Minahan and Shapiro, P

Minahan and Shapiro, P.C.

Attorneys at Law Daniel Minahan Barrie M. Shapiro

MINAHAN AND SHAPIRO, P.C. Attorneys at Law

Phone: 303.986.0054

FAX: 303.986.1137

165 S. Union Blvd. Suite 366 Lakewood, CO 80228

December 5, 2005

TO: Our Union Clients and Friends

FROM: Dan Minahan and Barrie Shapiro

RE: NSPS: Reductions-in-Force (RIF)

Alias: 'Workforce Shaping'

This is another one of our law firm's public service announcements on DOD's National Security Personnel System (NSPS). The purpose of these announcements is to demonstrate to our clients and friends that we are just as ignorant as everybody else (perhaps more so) about how NSPS is supposed to work.

Today's topic is RIF's (called 'workforce shaping' under NSPS). Now that DOD has issued its final regulations, and its draft 'implementing issuance' for workforce shaping (SC600), at www.cpms.osd.mil/nsps/issuances.html, how does DOD plan to run reductions in force? Beats us.

RIFS for the rest of the federal government (or what's left of the federal government) are conducted according to laws passed by Congress, and according to regulations issued by OPM at 5 CFR Part 531 implementing those laws. Under OPM regulations, employees compete for retention against other employees in their competitive level who are also in the same RIF tenure subgroup as them.

Under OPM regulations, the federal employer identifies positions to be abolished, and positions to be retained, based on its managerial needs. It is then necessary to look inside the 'competitive levels' to see whether any of them contain positions that have been abolished. Competitive levels consist of one or more positions in the same series and grade (e.g., GS-301-7) that are basically inter-changeable (meaning, each employee can do the work of all the other employees in the competitive level). If one or more positions in a competitive level have been abolished, then employees compete for retention according to RIF subgroups, to see whether the person who happens to occupy one of the abolished positions is going to lose his or her job. For career employees, it goes like this:

Tenure Group I

Subgroup AD (disabled vets)

Subgroup A (vets)

Subgroup B (non vets)

The subgroup you are in means a lot. If you are in Subgroup AD and you are occupying one of the positions that management has decided to abolish, you will automatically take the job of an employee in Subgroup B who is in the same competitive level as you.

Performance ratings and years of service mean nothing unless you are competing against other employees in the same subgroup as you. So, if everyone in the competitive level is a Subgroup B employee and the position of one employee in that competitive level has been abolished, then the employee with the earliest 'RIF service computation date' (starting date with the federal government minus extra years based on your performance ratings) will lose his job.

If everyone in your competitive level is a Subgoup B employee, except for one employee who is a Subgroup AD employee and one position in the competitive level is abolished, the Subgroup AD employee is safe, no matter how many years he has worked for the federal government or whether his performance ratings are average or outstanding; all the competition will occur among the Subgroup B employees.

Under the current OPM regulations, once an employee has been released from her job in her competitive level, she may have the opportunity to 'bump' or 'retreat' into another person's job; if she has no 'bump' or 'retreat' rights, she is separated from employment.

How will RIF's work under NSPS? As best as we can figure it out, the old 'competitive level' is going to mean whatever DOD wants it to mean, and your years of service in the federal government will mean almost nothing.

Under OPM regulations, all employees in a competitive level must be the same series and grade (e.g., GS-301-7) and must all be able to do each other's jobs. Under NSPS, employees will be placed into 'competitive groups.' To be in a 'competitive group, it doesn't matter if you and the others in your group are in the same series and grade or if you and the other employees in your group can do each other's jobs. Or it does. It's up to DOD. So, you could be in a competitive group called 'all humans who work for the Air Force in Florida' or 'all supply technicians in Pay Band 2 who work on the sunny side of Building 1533 at Mickey Mouse Air Force Base.' Flexible. Contemporary. Transparent. Mission-driven. Performance culture. Fights terrorism. September 11. You know all the words by now.

Under OPM regulations, the tenure subgroup you are in counts for just about everything. If you are a career employee who is a disabled veteran (Subgroup I AD) you will be one of the last employees out the gate. Under NSPS, you are going to be in a sub-sub-sub-sub group and the only time that your years of federal service will mean anything is after you and whoever you are competing against have been sorted out, first by tenure group, second by veterans preference, third by performance ratings, and then finally by years of service.

If one of the positions that DOD has decided to abolish is in your 'competitive group,' then you'll need to look on the NSPS 'retention list.' Let's say your 'competitive group' consists of 'all boot-lickers in Pay Band 2 who know how to type and file things in Building 555' and there are 10 of you. Here's how everybody in the 'competitive group' ranks on the retention list:

1. Employee L: disabled vet/performance rating of 5/ two years of federal service.

2. Employee M: disabled vet/ performance rating of 3/ twenty years of federal service.

3. Employee N: vet/ performance rating of 5/ two years of federal service.

4. Employee O: vet/ performance rating of 4/ eighteen years of federal service

5. Employee P: vet/ performance rating of 3/ twenty-four years of federal service.

6. Employee Q non vet/ performance rating of 5/ two years of federal service.

7. Employee R non vet/performance rating of 4/fifteen years of federal service.

8. Employee S: non vet/performance rating of 3/ twenty years of federal service.

9. Employee T: non vet/performance rating of 3/nineteen years of federal service.

10.Employee U: non vet/performance rating of 3/ eighteen years of federal service.

