Sections
10.12.07 Reduction-In-Force Appeal/Complaint Rights
10.12.01
PURPOSE
This subchapter sets forth the policies and procedures of the National
Institute of Standards and Technology (NIST) for reduction-in-force (RIF)
actions.
10.12.02
SCOPE
This subchapter applies to all NIST employees except those in the Senior
Executive Service (SES).
RIF procedures for Senior Executive Service positions are contained in:
--Title 5 United States Code (U.S.C.) Section 3595: www4.law.cornell.edu/uscode/5/3595.html;
--Title 5 Code of Federal Regulations (CFR) Part 351: www.opm.gov/rif/regs/5cfr351.txt;
--Office of Personnel Management (OPM) Senior Executive Service Desk
Guide; and
--Department of Commerce (DOC) Executive Personnel Policy Manual.
10.12.03
POLICY
It is NIST policy to administer the provisions of the following laws,
regulations, policies, and procedures:
--Title 5 U.S.C., Chapter 35 Subchapter 1: www4.law.cornell.edu/uscode/5/pIIIspBch35schI.html;
--Title 5 CFR, Part 351: www.opm.gov/rif/regs/5cfr351.txt;
-- OPM RIF Reference Manual, Module 3: www.opm.gov/rif/handbook/rih0398.htm;
--Department Administrative Order (DAO) 202-351: http://ohrm.doc.gov/handbooks/dep_orders.htm;
--NIST Alternative Personnel Management System (APMS) in accordance
with Public Law 99-574 and made permanent pursuant to Public Law 104-113:
http://www.opm.gov/fedregis/1997/62r54604.txt;
--NIST APMS Operating Procedures; and
--Policies and procedures of this subchapter governing the processing
of RIF actions at NIST.
All of the above references are available for review in the Human Resources Management Division (HRMD).
It is NIST policy that all employees in the excepted service and Tenure Group 3 employees in the competitive service are not eligible for bump and retreat rights.
NIST is not required to fill vacant positions through RIF procedures.
When a vacant position is filled with a RIFed employee, the guidelines
and procedures in this subchapter are followed with regard to retention
standing.
10.12.04
DEFINITIONS
a. Assignment Rights - The right of an employee to be
assigned (by bump or retreat) to a different competitive level held by
an employee with lower standing on a retention register.
b. Bump - A RIFed employee's right of assignment to a position for which qualified, which is:
--in the same competitive area, will last at least three months, and
have the same type of work schedule;
--in a different competitive level;
--in the same or next lower payband for APMS employees, or in the same
or next three lower grades for all other employees; and
--occupied by an employee in a lower Tenure Group or in a lower Tenure
Subgroup within the same Tenure Group.
c. Career Path - A career path aggregates comparable occupations that have parallel career patterns and are suitable for similar treatment in staffing, classification, pay, and other personnel functions. The four career paths are: Scientific and Engineering (ZP), Scientific and Engineering Technician (ZT), Administrative (ZA), and Support (ZS).
d. Certificate of Expected Separation - A notice issued to a competing employee up to six months prior to the effective date of a RIF when it is believed the employee will be separated from Federal employment by reduction-in-force procedures. The certification may not be used to satisfy the 60-day notice period and may not be appealed to the Merit Systems Protection Board. Its primary purpose is to enable the employee to participate in dislocated worker programs under the Workforce Investment Act of 1998 administered by the United States Department of Labor, to receive career transition services as provided by the DOC Career Transition Assistance Plan or if eligible, to retire based on involuntary separation.
e. Competitive Area - The RIF competitive area outlines the boundary in which the employee in the abolished position competes in a RIF. Within a geographic area, each of the four career paths in the APMS is a separate competitive area. The four career paths are: Scientific and Engineering (ZP), Scientific and Engineering Technician (ZT), Administrative (ZA), and Support (ZS). All other employees in each geographic area are in a separate competitive area. A list of the current competitive areas is available at: http://www-i.nist.gov/admin/pers/rif/compareas.htm.
