LOOKING AHEAD TO THE TRUMP RIFS
At the White House’s request agencies are preparing their systems to execute RIF’s in the next few months. One defense to a RIF is to argue that it has an inordinate impact on one or more classes of employees protected under the Civil Rights Acts. Because every employee is protected in one class or another under those laws, including the white male, unions should have already started to request the data they will need to determine if there will be an illegal adverse impact on any class. The easiest way to do that is to file an information request with the agency requesting the performance appraisal scores of each employee for the last four years by race, gender, national origin, age, year of score, etc. It would be wise to request other data as well, e.g., each employee’s job title, grade, location, SCD date, veteran’s status, competitive area, competitive level, etc. And of course, you do not need to have the agency identify the employee’s name or other PPI. Raw data will do. Agencies will use these scores to decide how many extra points to give employees in determining their RIF scores. The more points, the less likelihood that the employee will be RIF’d. For example, …
…suppose that it is determined that the average performance score for a woman over the last four years is 3.8 while the score for males is 4.2. If that calculation is based on more than the data for 100 employees, it is likely that the difference is what the courts call “statistically significant” in the eyes of the law. It is easy to calculate whether any difference you find is statistically significant so long as the agency presents the data in a spreadsheet format. Once a union can show that, the agency is generally obligated under the law to identify a legitimate business-related reason for the difference. If it can’t, courts can bar an agency from implementing a RIF until it finds a way to avoid the adverse impact.
Check out the FEDSMILL post entitled, “How to Measure Management Unfairness” for a step-by-step to using an on-line calculator that will give you the preliminary information you will need.
If a union finds that the data do meet the statistically significant threshold, it may want to file an EEO complainant attacking any RIF as illegally discriminatory. If EEOC agrees, the agency must call everyone back and start over again. Of course, if a union plans to file with EEOC, it needs to get some experienced legal advice on how to do it.
These are not easy cases to win, but the potential payoff is huge.