It's still good to be a disabled vet or a vet. Under NSPS, however, the performance rating beats the years of federal service every time.

Whether NSPS includes the concepts of 'bump' and 'retreat' is hard to say. The only safe thing to say is that DOD can do whatever it wants to do. It's a matter of national security, you know.

Here are some of the key RIF regulations—the new NSPS regulations and the old OPM regulation.

National Security Personnel System Regulations (5 CFR Part 990)

§ 9901.607 Retention standing.

(a) Retention list. Within each competitive group, the Secretary will establish a retention list of competing

employees in descending order based on the following:

(1) Tenure, with career employees listed first, followed by employees serving an initial probationary period, and then followed by employees on term appointments and other employees as identified in implementing issuances;

(2) Veterans' preference, in accordance with the preference requirements in 5 CFR 351.501(c) and (d), including the preference restrictions found in 5 U.S.C. 3501(a);

(3) The ratings of record, as determined in accordance with implementing issuances;

(4) Creditable civilian and/or uniformed service in accordance with 5 U.S.C. 3502(a)(A) and (B) and 5 CFR 351.503, but without regard to provisions covering additional service credit for performance in 5 CFR 351.503(c)(3) and (e); and

(5) The Secretary may establish tiebreaking procedures when two or more employees have the same retention standing.

(b) Active uniformed service member not on list. The retention list does not include the name of an employee who, on the effective date of the reduction in force, is on active duty in the uniformed services with a restoration right under 5 CFR part 353.

(c) Access to retention list. An employee who received a specific reduction in force notice and the employee's representative have access to the applicable retention list in accordance with 5 CFR 351.505. Where 5 CFR 351.505 uses the terms ‘‘competitive level'' or ‘‘retention register,'' the term retention list (as defined in this subpart) is substituted.

§ 9901.608 Displacement, release, and

position offers.

(a) Displacement to other positions on the retention list. (1) An employee who is displaced because of position abolishment, or because of displacement resulting from the abolishment of the position of a higher-standing employee on the retention list, may displace a lower-standing employee on the list if—

(i) The higher-standing employee is qualified for the position consistent, as applicable, with 5 CFR 351.702, or the Department's own qualifications applied consistent with other requirements in 5 CFR 351.702;

(ii) No undue interruption would result from the displacement; and

(iii) The position of the lower standing employee is in the same pay band, or in a lower pay band, as the position of the higher-standing employee.

(2) A displacing employee retains his or her status and tenure.

(b) Release from the retention list.

(1) Employees are selected for release from the list on the basis of the ascending order of retention standing set forth in § 9901.607(a).

(2) A competing employee may not be released from a retention list that contains a position held by a temporary employee when the competing employee is qualified to perform in that position under § 9901.608(a)(1)(i).

(3) The release of an employee from the retention list may be temporarily postponed when appropriate under 5 CFR 351.506, 351.606, 351.607, and 351.608. Where part 351 uses the term ‘‘competitive level'' in these four sections, the term retention list (as

defined in this subpart) is substituted.

(c) Placement in vacant positions. At the Secretary's option, an employee affected by § 9901.608(a)(1) may be offered a vacant position within the competitive area in lieu of reduction in force, based on relative retention standing as specified in § 9901.607(a).

(d) Actions for employees with no offer. If a released employee does not receive an offer of another position under paragraph (c) of this section to a position on a different retention list, the Secretary may—

(1) Separate the employee by reduction in force; or

(2) Furlough the employee under § 9901.604(b)(3).

From the Draft 'Implementing Issuance'

SC600.4.5. Retention Standing. Employees occupying positions in the same competitive group compete for positions in RIF based on their retention standing. Retention standing is based on a combination of tenure, veterans' preference, performance and creditable length of service (civilian and/or uniformed) and is only determined for competing employees. The retention standing of an employee released from a retention list is as of the date the employee is released or, in the case of an exception to order of release, the date the employee would have been released. The retention standing of an employee who has been given an exception to order of release is fixed until completion of the RIF action, unless an error is discovered that must be corrected.

SC600.4.5.1. Retention List. All competing employees occupying positions in the competitive area, who are placed in the same competitive group, are included on a retention list in order of retention standing. While all positions in the competitive group are listed, only competing employees have retention standing.

SC600.4.5.4. Retention Factors.

SC600.4.5.4.1. Tenure. Tenure Group I and Tenure Group III employees are competing employees for RIF. Tenure Group I employees who have completed their initial probationary period are listed ahead of Tenure Group I employees who have not completed their initial probationary period, followed by Tenure Group III employees. All Tenure Group I and Tenure Group III employees identified in the competitive group are placed on the retention list according to their position of record, including those who are on a temporary assignment (e.g., temporary promotion) to a position outside the competitive group. Tenure Group 0 employees do not compete in RIF.