f. Competitive Level - Positions occupying the same competitive level are those in the same RIF competitive area, occupational series, type of work schedule, and payband or grade which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that the incumbent of one position can successfully perform the critical elements of any other position in the level upon assignment to it, without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee. This determination is made on the basis that all jobs in a competitive level are so similar that the agency may readily assign an employee in one position to any of the other positions in that competitive level without changing the terms of the employee's appointment and without unduly interrupting the agency's work program. For example, all full-time accounting positions in the same payband which have essentially the same duties and require the same skills are in the same competitive level. In contrast, a particular physicist position usually occupies its own competitive level due to the unique skills and knowledges required.
g. Cutoff Date - The date after which no new annual performance ratings will be used to calculate the RIF Service Computation Date (SCD). The rating of record for NIST is the rating that exists in the National Finance Center system 60 days prior to the issuance of the Specific Notice (or as otherwise determined) and is used to establish the RIF SCD.
h. Modal Rating - The summary rating level assigned most frequently among the actual ratings of record that are: (a) assigned under the summary level pattern that applies to the employee’s position of record on the date of the RIF; (b) given within the same competitive area; and (c) on record for the most recently completed appraisal period prior to the cutoff date.
i. Paybands and Grade - RIF regulations have been modified for the NIST APMS by substituting the following:
--for assignments rights: “one band” for “three grades” and “two
bands” for “five grades”
--for severance pay: “one band” for “two grades” and for “two
grade or pay levels”
When retained grade applies, retained grade means retained career path and payband.
j. Rating of Record -The performance rating prepared at the end of an appraisal period for performance of agency-assigned duties over the entire period and the assignment of a summary level within a pattern as specified in 5 CFR 430.208(d). For employees not subject to 5 U.S.C. Chapter 43, it means the officially designated performance rating, as provided for in the agency’s appraisal system that is considered to be an equivalent rating of records as defined in 5 CFR 430.201(c).
k. Release from Competitive Level - Within the competitive level, an employee in the lowest Tenure Group and Tenure Subgroup with the least amount of service based on their RIF SCD, is released from the competitive level.
l. Retention Register - A printout of employees by competitive area, occupational series, payband/grade, Tenure Group, Tenure Subgroup, length of service augmented by performance credit, and competitive level. A retention register is used for determining who will be released from a competitive level when a position is abolished and which positions are to be considered for the released employee.
m. Retention Standing - An employee's standing in their competitive area is determined by their Tenure Group, veterans preference, and RIF SCD.
n. Retreat - An employee's right of assignment to a permanent position formerly held (or an essentially identical position) in a federal agency, which is:
--in the same competitive area, will last at least three months, and
have the same type of work schedule;
--occupied by an employee in the same Tenure Group and Tenure Subgroup
with a lower RIF service computation date; and
--at the same or next lower payband for APMS employees, or at
the same or three grades lower for all other employees. For an employee
with a compensable service-connected disability of 30 percent or more,
two paybands lower for APMS employees or five-grades lower for all other
employees.
o. RIF Service Computation Date (SCD) - The RIF SCD is used as the basis for ranking employees within a Tenure Subgroup. It is comprised of actual federal service including active military time plus additional service time based on performance ratings. The rating that exists in the National Finance Center system 60 days prior to the issuance of the Specific Notice (or as otherwise determined) is the rating of record for establishing the RIF SCD.
(1) An APMS employee with an overall performance score in the top 10 percent of scores within a pay pool is credited with 10 additional years of service for retention purposes. The total credit is based on the employee's three most recent annual performance ratings of record received during the 4-year period prior to an established cutoff date, for a potential total credit of 30 years. No RIF credit converts to this system from any other performance appraisal system.
(2) Federal Wage System employees receive credit for the 3 most recent annual performance ratings of record received during the 4-year period prior to an established cutoff date. All employees rated eligible will be assigned an additional 12 years service credit for each eligible rating of record. Additional retention service credit shall then consist of the mathematical average (rounded in the case of a fraction to the next higher whole number) of the employee’s applicable ratings of record for a maximum retention service credit of 12 years. An employee who has not received any rating of record during the 4-year period shall receive credit for performance based on the modal rating that applies to the employee’s official position of record at the time of the RIF. Ratings of record will transfer with an employee who transfers from another federal agency to NIST. A service credit of 12 years will be assigned for all summary levels (level 3/Fully Successful or equivalent; level 4; and level 5/Outstanding or equivalent). Additional retention service credit shall then consist of the mathematical average (rounded in the case of a fraction to the next higher whole number) of the transferred employee’s applicable ratings of record for a maximum retention service credit of 12 years.
p. Specific Notice - A notice issued to an employee by the Human Resources Officer (HRO), HRMD informing the employee of the specific RIF action to be taken, and the effective date of the action as a result of their position being abolished.
q. Tenure Group - A grouping of employees based on their type of appointment.
