Statute: 5 U.S.C. 3595, 3595a

Regulations: 5 CFR Part 359, Subpart F and Subpart H

General Information

This chapter covers SES RIF, OPM’s RIF placement program, and furlough. The procedures on competition for job retention in a RIF and the appeal rights described in this chapter, apply to both probationers and post-probationers. The procedures on placement, separation, and notices, apply only to post probationers (See Chapter 8 for procedures for probationers).

As defined in 5 U.S.C. 3595(d), RIF includes the elimination or modification of a position due to reorganization, lack of funds, curtailment of work, or any other factor. These would include OPM withdrawal of SES spaces, a total agency shutdown, or the determination that a position no longer meets the criteria for inclusion in the SES.

For RIF purposes, “agency” means an executive department or an independent establishment. For example, the Department of Defense is one agency, with Army, Navy, and Air Force being components within that agency.

Reduction in Force

Agencies are required by law to establish competitive procedures to determine who shall be removed from the SES in reductions in force. These procedures must be designed to ensure RIF determinations are based primarily on performance.

Agency RIF Plans

Each agency is responsible for implementing the statutory provisions on RIF. An agency must publish its written RIF procedures before initiating any specific RIF action. These procedures should:

• identify the area or areas of competition, i.e., the full agency or a specified portion of the agency;
• indicate how positions or employees will be grouped within a competitive area;
• indicate how retention registers will be set up;
• describe the competitive procedures used to determine job retention;
• establish a mechanism for considering post-probationers for vacant SES positions and indicate whether probationers will be considered for such positions;
• establish a procedure for referring post-probationers to OPM for placement assistance when they cannot be placed in the SES within the agency;
• provide for placement outside the SES of post-probationers who cannot be placed in the SES;
• provide for the separation, or placement outside the SES, of probationers affected by RIF;
• provide for the separation from the Government of a post-probationer who declines a directed reassignment in his/her own agency (an adverse action taken under 5 CFR part 752); and
• set forth the notice requirements for implementing RIF actions.

Agencies may consult with Senior Executive Services and Performance Management when developing or significantly modifying their plans, to ensure the plans comply with law and regulation.

Agencies shall provide Senior Executive Services and Performance Management a copy of their final SES RIF plan and any substantive changes.

Agency Pre-RIF Actions

Agency management organizes the SES workforce to accomplish agency objectives within the given constraints on funds and personnel spaces. When faced with the possibility of a RIF, the agency should carefully examine its SES positions and determine how each may be affected. If necessary, the agency can draw up new SES staffing requirements.

Minimize negative impact. Agencies can take action to minimize the negative impact of a RIF on their SES members. For example, an agency may find that by taking a series of reassignment actions, it can reduce the number of SES members affected or, perhaps, obviate the need for a RIF. If an SES member’s position is abolished, the agency can reassign the individual to a vacant SES position for which qualified, without invoking RIF procedures. In addition, the agency may help interested executives locate suitable positions in other Federal agencies or the private sector, either through its own efforts, or through OPM’s RIF placement program. The agency may also consider contacting OPM about the appropriateness of discontinued service retirement or a voluntary “early out” retirement authority.

Effect on SES spaces. As soon as it is evident that a RIF cannot be avoided, the agency should decide how the cuts will be distributed among its career, noncareer, and limited appointees. In making this decision, the agency should consider the impact on its SES structure with respect to the position authorization requirements in 5 U.S.C. 3133 and the appointment limitation requirements of 5 U.S.C. 3134 (e.g., the 25 percent limit on noncareer authorities), and consult with OPM on any necessary adjustments. Depending on the circumstances, agencies that apply a RIF to their SES workforce are subject to withdrawal of the affected SES spaces and should be prepared to justify any proposal to retain the spaces.

Advance notice. Agencies are asked to advise OPM as far ahead as possible about potential RIF activity, so that OPM can plan for placement assistance and ask other agencies for assistance. It would also be beneficial for agencies to advise executives early about possible RIFs, as they must search for job opportunities themselves, and obtain placement assistance provided by their agencies and OPM.

Competitive Procedures

5 U.S.C. 3595(a) requires competition for job retention. This requirement applies to all SES career appointees, probationers as well as post-probationers. However, reemployed annuitants who serve at the pleasure of the appointing authority, are excluded from SES RIF procedures by 5 CFR 359.601(a)(2), and may be removed without competition under 5 CFR part 359, Subpart I.

