Employees who are subject to a Reduction in Force (RIF) are entitled to several priority placement programs, including the Reemployment Priority List (RPL). Each of these programs has its own mechanics, and so it is important for employees subject to RIFs to understand their rights under each program. Although the RPL is also available to certain employees returning from uniformed service or who have recovered from a compensable workplace injury, this blog entry will focus on RPL for employees subject to RIFs.
Employee Requirements
To be eligible for RPL placement, the employee must meet these basic requirements under 5 C.F.R. § 330.203(a):
- Must be serving in an appointment in the competitive service in tenure group I or II;
- Must have received a separation notice (including separations resulting from a RIF) that has not been cancelled or rescinded;
- Must have a performance rating of at least fully successful (Level 3) on their most recent performance evaluation;
- Must not have declined an offer via their bump and retreat rights of a position of similar work schedule and pay as their previous position.
Note that an employee must affirmatively register for the RPL program–they are not automatically placed on the RPL. Instead, the employee must send a written application to their employing agency indicating a desire to be placed on the RPL. This application must be submitted to the agency on or before their separation date as specified in their RIF separation notice. 5 C.F.R. § 330.206.
If an employee successfully registers for the RPL, they remain on the RPL for 2 years from their date of separation under the RIF.
In general, an employee must be responsive to agency inquiries while on the RPL and continue to remain affected by the RIF to stay on the RPL. An employee can be removed from the RPL for several reasons including: 1. if they fail to respond to an agency inquiry about a job from the RPL, 2. if the employee’s RIF separation is rescinded, 3. if the employee otherwise separates from the agency before the RIF separation (including for retirement), or 4. if the employee accepts another comparable position in any agency.
Agency Responsibilities
The agency has specific requirements they must complete in maintaining the RPL:
- It must maintain an RPL for each local commuting area where it has RPL eligible employees and establish policies that indicate how the agency will assist RPL eligible employees;
- It must give each RPL eligible employee information about the RPL when it sends a RIF separation notice; and
- It must register an RPL eligible employee on the correct RPL within 10 days of receiving the employee’s application.
In general, the employee can only register for the RPL for the local commuting area from which they are separated, based on the duty station of their position of record when they receive their RIF notice. A “local commuting area” is the geographic area usually considered a single area for employment purposes and includes any population center (or two or more neighboring ones) and the surrounding localities where people live and can reasonably be expected to travel back and forth daily to their jobs. However, the agency can designate a different local commuting area if all positions in the employee’s area have been abolished, and special rules apply to certain other situations (for example, where the RIFfed employee was stationed overseas).Within that local commuting area, the agency is required to give priority to individuals on the RPL list for all selections, irrespective of which agency component the position is associated with. See 5 C.F.R. §§ 330.101(a), 330.201(c).
Employee Rights
Generally, an agency cannot place an external candidate into a competitive service position over an employee who is qualified and on the RPL, unless the RPL employee has declined the position first. See 5 C.F.R. § 330.210. However, a number of specific exceptions to this rule apply. See 5 C.F.R. § 330.211. For instance, applicants with veteran preference eligibility or other reemployment or restoration rights may have priority placement rights over the RPL employee. Further, the agency is permitted to hire an internal competitive service candidate over an RPL candidate, provided that any Career Transition Assistance Plan (CTAP) priority rights are applied first. 5 C.F.R. §§ 330.201(a), 330.211(a); 73 Fed.Reg. 51944, 51946 (Sept. 8, 2008).
Under OPM’s RPL regulations, agencies may opt for one of several placement methods for RPL employees, some of which require RPL employees to apply for specific vacancies before they receive RPL priority rights for the given vacancy. See 5 C.F.R. § 330.213. Accordingly, it is important for RPL employees to know the specific RPL placement method that applies to them.
Violations of the RPL Regulation
Some common ways that an agency may violate the RPL regulations include situations where:
- Agency hires someone in violation of the rights of an employee on the RPL for a competitive service position;
- Agency misinforms the employee of their rights under the RPL;
- Agency fails to inform the employee of available vacancies, if the agency is using an application-based placement method;
- Agency improperly removes the employee from the RPL.
Right of Appeal if RPL Rights are Violated
An employee who believes the agency violated his or her RPL rights by employing another person who otherwise could not have been appointed properly can file an appeal with the Merit Systems Protection Board (MSPB) to challenge the agency’s action. 5 C.F.R. § 330.214. The appeal must be filed no later than 30 days after the effective date of the agency’s appointment of another person over the RPL employee. See, e.g., Boyd v. Dept. of Justice, MSPB Docket No. SF-0330-11-0421-I-1 (July 11, 2011) (Slizeski, A.J.). The MSPB can order remedies such as extension of RPL eligibility and award attorney’s fees and costs. If the employee should have received a job offer if RPL priority had been properly granted, then the MSPB can also order the agency to retroactively reconstruct the prior selection and require that a position be offered to the employee with back pay. See 116 King v. Dept. of the Navy, 98 M.S.P.R. 547 (2005) and 100 M.S.P.R. 116 (2005), aff’d, 167 Fed. Appx. 191 (Fed. Cir. 2006); Welby v. Dept. of Agriculture, 10 M.S.P.R. 17 (2006) (citing Hudson v. Dept. of the Navy, 86 M.S.P.R. 398 (2000), aff’d, 15 Fed. Appx. 812 (Fed. Cir. 2001)).
A second form of MSPB appeal right exists if the agency fails to provide a RIFfed employee with notice of their rights to register for RPL under 5 C.F.R. §330.204(b)(1), as a constructive denial of RPL rights. See, e.g., Boyd v. Dept. of Justice, MSPB Docket No. SF-0330-11-0421-I-1 (July 11, 2011) (Slizeski, A.J.) at fn. 5 (citing Sturdy v. Dept. of the Army, 440 F.3d 1328, 1337 (Fed. Cir. 2006) and Roberto v. Dept. of the Navy, 440 F.3d 1341, 1353 (Fed.Cir. 2006)).
Other forms of RPL rights violations unfortunately are outside MSPB jurisdiction. See, e.g., McCorkle v. Dept. of Defense, MSPB Docket No. SF-0330-03-0255-I-1 (June 10, 2003) (Berg, A.J.).
In cases where the agency has both an RPL and an internal priority placement program (PPP), or where it has an OPM-approved PPP instead of an RPL, and where the agency has allegedly violated both programs in a nonselection, the MSPB has jurisdiction over both violations. See id. (citing Russo v. Dept. of the Navy, 85 M.S.P.R. 12, 17 (1999)); Roberto v. Dept. of the Navy, 440 F.3d 1340, 1350 (Fed.Cir. 2006).
If you are a federal employee subject to a RIF who wishes to seek advice regarding your RPL rights, consider contacting Gilbert Employment Law to request an initial consultation.