One of the first furlough decisions by the Merit Systems Protection Board (MSPB) has been issued in a case from the Treasury Department. The case involved discovery issues, but the MSPB also provided information on how it will examine furlough decisions.
It appears that the MSPB will treat adverse action furloughs as being similar to a reduction in force (RIF). Employees were furloughed due to lack of funds, and management must show that the manner of the furloughs was a reasonable reaction to the loss of funds.
The MSPB notes that the agencies have to prove the furlough was taken to promote the efficiency of the service, but the adverse action of a furlough is different from a disciplinary adverse action, which is tied to the particular employee’s behavior.
As we have previously noted, because of the potential for abuse by managers by displays of favoritism, the MSPB points out the agency must apply the adverse action furlough with a “fair and even manner” and with “uniformity and consistently.” The standard is similar to that occurs during an RIF.
One of the more significant points is that the agency is required to apply the furlough to similarly situated employees in a similar manner and it must explain deviations with “legitimate management reasons.”
This could be the most problematic element of the furloughs, and depending on the skill or incompetence of the managers, may be the most likely grounds for a successful employee appeal.
If agency managers deviate from within a group of similar employees, they will have to articulate specific, factual reasons for the deviation; this presents the greatest opportunity for identifying unsupported and invalid differentiations between employees.
Source: Fedsmith.com, “MSPB Issues First Furlough Decisions and Indicates What’s Ahead in the Appeals to Come,” Bob Gilson, September 22, 2013