If an agency is being abolished (without a transfer of functions) and its SES members are being separated at the same time or within 3 months of the abolishment, it is not necessary to use competitive procedures [5 CFR 359.602(a)(4)].

Competitive Area. As a first step, the agency establishes the area of competition. The competitive area may be the full agency or a major component of the agency (normally one that reports to the head of the agency). Agencies are advised to define the competitive area in such a way as to ensure adequate competition, especially in situations where the competitive area is other than the full agency.

Retention Registers. Retention registers must be developed for affected employees. There are different ways this can be done, and two examples are shown below:

• An agency can establish competitive levels within each competitive area and then develop a retention register for each level, as is done in the non-SES RIF [5 CFR part 351]. Competitive levels consist of all positions in the competitive area that are sufficiently alike in qualifications requirements, duties, and responsibilities, that the agency may readily assign the incumbent of any one position to any of the other positions, without unduly interrupting the work.

Under this procedure, when a position in a competitive level is abolished, selection for release is in inverse order of standing on the retention register for that level beginning with the employee with the lowest retention standing. If employees are listed by group, the agency may select for release any SES member in the lowest group on the retention register.

• An agency can develop a retention register that contains all SES incumbents within the competitive area. Under this procedure, when a position is abolished, the incumbent displaces the lowest ranking person on the retention register (or a person in the lowest group on the register). The incumbent must meet the qualifications requirements of the displaced person’s position.

Ranking. An agency must have a method for ranking individuals on the retention register. The competitive procedures used for ranking must be designed to assure that retention determinations are primarily based on performance, as determined under an approved SES performance appraisal system.

Beyond this, however, the agency has a good deal of flexibility in developing a ranking plan. The agency could group employees by performance rating level and then use factors such as length of SES service or receipt of a Presidential Rank Award or a performance award to rank employees within the group. (Veterans’ preference may not be considered since SES members are excluded by law from such preference.) As an alternative to grouping employees by performance rating level, the agency could use a point system, provided a majority of points are assigned for performance (e.g., 75 points for performance and 25 points for other factors).

Performance Rating. In ranking SES members on a retention register, an agency must use the final annual summary rating given under an SES performance appraisal system, and not any interim rating [5 CFR 359.602(a)(2)]. The agency may consider performance for more than one year.

The following are two examples of how an agency could group SES members on a retention register. As indicated below, individuals can be further ranked within each group. The use of unnecessarily large groups from which any employee can be chosen for release may subject the agency’s actions to challenge as being arbitrary or capricious.

Plan I

Post-probationer with Outstanding rating Probationer with Outstanding rating

Post-probationer with Exceeds Fully Successful rating Probationer with Exceeds Fully Successful rating

Post-probationer with Fully Successful rating Probationer with Fully Successful rating

Post-probationer with Minimally Satisfactory rating Probationer with Minimally Satisfactory rating

Post-probationer with Unsatisfactory rating Probationer with Unsatisfactory rating

Plan II

Post-probationer with Outstanding rating

Post-probationer with Exceeds Fully Successful rating Post-probationer with Fully Successful rating Probationer with Outstanding rating

Probationer with Exceeds Fully Successful rating Probationer with Fully Successful rating

Post-probationer with Minimally Satisfactory rating Probationer with Minimally Satisfactory rating

Post-probationer with Unsatisfactory rating Probationer with Unsatisfactory rating

If a probationer and a post-probationer have the same retention standing, the post-probationer must be retained over the probationer.

Placement in the SES

In the Agency. A post-probationer who is selected by competition for release from the retention register, has a statutory right to be assigned to any vacant SES position in the agency for which the employee meets the qualifications requirements, whether in the same or a different commuting area, and without regard to the type of appointment used to fill the position in the past. Since “agency” refers to an executive department or an independent establishment, this placement right cannot be restricted to SES jobs in an organizational component, regardless of the competitive area established for the RIF.

If an individual is qualified for two or more vacant positions, the agency may decide to place the individual in either position.

If two or more individuals released from a retention register are qualified for the same vacant position, the agency may decide which individual to place in the position.

