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MSPB favoring agencies in furlough rulings

Last year's furloughs of federal employees caused by the sequestration resulted in an unprecedented number of appeals being brought by federal employees to the Merit Systems Protection Board (MSPB), the federal agency that hears cases involving employee disciplinary and termination. About 38,000 appeals were filed with the MSPB, which is more than six times the number heard in an average year.

The MSPB has reported that through March 31 of this year, it has affirmed every sequestration furlough case it has heard. The furloughs were caused by the failure of Congress to agree to budget cuts. Sequestration forced agencies to furlough federal employees for various amounts of time throughout the year.

While a furlough, which required employees take unpaid time off, could potentially be reversed by the MSPB, in this circumstance, employees have lost every appeal. This can be attributed to the fact that entire departments or divisions were often furloughed.

For an employee who could receive back pay with interest, the best chances of reversing an agency decision like this is if they were singled out, and received different treatment than others with in the same group of similarly situated employees.

The MSPB consolidated many of the appeals, due to the similar nature of the claims. One attorney quoted by the Washington Post noted that the MSPB declines to examine agency rationale in issues involving funding, as that is an area reserved for management discretion.

When the agency asserts it had to furlough a significant group, or all, employees for a period time due to lack of funds, the MSPB defers to the discretion of the agency.

However, the MSPB has only reviewed about 2,000 of the 38,000 appeals pending, so questions involving the sequestration furloughs dominate the dockets of the MSPB's hearing officers for a significant period.

Source: The Washington Post, "Federal employees striking out in furlough appeals," Eric Yoder, June 3, 2014

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