What Are My Federal Employee RIF Rights?
During our recent webinar, Navigating a Reduction in Force (RIF): What Every Federal Employee Should Know, we received many excellent questions about how RIFs are implemented and what rights employees have. Below are the top questions submitted—answered by our legal team, along with a Quick Summary for each to help simplify dense legal content.
If an agency will have staffing cut 80-90%, how is that a RIF? Also, what is an agency—HHS or the OPDIV?
Quick Summary: Even if an agency cuts most of its staff, it can still follow RIF procedures as long as it defines competitive areas correctly. HHS is considered an agency; OPDIVs like CDC and NIH may be treated as separate agencies in certain contexts.
5 C.F.R. § 351.402(b): provides, “A competitive area must be defined solely in terms of the agency’s organizational unit(s) and geographical location and… it must include all employees within the competitive area so defined. A competitive area may consist of all or part of an agency. The minimum competitive area is a subdivision of the agency under separate administration within the local commuting area.” (Emphasis added).
Nevertheless, as executive agencies/departments are established by statute, it should take Congressional approval to get rid of any agency altogether or cut it so severely that it cannot carry out its required functions.
HHS is an agency, while OPDIV is a subdivision. 5 C.F.R. § 5501.102. does identify several HHS components as separate agencies, including, for example, the CDC, FDA, and NIH.
How Are Remote Federal Employees Affected in a RIF? As far as the Competitive Area?
Quick Summary: Remote employees may be included with their main office’s competitive area or placed in a separate one, depending on agency decisions and location.
As a remote employee (versus one allowed to telework), you may be included in the competitive area with your organizational unit, or the agency may establish separate competitive areas. Recent guidance issued by HHS, for example, provides:
“An organizational unit is defined as the competitive area and the unit has 15 employees, with 10 located in Washington, DC and 5 full-time telecommuters in Atlanta, GA. There are two options for the competitive area in this example – 1) The telecommuters can compete in the same competitive area as the 10 employees located in Washington, DC (relocation costs are then a consideration as the employee may have to move to Washington, DC), or 2) A separate competitive area may be established for those 5 employees in Atlanta.“
More details can be found in HHS’s RIF policy guidance
Do Agencies Need to Disclose or Provide Evidence about How Competitive Areas Are Defined?
Quick Summary: Yes. The RIF notice must include competitive area details, your retention standing, and your appeal or grievance rights.
When an agency provides a RIF notice, 5 C.F.R. § 351.802 requires that the notice include:
(a)
(1) The action to be taken, the reasons for the action, and its effective date;
(2) The employee’s competitive area, competitive level, subgroup, service date, and three most recent ratings of record received during the last 4 years;
(3) The place where the employee may inspect the regulations and record pertinent to this case;
(4) The reasons for retaining a lower-standing employee in the same competitive level under § 351.607 or § 351.608;
(5) Information on reemployment rights, except as permitted by § 351.803(a); and
(6) The employee’s right, as applicable, to appeal to the Merit Systems Protection Board under the provisions of the Board’s regulations or to grieve under a negotiated grievance procedure. The agency shall also comply with § 1201.21 of this title.
(b) When an agency issues an employee a notice, the agency must, upon the employee’s request, provide the employee with a copy of OPM’s retention regulations found in part 351 of this chapter.
What Happens If an Entire Office or Location Is Abolished?
Quick Summary: If your office closes, you may be offered a transfer. Declining the move can result in lawful separation under RIF rules.
Unfortunately, the answer is that it depends. In the instance where an agency, for example, decides to abolish the Miami and Orlando offices and determines that the functions performed by the employees in the Miami and Orlando office will be transferred to the Tampa office, the agency should follow the transfer of function regulations at 5 C.F.R. § 351 Subpart C. These regulations provide that before a RIF, “each competing employee in a position identified with the transferring function or functions shall be transferred to the continuing competitive area without any change in the tenure of his or her employment.” The regulations further provide that the agency may separate any employee who declines the transfer.
What info about RIF plans are required to be made public or shared with staff or the state that will have more than 50 people lose their jobs?
Quick Summary: RIF plans don’t have to be made public, but agencies must notify the state when 50+ employees receive RIF notices.
The RIF regulations don’t require agencies to make the RIF plans public. Under 5 C.F.R. § 351.803(b), agencies must notify states when they issue RIF notices to 50 or more employees but not to provide any information on plans before the RIF notices are issued.
Need Help Navigating a RIF? We’re Here for You
Facing a Reduction in Force is never easy—but you don’t have to go through it alone. Understanding your rights is the first step toward protecting your career, benefits, and future. Whether you’ve already received a RIF notice or are concerned you might be affected, our legal team is ready to help you make informed, confident decisions.
Ready to take the next step? Fill out our client intake form to schedule a consultation with one of our experienced federal employment attorneys.
Let Federal Practice Group help you move forward with clarity and confidence.