If an individual fails to accept a directed reassignment in a RIF placement, the agency may initiate an adverse action removal under 5 CFR part 752, Subpart F.

If there is no vacant SES position within the agency for which a post-probationer is qualified, the executive is entitled to placement assistance by OPM. This includes individuals from abolished agencies where competitive RIF procedures were not used.

During the period of OPM placement assistance, the individual remains on the agency rolls in an SES pay status. Further, the agency has a continuing obligation during the period to place the post-probationer in the SES, should a vacancy occur in the agency for which the individual is qualified.

OPM Placement Assistance. The specifics of OPM’s RIF placement assistance program are described later in this chapter, including the responsibilities of agencies, SES members, and OPM.

For a post-probationer to receive OPM placement assistance, the agency head must certify in writing that there is no vacant SES position in the agency for which the employee is qualified. Placement assistance begins when OPM acknowledges the agency head’s certification and continues for 45 calendar days, unless the employee is appointed to another SES position, declines a reasonable offer of placement, leaves the Government, or fails to request assistance.

If, in an emergency, the agency lacks work or funds for all or part of the period during which OPM is attempting to place the employee, the agency may, with or without the employee’s consent, place the employee on annual leave or in a leave without pay (LWOP) or non-pay status. Placement in an LWOP or non-pay status, however, may require the use of furlough procedures.

Removal and Placement Outside the SES

If a post-probationer declines a reasonable offer of placement, OPM will advise the employing agency. OPM’s notice will identify the agency that made the offer, the title of the position offered, its geographical location, the date the offer was made, and the date the offer was declined. Under 5 U.S.C. 3595(b)(4), the employing agency may initiate a removal action from the SES based on the declination.

If a post-probationer is not placed in another SES position by the end of the 45-day OPM placement period, OPM will notify the employing agency in writing that it may initiate a removal action from the SES.

A post-probationer is entitled to placement outside the SES (See Chapter 10 on Guaranteed Placement). The agency must place the individual in a continuing position at the GS-15 level or above, or an equivalent position. An individual affected by a RIF may accept placement outside the SES before the end of the 45-day OPM placement period, if they voluntarily agree in writing.

Notice Requirements

On release from the retention register and certification to OPM. The agency must give a written notice to a post-probationer if the employee is released from a retention register and cannot be placed in another SES position in the agency. The notice must be given at least 45 days before the employee’s removal from the SES. Typically, the notice should be given no later than the time when the employee is referred to OPM for the 45- day placement period. The notice must include the following information:

• the nature of the RIF competition, including the appointee’s competitive area (if less than the agency) and standing on the retention register;
• the place where the appointee may inspect the regulations and records pertinent to the competition for job retention;
• efforts made to place the employee in a vacant SES position within the agency;
• the date on which the agency certified the employee to OPM for placement assistance;
• information about OPM’s placement assistance program, including what the employee must do to apply;
• the prospective effective date of removal if the individual cannot be placed elsewhere in the SES during the 45-day OPM placement period. If the specific date is not known, the agency may use a “no later than” date. (A specific termination date is needed to ensure eligibility for discontinued service retirement.); and
• the appointee’s right to appeal the competitive procedures used in the RIF to the

Merit Systems Protection Board if removed from the SES, the time limit for making an appeal, and the MSPB office to which the appeal should be sent.

Removal from the SES. At least one day before removal the agency must inform the post-probationer in writing of:

• the basis for the removal, i.e., 5 U.S.C. 3595(b)(5) if the basis is expiration of the 45-day OPM placement period, or 5 S.C. 3595(b)(4) if the basis is declination of a reasonable placement offer. In the latter case, identify the position offered and the date the employee declined;
• the effective date of the removal;
• reminder of the employee’s appeal rights;
• placement rights outside the SES, i.e., the GS-15 or above position in which the executive will be placed;
• when applicable, the appointee’s eligibility for discontinued service retirement; and
• if the employee is being separated from the Federal service (e.g., due to the abolishment of the agency), information concerning how to apply for unemployment insurance. [See Chapter 11 for other provisions affecting the SES.]

120-Day Moratorium

The 120-day moratorium does not apply to a removal as a result of RIF.

