. Manuel’s severance pay:$1, x10 = $12, $1, x23 = $27, $1, x.5 =$ Total basic allowance = $40, Age Adjustment = 2.5% ($1,012.04) x 48 = $48, TOTAL = $89,059.32
UNEMPLOYMENT COMPENSATION Unemployment compensation is covered by state law. Generally, you file a claim in the state where you worked. States have different rules regarding eligibility, amount of benefits, length of time one can receive benefits, and requirements for claimants while receiving benefits.
UNEMPLOYMENT COMPENSATION CHECK WITH THE EXPERTS! Arrange to have representatives from the appropriate state unemployment agencies make presentations to employees so that they all receive correct information.
BftF Language On Unemployment 1.The Agency will arrange to have representatives of the Unemployment Insurance Agencies from all states in which employees would file claims come to the Agency and make presentations regarding benefits, eligibility requirements, and application procedures. Bargaining for the Future
BftF Language On Unemployment 2.Employees who are to be released from their competitive level will receive eight hours of administrative leave in order to apply for unemployment benefits. Bargaining for the Future
How to get back to a government Job Career Transition
Agency Career Transition Services These services provide skills and resources to help workers find other employment. It can include: Skills Assessment Resume Preparation Counseling Job Search Assistance Check your collective bargaining agreement. It may include more services the agency will provide.
Career Transition Plan Each Agency must have a Career Transition Plan The Career Transition Plan has 3 parts: 1. Agency Career Transition Services 2. Career Transition Assistance Plan (CTAP) Note: DOD uses the Priority Placement Program (PPP) 3. Agency Reemployment Priority List (RPL)
The Department of Defense (DOD) does not provide agency selection through a Career Transition Assistance Plan (CTAP). The DOD uses a Priority Placement Program (PPP) to try to place surplus employees. DOD and the Priority Placement Program (PPP)
Agencies must give priority to their own well-qualified surplus employees who apply for vacancies in the same or other agency components in the local commuting area. Agencies must notify these employees when it plans to fill any such jobs. Generally, the surplus employees have priority over any other applicant from inside or outside the agency. Career Transition Assistance Plan (CTAP)
CTAP: Requirements Competitive Service Tenure Group I (Career) or II (Career conditional) Have an official notice from the agency saying your position is no longer needed
CTAP: Who Can Participate? Surplus or displaced employees At least Fully Successful Rating Occupy a position in the same commuting area Apply for a specific vacancy at or below current grade, with no greater promotion potential Meet the application deadline for the job Be found “well qualified” for the job
CTAP: Who Is “Displaced” Competitive Service Tenure Group I (Career) or II (Career conditional) Have an official notice from the agency saying that you will be separated by Reduction in Force
CTAP: What Is “Well Qualified” Meets qualification standards and eligibility requirements for the position, including any medical qualifications, suitability, minimum education requirements, and experience Meets selective factors Meets either quality ranking level set by agency, or rated above minimally qualified by agency Physically qualified, with reasonable accommodation when necessary Meets selective factors (e.g., foreign language) Able to satisfactorily perform duties upon entry
CTAP: Eligibility Limits Eligibility for CTAP ends when the employee separates from the government.
Reemployment Priority List (RPL) Agencies use the RPL to give reemployment priority to career or career-conditional employees they separated by RIF or due to compensable injury. A list must be maintained for each local commuting area.
RPL: Who Is Eligible? Employees must register At least Fully Successful rating Register either when the employee receives a RIF notice or within 30 days after RIF separation
RPL: Eligibility Limits Career employees get 2 years, Career-Conditional get 1 year Ask the agency to remove your name Receive a career, career-conditional or excepted appointment in any agency Decline a permanent job offer at current or former grade Decline an interview Don’t respond to an offer or fail to show for interview Retire or resign before RIF date
Interagency Career Transition Plan (ICTAP) Provides priority placement in a different agency.
ICTAP: Who is Eligible? Separated by RIF, for declining offer to transfer with function, for compensable injury Retired on or before RIF date Recovered from disability that led to disability retirement At least Fully Successful rating
ICTAP: Who is Eligible? Occupy or have been separated from position in same local commuting area as the vacancy Vacancy must be at or below that of position separated from Meet the application deadline Be found “well qualified”
ICTAP: What Is “Well Qualified (same requirements as CTAP) Meets qualification standards and eligibility requirements for the position, including any medical qualifications, suitability, minimum education requirements, and experience Meets selective factors Meets either quality ranking level set by agency, or rated above minimally qualified by agency Physically qualified, with reasonable accommodation when necessary Meets selective factors (e.g., foreign language) Able to satisfactorily perform duties upon entry
ICTAP: Eligibility and Buy-Outs Do I qualify if I took a buy-out? No. A buy-out is for voluntary separation. ICTAP is for involuntary separation.
ICTAP: Eligibility Limits One (1) year after becoming eligible Receive a career, career-conditional or excepted appointment in any agency Agency cancels or rescinds RIF or removal notice Move to another position prior to RIF date Resign or take non-discontinued service retirement before RIF date Within a specific agency, decline an offer from that agency
ICTAP and the CTAP ICTAP candidates are considered after CTAP candidates.