Employee Rights in Furloughs are Limited

Nearly all federal employees face the imminent unpleasant prospect of furloughs as a result of the upcoming “sequestration” and ensuing agency budget reductions. The Office of Personnel Management defines a “furlough” as “the placing of an employee in a temporary nonduty, nonpay status because of lack of work or funds, and other nondisciplinary reasons.”

Fortunately, the law requires a 30-day notice of furloughs lasting 30 days (22 calendar days) or less, and employees are entitled to respond the proposals orally or in writing, entitled to a representative or attorney, and may appeal an adverse ruling to the Merit Systems Protection Board (MSPB).
As a practical matter, employees will have few grounds to challenge the furlough proposals, unless the agency failed to give proper notice or committed another due process violation. The MSPB would evaluate the furloughs under the standard of promoting the efficiency of the service, a fairly easy burden for an agency to meet by showing that the furlough was a reasonable management solution to financial restrictions and that the agency fairly selected the employees to furlough.

The MSPB has ruled that it would not second-guess management’s discretion in conducting a short-term furlough unless an employee can show disparate treatment among similarly situated employees. Clark v. OPM, 24 MSPR 224, 226 (1984). An employee might also challenge the furlough by asserting affirmative defenses of discrimination, but the MSPB has not been hospitable to such discrimination claims.
Agencies will identify which employees are affected by the furloughs. SES and political appointees are subject to administrative furlough; “leave-exempt” Presidential appointees are not subject to furlough. Some Presidential appointees may be subject to furlough yet not be entitled to adverse action procedures.

The decision whether to furlough employees is not a subject of collective bargaining, but unions may bargain over impact and implementation of furlough proposals. Career SES appointees are entitled to a 30-day advance written notice of a furlough of any length, but SES noncareer, limited term and limited emergency appointees and reemployed annuitants holding career SES appointments are not entitled to a 30-day advance written notice, opportunity to respond, or a separate decision notice.
Probationers, employees under temporary appointments, and others without appeal rights, also have no entitlement to notice or an opportunity to respond in a furlough. Administrative law judges, however, may only be subject to an adverse furlough of 30 days or less “for good cause established and determined by the MSPB on the record after opportunity for hearing before the Board.” Retirement, life insurance, and health insurance coverage continues, and employee contributions for their Federal Employee Health Benefits shares will be paid during pay status, or resumed after duty status if the salary is insufficient for the payments during furlough.

The furloughs need not be scheduled for consecutive days, and many agencies have established staggered or “discontinuous” furloughs. One day per week for 22 weeks is one example of a discontinuous furlough schedule. Employees may not volunteer to do their jobs during the furlough time off; may not accumulate religious compensatory time off; may not work to earn credit hours; and may suffer some delays in the award of within-grade and step increases based on length of service and individual performance. OPM has specific guidance for employees who might otherwise reach the biweekly cap on premium pay, and also has guidance for federal employees on military duty, and on leave without pay for Family Medical Leave Act purposes.
Some employees may be eligible for unemployment benefits during furloughs, but the rules are state-specific, and employees should consult their appropriate state or District of Columbia office. The Department of Labor also has a website with information regarding unemployment compensation for federal employees.

Some different rules apply to furloughs extending beyond 30 calendar days or more than 22 discontinuous work days. They must be handled under reduction-in-force (RIF) procedures, which require a minimum 60 days specific written notice of the furlough action. RIF procedures require that the agency notify employees of their retention standing and the basis for the retention standing (competitive area, service, position title, series, and grade, etc), and the agency must make information related to the RIF action available for inspection. Employees who are furloughed under RIF procedures also have MSPB appeal rights. The RIF procedures are also triggered when an administrative furlough of 22 workdays or less is extended for budgetary reasons.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to https://www.passmanandkaplan.com.