The MSPB maintains that the 120-day moratorium addressed in 5 U.S.C. 3592(b)(1) on removals of career appointees following the appointment of a new agency head or noncareer supervisor, “is not applicable to a removal pursuant to a RIF” [Gordon C. Facer v. Department of Energy (DC035 18310289, November 9, 1984)]. The Board noted that in the case of post-probationers, section 3592 covered only performance removals and that Congress had created a separate provision for RIF removals in section 3595, because it does not have the 120-day moratorium.

However, agencies also need to consider the 120-day moratorium regarding involuntary reassignments in 5 U.S.C. 3395(e). When applicable, an agency must observe this restriction except when doing so would result in the violation of another law taking precedence. For example, an agency may involuntarily reassign a career appointee during the moratorium period if funding for an activity stopped, all the positions in the activity are being abolished in a RIF, or failure to make the reassignment would violate the Anti-Deficiency Act.

Also, an agency may offer a reassignment and, if the offer is acceptable to the appointee, make the reassignment without regard to the moratorium. [See Chapter 3 for information on the moratorium on reassignments.] Agencies should take care to ensure that RIF actions, even when legally permitted, are not used to circumvent the moratorium provisions on removals and involuntary reassignments. To the extent possible and practicable, agencies may want to avoid RIF actions while the moratorium periods are in effect, to avoid even the appearance of circumvention.

Appeals

5 U.S.C. 3595(c) provides a right of appeal to MSPB, under 5 U.S.C. 7701, for career appointees (both probationers and post-probationers) on the competitive procedures taken under a RIF.

Noncareer and Limited Term Appointees and Reemployed Annuitants

This section covers actions affecting SES noncareer, limited term, and limited emergency appointees, as well as reemployed annuitants (i.e., an employee whose annuity under subchapter III of chapter 83 of title 5, United States Code, was continued on reemployment in an appointive position on or after October 1, 1956) holding career appointments.

Under a RIF situation, an agency is not required to use competitive procedures in making reductions from among these groups of employees but may do so at its discretion. Noncareer and limited appointees must be placed on separate retention registers from career appointees and the agency plan should include information regarding the treatment of these employees.

The removal of an employee covered by this section is effected under 5 CFR part 359, Subpart I [See Chapter 8 on Removals.] The employee is not entitled to receive placement assistance from OPM, to be placed in a position outside the SES (except a limited appointee with “fallback” rights as described in Chapter 3), or to appeal to the MSPB.

Records

The agency must retain all records pertaining to a RIF for at least two years from the effective date of the RIF. These records include retention registers and information on efforts made to place the appointee within the SES. The agency shall allow the inspection of its retention registers and related records by an appointee to the extent that they have a bearing on the appointee’s situation.

OPM RIF Placement Program

Statute: 5 U.S.C. 3595(b)(3)

Regulations: 5 CFR 359.603

Eligibility for Priority Placement

OPM provides priority placement assistance to career SES members who successfully completed the SES probationary period and who, but for placement rights accorded under 5 U.S.C. 3595, would be removed from the SES because of a RIF within an agency. Eligible SES members are entitled to priority placement assistance from OPM for a period of 45 calendar days.

This 45-day period begins on the date OPM acknowledges receipt of the agency’s certification that the individual cannot be placed in an SES position in that agency. Agency RIF certifications should be mailed to:

U.S. Office of Personnel Management

Senior Executive Services and Performance Management 1900 E Street NW, Room 7412

Washington, DC 20415

The key to successful RIF placements is partnership; OPM, the agencies, and the executives share the responsibility for working together cooperatively to place career executives affected by a RIF. Agencies are expected to seriously consider referred executives. Executives are expected to join with agencies and OPM and actively search for placement opportunities and to tailor their application packages when they are referred to positions. OPM will promote the partnership, assist the agencies and the executives, and facilitate the placement initiative.

Status during priority referral. During the priority referral period, the executive remains an SES career appointee of the agency that certified him or her as surplus.

Declination of offer. If an SES member turns down an offer for a career SES appointment from any agency to which referred by OPM, OPM’s placement efforts will cease immediately, and all outstanding priority referrals will be cancelled. The appointee may be removed from the SES at the expiration of the agency notice period.

Agency Action

Agency placement action. The agency must place the surplus employee internally in a vacant SES position for which the SES member is qualified.