(1) Competitive Service:
Tenure Group 1 - includes career employees who are not serving probationary periods. New managers and supervisors who are already career employees but who are serving additional probation for their managerial/supervisory duties fall into this category.
Tenure Group 2 - includes career-conditional employees and career employees who are serving initial-appointment probationary periods.
Tenure Group 3 - includes employees serving under time limited appointments of longer than one year, (e.g., Term Appointments, Temporary Appointment Pending Establishment of a Register (TAPER), indefinite appointments, status quo appointments, or a provisional appointment). Employees serving in Tenure Group 3 in the competitive service are eligible for release from competitive level; but are not eligible for bump and retreat.
Tenure Group 0 - employees on temporary appointments limited to one year or less. Employees on temporary appointments do not have retention rights under RIF.
(2) Excepted Service: Employees in the excepted service have the same Tenure Groups as in the competitive service described above.
r. Tenure Subgroups - Each Tenure Group is divided into three subgroups based on veterans preference eligibility.
(1) Competitive Service:
Subgroup AD - for veterans with compensable, service-connected
disability of 30 percent or more.
Subgroup A - for veterans not included in subgroup AD.
(Note: Not all veterans qualify for veterans credit for RIF. Credit
is allowed only for certain periods of military service. Further,
retired military only receive veterans credit under certain circumstances.)
Subgroup B - for non-veterans.
(2) Excepted Service: Employees in the excepted service have the same Tenure Subgroups as in the competitive service described above.
s. Undue Interruption - A degree of interruption that would prevent the completion of required work by the employee 90 days after the employee has been placed in a different position. The 90-day standard should be considered within the allowable limits of time and quality, taking into account the pressures of priorities, deadlines, and other demands. However, a work program would generally not be unduly interrupted even if an employee needed more than 90 days after the RIF to perform the optimum quality or quantity of work. The RAP may decide to extend the 90-day standard if placement is made to a low priority program or to a vacant position.
t. Veterans Preference - Authorized under 5 U.S.C. 2108 (which is available by accessing: www4.law.cornell.edu/uscode/5/2108.html for individuals who served on active duty, under honorable conditions:
(1) during a war, in a campaign or expedition for which a campaign badge has been authorized, or during the period from April 28, 1952, to July 1, 1955;
(2) for more than 180 days, any part of which occurred after January 31, 1955, and before October 15, 1976; or
(3) for any other period as authorized by law. Preference may
also be given to a persons spouse, widow, widower, or mother when certain
legal requirements are met. Preference is divided into three subgroups
reflecting entitlement for retention purposes (see Tenure Subgroups above).
Note: Not all veterans qualify for veterans preference under RIF.
Preference will be determined by period(s) of military service, rank, and
type of retirement from the military, if applicable.
10.12.05
RESPONSIBILITIES
a. Managers and Supervisors have the responsibility for
consulting with HRMD, and deciding which positions will be abolished due
to lack of work, lack of funds, or reorganization. Managers then
review possible placement options for employee(s) occupying those affected
positions into other vacant positions within the Operating Unit, (OU).
If the OU is not able to place the affected employee(s), the employee(s)
are informed verbally, and vacancies and other placement possibilities
are reviewed within NIST for them. When it is not possible to reassign
the affected employee(s) to an appropriate vacancy, the OU Director obtains
NIST approval to proceed with conducting the RIF. A RIF implementation
meeting is held to discuss the circumstances of the RIF and the procedures
and timeframes that will be followed. The participants attending
the RIF implementation meeting are: the OU Senior Management Advisor (SMA),
area Administrative Officer (if SMA chooses), Division Chief, Group Leader,
Human Resources (HR) Specialist, RIF Program Manager, Labor Management
Relations Specialist (if union employees will be RIFed) and a representative
from the Budget Division.
