The Navy Ran This One The Right Way

Does an employee have a right to the highest graded vacant job available when demoted because of a RIF action?

There are different ways to reduce the size of the workforce in a federal agency. The most direct way is running a reduction-in-force (RIF). But running a reduction-in-force is complex, disruptive and expensive. Most human resources specialists have not run one and most probably hope they never have to do so.

Many federal employees are familiar with the concept of a reduction-in-force (RIF) and the process is sometimes used by an agency that is reducing its workforce. It’s a scary thought because a RIF may mean that people lose their jobs.

Those in the federal workforce may hear more about them much more than the process is actually used. But RIF’s can and do occur. And when they occur, they are a fertile ground for appeals because of their complexity and the impact it can have on those subjected to a RIF.

As the name implies, a RIF is a way for an agency to reduce its workforce and to cut salary expenses. The process was designed to try and be fair; in large part that is why the process is so cumbersome and so complex.

The Navy ran a small RIF and did it right, according to all those deciding the appeals which, as is often the case, are still going on several years after the actual event. Here is the primary question posed by this particular reduction-in-force. Does a federal employee who is impacted by a RIF and who is qualified for a higher level position have the right to be placed in the highest graded job available?

Some would argue handing out the best paying job is fair to the employee while others would observe that what is fair to the employee would result in the RIF not helping an agency reduce its workforce or its expenses–the primary reason for running a RIF in the first place.

A recent decision by the Court of Appeals for the Federal Circuit highlighted this issue that arose in this Navy case.

The Navy decided to eliminate the telecommunications division at a facility in Washington, DC. The organization had five employees and the resulting RIF resulted in an employee working as a GS-11 Telecommunications Specialist losing that job. Willema Hardy was, instead, offered a job as a GS-7 secretary.

The employee was unhappy over this turn of events and challenged the Navy’s offer by contending that she should have been offered a job as a GS-11 Customer Relations Manager or a GS-9 secretary. Both of these jobs were vacant at the time.

The Administrative Judge concluded that the Navy did not have an obligation to offer an employee either of these vacant jobs and upheld the agency’s decison. Hardy did not contest the initial decision so it became the final decision of the Merit Systems Protection Board.

But she then went to the Court of Appeals anyway and argued that once the agency decided to fill vacancies with employees who were displaced in a RIF that she had a right to one of the other higher-graded positions.

The Court agreed with the Board that she had no right to either of the higher graded jobs. In fact, said the Court, the Navy did not have to offer her a job as a GS-7 but had done so at its discretion rather than terminate her from federal employment.

“We conclude that no provision of the RIF regulations obligates an agency to offer placement in the highest-graded available vacancy” said the court. In fact, it concluded, a requirement that an agency place an employee in a higher graded vacancy under these circumstances could defeat the entire purpose of running the RIF in the first place. An agency may undertake a RIF in order to reduce the size of its workforce to reduce its total salary payments within the appropriations given to it by Congress. This would not be possible if an agency had to offer the highest graded job to an employee who may be qualified for that job.

A word of warning: if your agency is running a reduction-in-force, read this case carefully before drawing too many conclusions. This case did not involve bumping and retreating to jobs as often happens in a larger reduction-in-force. Here’s the case in it’s entirety for anyone who wants to wade through the complexities. Willema Hardy v. Dept. of the Navy, 04-3086, US Court of Appeals for the Federal Circuit, January 4, 2005.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47