Agency head certification. If the agency cannot place the surplus SES member in a vacant position, the agency head must certify, in writing, to the Director of OPM that there is currently no vacant SES position in the agency for which the individual is qualified. (By regulation, this certification authority may not be delegated below the Assistant Secretary level in departments, or an equivalent official above the director of personnel in other agencies.) The certification should include a copy of the employee’s RIF notice and a statement describing internal placement efforts made on the employee’s behalf.

OPM acknowledgement. OPM’s 45-day placement assistance program begins after the OPM Director acknowledges receipt of the certification, in writing, to the agency head.

Agency notice to SES member. The agency should notify the SES member that he or she must apply to OPM for placement assistance.

Agency action during OPM placement period. The agency taking the RIF action has a continuing obligation to seek opportunities to place the SES member in an SES position if a vacancy occurs for which he or she is qualified.

Certification on QRB cases. If an agency has certified an SES member as surplus, that agency shall certify, in writing, any QRB case submitted to OPM during the OPM placement period. The certification must state that the RIF’ed executive does not meet the position’s technical qualifications.

SES Member Action

Application for assistance. The SES member must apply to OPM for placement assistance. The individual provides Senior Executive Services and Performance Management a completed, signed, and current application for employment (resume, or equivalent) along with the most recent SES performance evaluation, information about geographic availability, information about the pay level the executive is willing to accept, and a Privacy Act statement that gives permission to release this information to other agencies and other potential sources of employment. If this information is not provided, OPM will consider the individual declined OPM placement assistance.

Resumes. Individuals are encouraged to prepare a one-to-two-page synopsis of their technical and managerial accomplishments, addressing the five executive core qualifications that is suitable for publication.

Tailored applications. Individuals are urged to tailor applications to meet specialized qualifications requirements of the positions to which they are referred in the OPM placement process.

OPM Placement Activity

Information sources. OPM reviews SES vacancy announcements on USAJobs to identify vacant positions to which surplus executives may be referred.

Qualifications review. OPM matches individual qualifications with qualifications requirements of vacant positions, based on information provided by the agency and SES member.

Referral to agencies. OPM will contact agencies where there are vacancies to give advance notice about potential referrals. Informal contacts are followed by formal letters referring surplus executives for particular vacancies and these referral letters specify action the agency must take and set a time limit for response. Executives may be referred to more than one agency at a time. OPM gives the executive a copy of each referral notice.

Temporary space. OPM may provide an additional SES space when appropriate, at the agency’s request, to facilitate a priority placement.

Intervention in the staffing process. OPM has the authority to intervene in the staffing process to make a priority referral at any time before the QRB approves a candidate’s executive qualifications. Such intervention could defer QRB consideration of one or more agency cases until the priority referral has been resolved. However, unless OPM determines that an agency is not giving serious consideration to referrals, it will not intervene in a staffing action after a selection has been approved by the appointing authority.

Action at the end of the placement period. At the end of the 45-day priority placement period, OPM will advise the agency that the placement period expired and summarize the results of the placement activity. The agency may then proceed with actions to separate from the SES the executives who were not placed during the 45 calendar days. 

Agency Action on OPM Referrals

Suspension of Appointment Action. When OPM refers a priority candidate to an agency for a vacant SES position, the agency may not fill that position with anyone from outside the SES or the agency, until OPM informs the agency that the priority candidate was offered an SES position in another agency, or the agency informs OPM why it is not placing the priority candidate.

Consideration of the Referred Executive. The agency must place the referred executive in the position to which referred unless it determines that the individual does not meet the position’s qualifications requirements (see Agency Objections below). The agency must ensure that the selecting official gives a priority referral bona fide consideration for the position. Agencies are strongly encouraged to interview priority referrals.

Alternate position. If there is another SES position in the agency for which the referred executive is qualified and which falls within his/her area of geographic availability, the agency may offer the executive that position instead of the one to which referred.

Pay rate. The agency must match a priority candidate’s current rate of basic pay unless the individual voluntarily agrees to accept a lower rate.

Timeframe. The agency has 10 calendar days to respond in writing to the referral, unless OPM grants an extension. When an extension has been granted, the agency should keep OPM informed of consideration action. If an agency fails to respond to the referral in a timely manner, OPM may intervene in the staffing process or take other appropriate action. 

Agency Objections.

