Reductions in Force (RIFs) can be incredibly complex and challenging to navigate as an employee; even one as highly ranked and tenured as a career Senior Executive Service (SES) member. SES members within the executive branch are subject to a different set of RIF procedures and placement rights than other government employees. See 5 U.S.C. § 3595; 5 C.F.R. § 359. Agencies must use competitive procedures to determine which SES members will be separated in a RIF and cannot make determinations based on reasons that are personal or targeted towards the employee (e.g., political affiliation, performance issues, protected characteristics). RIFs should target positions, not people. Agencies are required to draft their own RIF procedures, including procedures that apply to SES members.
How Do RIFs of SES members differ from RIFs of other federal employees?
The main difference between SES RIFs and RIFs of other federal employees is that SES members have the right to be reassigned to another SES position anywhere in the executive branch or to a GS-15 (or similar) position within the agency, depending on their probationary status. Another difference is that the methods for determining which SES positions will be abolished are based primarily on an individual’s performance, rather than other factors like tenure or veteran status in RIFs for other federal employees.
How Does a Federal Agency RIF an SES member?
When subjecting an SES member to a RIF, agencies must use competitive procedures, which determine who will be retained and who will be separated or demoted during a RIF.
The agency must first decide the competitive area that will be covered by the RIF. A competitive area is the portion of the agency and geographic location in which employees compete for retention during a RIF. The agency can set the competitive area as the entire agency, nationwide, or they can limit it to an organizational unit in a specific commuting area (e.g., Headquarters, Washington, DC Metro Area).
Then, all SES members within the competitive area must be sorted into competitive levels, which are positions that are similar enough that an agency could reassign anyone within the same level to any of the other positions in the level. Competitive levels should consist of all positions in a competitive area that are similar enough in duties, qualification requirements, pay schedules, and working conditions so that an agency may reassign the incumbent of one position to any of the other positions in the level without undue interruption.
The next step in the competitive procedure is for an agency to use their own written SES RIF procedures to rank every employee within a competitive level. The method of ranking can be different for every agency, but the method must be designed to ensure retention determinations are primarily based on performance, as determined under an approved SES performance appraisal system. The resulting ranking is called the retention register and an SES member’s position on the list is called their retention standing. The agency then eliminates positions, moving from the bottom of the list up, and does so within every competitive level.
What Rights Do Probationary SES Members Have During a RIF?
Once an agency has determined who it is going to release, the agency must provide proper notice and placement rights to the released individuals. Probationary SES members who were not federal employees prior to SES appointment are only entitled to one day’s notice before they are separated or demoted and generally do not have a right to placement elsewhere in the agency. Probationary SES members who were career or career-conditional federal employees at the time of their appointment to the SES, are entitled to be placed in a position of tenure equivalent to that of the appointment held at the time of appointment to the SES. For example, if an individual was a GS-15 before they were appointed to SES and they were subjected to a RIF during their probationary period, they are entitled to a GS-15 position within the agency. The only exception is if there is no position of equivalent tenure within the agency that the appointee is qualified for or if the appointee is willing to accept a position with a different tenure.
What Rights Do Post-Probationary SES Members Have During a RIF?
Post-probationary SES members have more extensive rights to notice—one notice 45 days before the RIF action and another notice one day before the RIF action—and have statutory rights to placement in other SES positions within the agency or across the executive branch. If a post-probationary SES member is selected for release from the retention register, that employee is statutorily entitled to placement in another SES position for which they are qualified within the agency.
If there are no SES positions within the agency that the released employee can fill, the agency must certify this to OPM, and OPM must begin 45-day priority placement assistance, which places released SES members into an SES position for which they are qualified in any agency across the executive branch. During the 45-day period after the agency has certified a lack of SES positions within the agency, OPM must take “all reasonable steps” to place the released SES employee in any SES position in any agency, unless the agency head determines the individual is not qualified for a position based on professional or technical qualifications in the standard for the position. The SES member may also accept a GS-15 position before the end of the 45-day period. If OPM is unable to place the SES member within the 45 days or the SES member refuses a reasonable offer of an SES position in another agency, the SES member will be separated from the agency.
What Information Should an SES RIF Notice Contain?
In an SES member’s notice of RIF action, the agency is required to include information on their right to appeal the RIF action to the Merit Systems Protection Board. Career SES members, both probationary and post-probationary, can file an appeal with the MSPB challenging the agency’s use of competitive procedures within 30 calendar days of the effective date of the RIF action. This means that an individual can challenge issues like the ranking procedures, calculation of retention standing, drawing of competitive levels, and unfair application of competitive procedures, but it does not allow an SES member to appeal based on the agency or OPM’s failure to take “all reasonable steps” to place displaced SES members in a new position.
Glossary:
Competitive area – A competitive area is the area in which employees compete for retention during a RIF. 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. 5 C.F.R. § 351.402.
Competitive level – A competitive level consists of all positions in a competitive area which are in the same grade (or occupational level) and classification series, and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that an agency may reassign the incumbent of one position to any of the other positions in the level without undue interruption. 5 C.F.R. § 351.403.
Competitive procedures – The procedures used to determine who will be retained and who will be separated or demoted during a RIF.
OPM 45-day priority placement assistance – Within 45 days of an agency’s certification that there are no open SES positions for the released appointee to fill, OPM must take all reasonable steps to place the appointee in any vacant SES position in any agency, unless the agency head determines the appointee is not qualified for that position. 5 U.S.C. § 3595(b).
Placement rights – Placement rights are the rights of probationary career SES appointees who previously worked for the federal government before their appointment to SES and the rights of post-probationary career SES appointees to be placed in either other SES or general service positions rather than being separated from the agency during a RIF. These placement rights differ based on whether the SES member is probationary or not, and what position they held before they joined the SES. See 5 U.S.C. § 3595(b); 5 C.F.R. § 359.702.
Retention register – The retention register is the ranked list of every employee within every competitive level within the competitive area. Released employees (and their representatives) are entitled to review the complete retention register with the released employee’s name and other relevant retention information so that the employee may consider how the agency constructed the competitive level, and how the agency determined the relative retention standing of the competing employees. Released employees (and their representatives) are also entitled to the complete retention registers for other positions that could affect the composition of the employee’s competitive level, and/or the determination of the employee’s assignment rights. 5 C.F.R. § 351.505(c); § 359.605(a).
Retention standing – An employee’s retention standing is their ranking on the retention register based on the written competitive procedures used by the agency.
This article solely provides general information and is not intended as legal advice. If you need legal advice or representation regarding a recent RIF, Atkinson Law Group may be able to help; you can contact us here for a consultation.
