HOW TO CHALLENGE FURLOUGH PROPOSALS

Thousands of feds are facing notices of proposed furloughs and the dilemma of whether or not to challenge them via the oral/written reply process or beyond.   A challenge is more likely to pay off than you think if you follow these steps.

First, as soon as you get the proposal letter demand the right to make a reply  and to see the evidence upon which the agency relied to decide that it 1- needed to furlough, 2- for the number of days it has proposed, and 3- on the specific days it has proposed.  In all likelihood, you will get some conclusory document back that you can challenge as inadequate grounds for furloughing you.  Remember, in a furlough management has to prove by the preponderance of evidence that it benefits the efficiency of the service to furlough you, to furlough you for X number of days, and if it is designating the furlough days prove why those days and not others more to your choosing.  That is a high standard.  If what they send you does not meet that standard, you win back pay.

Second, when the reply is made challenge the financial evidence you were given as inadequate, challenge the number of proposed furlough days as unsubstantiated by the evidence, and propose that even if the furlough is justified and the number of days is substantiated that it would be better to let you serve the furlough at times you pick rather than the agency.

Here is an example of that last point.  Suppose the agency has proposed that you take every other Friday off for the rest of the fiscal year, for a total of 9 furlough days.  Further suppose that you are also going to take a two-week vacation during the summer on annual leave (or two weeks of sick leave for an operation).  If you adopt the agency’s plan, you will be off the job the 9 furlough days and another 10 leave days for a total of 19 days. However, if the agency let’s you serve your nine furlough days while you are on vacation, you save nine days of leave that you would have charged and the agency only loses your services for a total of ten days. How could an agency possibly argue to MSPB or an arbitrator that the government is more efficient if you aware off the job for 19 days rather than 10?  It can’t because that is absurd.

Third, demand all the procedural protections your contract gives you during this process.  If you are entitled to a transcript or even a summary of your reply, demand it.  If you are entitled to time after you get either of those to enter a written reply, take it and enter one.

Fourth, when the decision letter comes out check to see if it is the same standard letter given to everyone. If so, the agency may have committed reversible error if you entered a reply that was particular to your individual facts.  If you said it would be better to furlough you on dates you proposed versus dates thee agency proposed, the decision must address why that is not so.  If the letter does not even address your specifics, then in all likelihood that is evidence that the agency never really considered your reply.

Don’t be rattled by an agency proposal that everyone must serve the same furlough days because it has decided to totally shut down for nine specific days.  The agency “may” have the right to decide to close its doors on certain days, but it does not have the right to force you to serve a furlough that day unless it complies with all the procedures of the adverse action process, including proving why you must serve a furlough on the nine days it proposes rather than those you offer.

Fifth, when you get the decision, be ready to file an appeal with MSPB or through your union grievance-arbitration process.  If you do not belong to a union today, be aware that this is one of those places in the law where they do not have to represent you.  If you want a representative to help you appeal, hire one.