Qualifications. A referred executive is entitled to be placed in the agency unless the head of that agency determines that the appointee is not qualified for the position to which referred. Since all SES members whose performance is not in question meet the basic SES executive qualifications by virtue of QRB certification, any objection to placement of a priority candidate must be based on failure to meet the professional/technical qualifications for the position. Required professional/technical qualifications must be clearly justified by the duties of the position. It is inappropriate for an agency to object to an SES member on the basis that he or she lacks experience that can be gained only in that agency.

Certification to OPM. If an agency declines to place a priority candidate because it determines that the candidate is not qualified for the position, or for any other reason (e.g., cancellation of the position), the agency head (or acting agency head in the absence of the agency head) must certify this decision in writing to OPM. (The agency head may not delegate this authority below the Assistant Secretary level in departments or an equivalent official above the director of personnel in other agencies.) A certification that a priority candidate is not qualified for a position must be accompanied by a copy of the qualifications standard and a detailed explanation of why the candidate is not qualified.

Cancelled positions. If the agency fails to place a priority candidate because the agency cancels the position, the candidate will be entitled to priority consideration for the position if it or a successor position is reestablished in the SES within one year of the cancellation date (and the candidate has not been placed in another SES position). 

RIF in Inspector General Organizations

SES reduction in force provisions in 5 U.S.C. 3595 apply to any Office of Inspector General (OIG) that employs career SES appointees. The Inspector General Reform Act of 2008, PL 110- 409, October 14, 2008 (5 U.S.C. App Inspector General Act of 1978 §6(e)) provides that the Office of Inspector General is a separate agency and the Inspector General (IG) is the head of that agency for all provisions related to the Senior Executive Service (as determined by the Office of Personnel Management). However, as provided in 5 U.S.C. 3591, the term “agency” in 5 U.S.C. 3595 has the meaning set forth in 5 U.S.C. 3132(a)(1). Consistent with this, 5 CFR 359.601(b)(3) specifies that “agency” means an executive department or an independent establishment for purposes of 5 CFR 359 subpart F, Removal of Career Appointees as a Result of Reduction in Force. OPM considers the statutory and regulatory definitions of agency to govern a career appointee’s placement right described in 5 U.S.C. 3595(b)(3)(A) and 5 CFR 359.602(b). Even though an OIG is a separate agency, it is not an executive department or an independent establishment. Accordingly, the following instructions apply.

Competitive area. As the head of a separate agency for purposes of SES statutes, an IG may determine when SES RIF is required in the OIG and establish any OIG competitive area separate and apart from the parent agency. An OIG should not be included in an SES RIF conducted by a parent agency.

Competitive procedures. Before conducting an SES RIF within the OIG, the IG must establish competitive procedures in writing to be used in identifying which career appointees will be displaced in any reduction in force of career appointees within the OIG. If the IG wants to adopt or adapt existing written competitive procedures of the agency within which the OIG is established, the IG must establish them in writing for the OIG and assure the written procedures meet the requirements of 5 CFR 359.602(a).

Agency certifications of surplus executives. Upon identifying through competitive procedures any career appointees to be displaced, the IG must determine and certify to OPM that there are no positions in the Office of Inspector General for which the surplus career appointee qualifies. However, 5 U.S.C. 3595(b)(3)(A) also requires the head of the agency within which the OIG is established to determine and certify that there are no vacant non-OIG SES positions within the agency for which the executive qualifies. To confirm the career appointee’s assignment entitlement has been addressed, the IG and the agency head must each provide the certification required under 5 CFR 359.603(a) to enable OPM to initiate placement efforts affecting other agencies.

OPM priority referrals to agencies. If OPM directs a priority referral to an OIG, the IG must consider the career appointee for SES vacancies within the OIG and OPM will accept technical objections from the IG. Such a referral will not obligate the head of the agency within which the OIG is established.

Similarly, if OPM directs a priority referral to an agency head, the agency head must consider the career appointee for non-OIG SES vacancies within the agency and OPM will accept technical objections from the agency head. The referral will not obligate the IG unless OPM so provides.

Placement upon removal through SES RIF. Under 5 CFR 359.703, the IG is responsible for placing an executive removed from the OIG under 5 U.S.C. 3595(b)(4) or (5) in an appropriate non-SES civil service position within the OIG, arranging placement in an appropriate position in the agency within which the OIG is established, or arranging transfer to an appropriate position in another agency.