The affected employee(s) are provided with outplacement counseling, informed in writing of the proposed RIF, and requested to submit an updated OF-612, Optional Application for Federal Employment. Upon submission of an SF-52 (Request for Personnel Action) and the justification memorandum for the RIF to the HRMD (at Boulder, to the Mountain Area Service Center (MASC), HR Division), the HR Generalist will prepare a transmittal to forward the case to the DOC for clearance. (At Boulder, the MASC HR Generalist will forward the justification memorandum to the Gaithersburg HR Generalist who will prepare the transmittal.)
b. The Human Resources Management Division at Gaithersburg (at Boulder, the MASC HR Division) determines whether the employee is released from their competitive level, reviews the employee's work history for possible retreat, analyzes the qualifications of the employee based on the OPM Qualifications Standards, and identifies positions at NIST for possible bump and retreat. NIST is not required to fill vacant positions through RIF procedures; however, it is NIST policy to consider vacant positions in the RIF process. When a vacant position is filled with a RIFed employee, the guidelines and procedures in this subchapter will be followed with regard to retention standing.
c. The RIF Assignment Subpanel (RAP) which consists of
two subject matter experts, appointed by the RAP Chair, reviews positions
identified for bump. The Subpanel members review the affected employee's
qualifications and the specific qualifications required for the positions
under consideration. The number of Subpanels to be convened is determined
by the number of different occupational series for which the RIFed employee
qualifies. Also, additional Subpanels may be convened if the number
of positions to be reviewed in a specific series is more than can be adequately
handled by one Subpanel. Positions for which the
Subpanel determines the RIFed employee cannot bump without undue interruption
are eliminated from further consideration. Other positions are referred
to the RIF Assignment Panel. A HR Specialist serves as Technical
Advisor and Executive Secretary to a Subpanel.
Identified positions for retreat are reviewed by the HR Specialist and may be referred to a RIF Subpanel if there are questions as to whether the position is the same or essentially identical to a position formerly held on a permanent basis by the released employee. If there are no questions, then the identified positions for retreat are referred directly to the RAP.
d. The RAP which consists of a representative from each OU appointed by the NIST Director or Deputy Director, reviews positions referred by RIF Subpanels. The Panel determines which positions, if any, require further information to determine whether the RIFed employee can perform the duties of the position without undue interruption. The Panel notifies the organization in which the incumbent of the affected position is located. As appropriate, the Panel requests information and documentation, which will assist the Panel in making its recommendations. The RAP is responsible for making final recommendations to the NIST Human Resources Officer of the best offer of a position that it is possible to make (if any) either through retreat or bump. Also as appropriate, the Human Resources Officer and the Panel meet to discuss the recommendations. A senior HR Specialist serves as Technical Advisor and Executive Secretary to the Panel. The charter for the RAP is available by accessing the following website: http://www-i.nist.gov/admin/pers/hrlibrary.htm.
e. The NIST Human Resources Officer makes the final decision
on the action based on the recommendation of the RAP.
10.12.06
WRITTEN NOTIFICATION
a. Certification of Expected Separation (optional notice)
- Issued to the employee by the NIST Human Resources Officer stating that
it is believed the employee will be separated from federal employment by
RIF procedures as a result of their position being abolished.
b. Specific Notice (mandatory notice) - Issued to the employee by the NIST Human Resources Officer informing the employee of the specific RIF action to be taken and the effective date of the action as a result of their position being abolished.
c. Notice Period - The effective date of a RIF action cannot
be any earlier than 60 calendar days (not including the date of receipt
of the notice or the effective date) after the employee's receipt of the
specific notice.
10.12.07
REDUCTION-IN-FORCE APPEAL/COMPLAINT RIGHTS
An employee whose position is abolished has a right to appeal the RIF
action to the Merit Systems Protection Board (MSPB) within 30 days after
the effective date of the RIF or to file an Equal Employment Opportunity
(EEO) complaint within 45 days after the effective date of the RIF.
Additionally, union members can file a grievance under the Negotiated Agreement
rather than filing an appeal to the MSPB. An employee may not file
simultaneously with more than one of the above.
10.12.08
RECORDS
Any regulation or record used in determining an employee’s retention
rights for reduction-in-force is available for inspection in the HRMD on
or after the Specific Notice is issued. Copies of these records may
be obtained through the Freedom of Information Act after the effective
date of the RIF.