SC600.4.5.4.2. Veterans' Preference. Employees are listed on the retention list by veterans' preference subgroups (AD, A or B) in the following descending order:

(a) AD: An employee eligible for veterans' retention preference with a compensable service-connected disability of 30% or more;

(b) A: Other employees eligible for veterans' retention preference; and

SC600.4.6. Displacement, Release, and Position Offers. Displacement means the movement of a fully qualified employee into a position held by an employee of lower retention standing on the same retention list.

SC600.4.6.2. Displacement and Release Order. All employees whose positions are abolished shall be identified on the retention list. Employees shall be selected for release from the retention list beginning with the employee with the lowest retention standing. To ensure this, the placement of the employee with the highest retention standing whose position has been abolished shall be decided first. This process shall continue for each employee whose position has been abolished, or whom another employee has displaced, in descending retention standing order. When two or more employees on the retention list have the same retention standing and are tied for release, random numbers shall be used to break ties. A displaced employee must be in the same, or one lower, pay band as the higher-standing employee who displaced them. In cases where competitive groups mix varying types of pay schedules, authorized management officials shall define "one lower pay band," as appropriate. Career employees placed in term positions retain their career status. A subsequent RIF must be run with the same parameters for competitive area and group(s) to release them at the expiration of the term appointment.

From the current OPM regulations (5 CFR Part 351)

§ 351.501 Order of retention—competitive

service.

(a) Competing employees shall be

classified on a retention register on the

basis of their tenure of employment,

veteran preference, length of service,

and performance in descending order as

follows:

(1) By tenure group I, group II, group

III; and

(2) Within each group by veteran

preference subgroup AD, subgroup A,

subgroup B; and

(3) Within each subgroup by years of

service as augmented by credit for performance

under §351.504, beginning

with the earliest service date.

(b) Groups are defined as follows:

(1) Group I includes each career employee

who is not serving a probationary

period. (A supervisory or managerial

employee serving a probationary

period required by subpart I of

part 315 of this title is in group I if the

employee is otherwise eligible to be included

in this group.) The following

employees are in group I as soon as the

employee completes any required probationary

period for initial appointment:

(i) An employee for whom substantial

evidence exists of eligibility to immediately

acquire status and career tenure,

and whose case is pending final

resolution by OPM (including cases

under Executive Order 10826 to correct

certain administrative errors);

(ii) An employee who acquires competitive

status and satisfies the service

requirement for career tenure when the

employee's position is brought into the

competitive service;

(iii) An administrative law judge;

(iv) An employee appointed under 5

U.S.C. 3104, which provides for the employment

of specially qualified scientific

or professional personnel, or a

similar authority; and

(v) An employee who acquires status

under 5 U.S.C. 3304(c) on transfer to the

competitive service from the legislative

or judicial branches of the Federal

Government.

(2) Group II includes each career-conditional

employee, and each employee

serving a probationary period under

subpart H of part 315 of this chapter. (A

supervisory or managerial employee

serving a probationary period required

by subpart I of part 315 of this title is

in group II if the employee has not

completed a probationary period under

subpart H of part 315 of this title.)

Group II also includes an employee

when substantial evidence exists of the

employee's eligibility to immediately

acquire status and career-conditional

tenure, and the employee's case is

pending final resolution by OPM (including

cases under Executive Order

10826 to correct certain administrative

errors).

(3) Group III includes all employees

serving under indefinite appointments,

temporary appointments pending establishment

of a register, status quo

appointments, term appointments, and

any other nonstatus nontemporary appointments

which meet the definition

of provisional appointments contained

in §§ 316.401 and 316.403 of this chapter.

(1) Subgroup AD includes each preference

eligible employee who has a

compensable service-connected disability

of 30 percent or more.

(2) Subgroup A includes each preference

eligible employee not included

in subgroup AD.

(3) Subgroup B includes each nonpreference

eligible employee.

(d) A retired member of a uniformed

service is considered a preference eligible

under this part only if the member

meets at least one of the conditions of

the following paragraphs (d)(1), (2), or

(3) of this section, except as limited by

paragraph (d)(4) or (d)(5):

(1) The employee's military retirement

is based on disability that either:

(i) Resulted from injury or disease received

in the line of duty as a direct result

of armed conflict; or

(ii) Was caused by an instrumentality

of war incurred in the line of duty during

a period of war as defined by sections

101 and 301 of title 38, United

States Code.

(2) The employee's retired pay from a

uniformed service is not based upon 20

or more years of full-time active service,

regardless of when performed but

not including periods of active duty for

training.

(3) The employee has been continuously

employed in a position covered

by this part since November 30, 1964,

without a break in service of more

than 30 days.

(4) An employee retired at the rank

of major or above (or equivalent) is

considered a preference eligible under

this part if such employee is a disabled

veteran as defined in section 2108(2) of

title 5, United States Code, and meets

one of the conditions covered in paragraph

(d)(1), (2), or (3) of this section.

(5) An employee who is eligible for

retired pay under chapter 67 of title 10,

United States Code, and who retired at

the rank of major or above (or equivalent)

is considered a preference eligible

under this part at age 60, only if such

employee is a disabled veteran as defined

in section 2108(2) of title 5, United

States Code.