Career Transition Regulations

In accordance with 5 CFR 330, Subparts F and G, agencies are required to offer career transition services to their employees to give them the skills and resources needed to find other employment. Services may include such things as skills assessment; resume preparation counseling, and job search assistance. These career transition services are available to all employees, including SES members. Although not required, agencies are encouraged to develop career transition and outreach programs especially for executives that include information about job search techniques as well as employment opportunities in the private as well as the public sector.

Agencies are also required to establish Career Transition Assistance Plans (CTAP) and Interagency Career Transition Assistance Plans (ICTAP), which provide priority selections to well-qualified RIFed employees before other candidates from within or outside the agency and for reemployment priority to former employees separated through RIF. These programs and requirements do not apply to the SES, although they do apply to SL and ST employees in the competitive and excepted service in certain cases.

 

FURLOUGHS

Statute: 5 U.S.C. 3595a

Regulations: 5 CFR Part 359, Subpart H

“Furlough” means placing an SES appointee in a temporary status without duties and pay because of lack of work or funds, or other non-disciplinary reasons.

Former career SES appointees who accepted appointments at level V of the Executive Schedule or higher and elected to retain SES leave benefits under 5 U.S.C. 3392(c) are subject to furlough at the agency’s discretion.

Short Furloughs

A short furlough is one that will last for 30 consecutive calendar days or less (or for 22 workdays or less if the furlough does not cover consecutive days) within a 12-month period beginning on the first day of the furlough.

An agency need not use competitive procedures in selecting the SES appointees to be furloughed for short periods. However, it should make its selections for sound management reasons. 

Long Furloughs

A long furlough is one that will last for more than 30 consecutive calendar days (or for more than 22 workdays if the furlough does not cover consecutive days) within a 12-month period beginning on the first day of the furlough. The furlough may not exceed one year.

An agency may furlough an SES appointee for more than 30 days only when it intends to recall the appointee to a duty status with pay within one year from the beginning of the furlough. A furlough should not be used when an agency knows it will have to separate an SES appointee through a RIF action when the furlough ends.

An agency must use competitive procedures in selecting SES career appointees for long furloughs of more than 30 days. Agencies may use the same procedures they established for competition for job retention under a RIF situation.

See additional Furlough Guidance for information on shutdown furloughs or administrative furloughs. 

Requirements for Career Appointees

Notice Requirements. An agency must give the career appointee a written notice at least 30 calendar days before the effective date of the start of the furlough. The notice must include the following information:

• the reasons for the agency decision to take the furlough action;
• the expected duration and the effective dates of the furlough;
• the basis for selecting the appointee for furlough when some, but not all, SES appointees in a given organizational unit are being furloughed;
• the place where the appointee may inspect the regulations and records pertinent to the action;
• The reason if the notice period is less than 30 days;
• the appointee’s right to appeal the furlough to MSPB, the time limit for making an appeal and the MSPB office to which the appeal should be sent; and
• if the appointee is serving a probationary period, the effect (if any) on the duration of the probationary period. [See information on Probationary Periods in Chapter 2]

The 30-day notice period may be shortened or waived in the event of unforeseen circumstances, such as sudden emergencies requiring immediate curtailment of activities, or when furlough of employees is necessary to avoid violation of the Anti-Deficiency Act. If the notice period is shortened or waived, the agency must include the reason in the notice.

Agencies should inform SES members who are being put on long furloughs of any changes to their retirement, health benefits, or life insurance coverage during such furloughs.

Appeals. The furlough of an SES career appointee (for any length of time) is appealable to the MSPB. 

Requirements for Noncareer, Limited Term or Limited Emergency Appointees and Reemployed Annuitants

An agency may furlough an SES noncareer, limited term, or limited emergency appointee, or a reemployed annuitant holding a career appointment, under agency designated procedures.

Agency procedures should meet certain minimum requirements. The appointee should be given a written notice, delivered at least one day prior to the beginning of the furlough, and it should indicate the reasons for, the duration of, and the effective dates of the furlough.

The furlough of noncareer and limited appointees and reemployed annuitants (i.e., an employee whose annuity under subchapter III of chapter 83 of title 5, United States Code, was continued on reemployment in an appointive position on or after October 1, 1956) is not appealable to the MSPB.