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MSPB finds furloughs not inefficient enough

Last year's sequestration and the furloughs that followed for many federal government employees caused a massive increase in the number of appeals to the Merit Systems Protection Board (MSPB). That agency, which typically handles a few thousand appeals in a year saw its caseload skyrocket to more than 30,000, the majority of which were from the Department of Defense.

Many of these furlough appeals have argued that the furlough caused inefficiencies, which seemingly would make it difficult for the agency to claim that the furlough promotes the "efficiency of the service." The MSPB, however, disagreed in a recent decision, where they noted that such inefficiencies were the natural result of any furlough.

The fact that "delays, mission failures, and cancellations relating to administrative or day-to-day operations" are inefficient, does not mean that they are inefficient enough to cause the furlough to fail the "efficiency of the service" test.

The MSPB noted that for furloughs, the agency managers have the discretion to determine how best to use limited resources within the agency, and that the "efficiency of the service" test does apply to whether similarly situated employees are treated similarly.

As with many employment discrimination law questions, a red flag is raised anytime employees doing the same type of work are treated differently, and the agency cannot point to any legitimate reason for the disparate treatment.

With respect to the furloughs, if an employee or small group of employee were able to show that they were subjected to a furlough that differed substantially from those of other federal employees within their group or division, they may be able to successfully raise a claim due to that furlough.

Fedweek, "MSPB Gives Management Wide Leeway in Furloughs," August 21, 2014

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