Do You Need a Furlough Lawyer?
Have agency budget cuts led the government to furlough employees in a way that is discriminatory or retaliatory?
- Are other employees with worse performance than you avoiding furloughs because of favoritism by your supervisor?
- Are your supervisors abusing their discretion to issue furloughs in the wake of funding reductions?
- Have you been marginalized and your career jeopardized because of your supervisor’s unjust decision to furlough you?
Slashing budgets has been common in government agencies in recent years, and a number of government employees have been furloughed as a result. Although government employers have discretion to issue sequestration furlough as needed, the anti-discrimination and anti-retaliation laws still apply. Employers should not use budget cuts as a shield to deal out furloughs because of race, gender, age, disability, or whistleblowing. You can fight back against a discriminatory or retaliatory furlough, and make sure that the burdens of budget cuts are shared in the way that keeps the agency focused on the mission of public service.
People ask us:
The attorneys at The Employment Law Group® Law Firm firm are experienced in representing federal employees in a broad range of cases, including discrimination, retaliation, harassment, and whistleblowing. Any of these issues may arise in the context of an improper sequestration furlough.
TELG proved before the MSPB that a Veterans Administration employee was passed over for a promotion in retaliation for efforts to keep patients safe. TELG worked to establish that a whistleblower under the Whistleblower Protection Act (WPA) does not need to prove that he disclosed an actual violation of the law to be protected by the WPA. And TELG has won default judgment against government agencies that failed to respond properly to employee complaints.
Important statutes in this area of law:
Unlawful employment practices; enforcement; application to those over 40 and compulsory retirement
Employee Protections; claims handling by the Office of Special Counsel
Notable TELG cases in this area of law:
This case established that a whistleblower under the Whistleblower Protection Act does not need to prove that he disclosed an actual violation of the law, but instead that he had a reasonable belief that there was a violation of a law, rule, or regulation.
TELG client Jennifer Sticha won default judgment against agency after agency failed to respond to Sticha’s complaint.
If you win a claim for discrimination, harassment, or retaliation, you may be entitled to reinstatement, damages to compensate you for the harm to your career, and you may be able to recoup your attorneys’ fees.
As with all legal claims, deadlines are crucial. Deadlines for federal employees are often much shorter than those for private sector employees, with some deadlines as short as 45 days. Do not delay in contacting an attorney if you believe you have been furloughed for discriminatory or retaliatory reasons.
Frequently Asked Questions
What are some examples of sequestration furloughs that might be illegal?
If you believe you were singled out for a furlough for discriminatory reasons, or as retaliation for some action you properly took (such as blowing the whistle on fraud or filing a sexual harassment claim), you may appeal the action. This might be supported if, for instance, you got a furlough notice but no one else in your department did.
Under sequestration many furloughs will be broad-based — everyone in a job function or department, for example — but even a broad action might be discriminatory if it applied to job functions held mostly by women, for instance, while exempting comparable job functions held mostly by men.
Another example: If your furlough is handled differently from everyone else’s — if you are required to take a furlough day each Tuesday, for instance, while others take their furlough day on Friday — that might be grounds for an appeal, especially if you were singled out for discriminatory reasons, or as retaliation.
Or your agency might simply handle the furlough process incorrectly, making it invalid. You might get a furlough notice despite being exempt, for instance, or you might not get proper notice. Read on for how the process should work.
Can I be furloughed?
Generally, most federal employees are subject to administrative furlough. But some people are protected by law. For instance, employees of the U.S. Postal Service won’t be hit by the sequester because their salaries are not funded by the U.S. Treasury. Political appointees who are confirmed by the Senate are protected because they’re not covered by federal leave policies. And foreign nationals who work for the federal government also are exempt. In addition, individual agencies may protect certain job functions from furlough for reasons including public safety — and some agencies may avoid furloughs entirely.
If you believe you were furloughed even though you should have been exempt, you can appeal the action.
How do I know whether I will be furloughed?
Many government agencies are announcing their furlough policies publicly; here is a Web page that is tracking such announcements. No matter the policy, however, each employee should receive an official SF-50 furlough notice at least 30 calendar days before the proposed action (or 60 days for longer furloughs).
Your notice should tell you the reason for the proposed furlough; tell you exactly how the furlough will work (consecutive days or intermittent, for example); tell you how you may respond to the notice; tell you how to appeal the furlough; tell you about your right to be represented by an attorney; and, if you are being furloughed while others in a comparable position are not, tell you the reasons you were selected.
What are my options when I get a furlough notice?
Your furlough letter is notice of a proposed action. Before the furlough is locked in, you have the right to be heard. You may respond within seven days of receiving the notice, orally and in writing; the notice will tell you where to respond. In your response, which can be prepared by an attorney, you may ask to review any materials that your agency used in its decision to furlough you. You can state the reasons you believe the furlough is improper, and include any affidavits or other documentation. Your agency should respond with a final decision only after “full consideration” of your reply.
These procedures apply to employees who are covered by 5 CFR part 752, the most common situation; different procedures may apply to other federal employees, including employees on probation or temporary appointments. For full details, see the Guide for Administrative Furloughs, published by the U.S. Office of Personnel Management (OPM).
How do I appeal my furlough?
In most cases you may appeal to the Merit Systems Protection Board (MSPB). Your furlough notice will tell you how to do this. Your appeal can be prepared by an attorney. It must be filed within 30 days of your first furlough day, or within 30 days of your receipt of a finalized furlough decision (not the initial notice), whichever is later.
The Employment Law Group® law firm has attorneys with substantial experience representing federal employees before the MSPB. For further information on such appeals, contact us or see our federal employee representation page.
If I appeal a furlough to the MSPB, does that stop the furlough from happening?
Generally, no. The appeal would proceed on a parallel track.
What must I prove in order to win my appeal to the MSPB?
You must prove that you were furloughed for improper reasons. Furloughs under the sequester will generally be justified by a lack of funds or “the efficiency of the service”; you would need to prove that such reasons were just a pretext for discrimination, retaliation, or a similarly illegal motivation.
If I win my appeal to the MSPB, what might I receive?
Each case is different, but employees might win back pay, attorney fees, and perhaps other damages.
I am represented by a union. Can I file a grievance about my furlough?
It depends on the specific agreements between your agency and your union. Filing a grievance may disallow you from appealing to the MSPB. Check with an attorney and your union representative before deciding which path to pursue.
Where can I learn more about furlough procedures, and my rights as a federal employee?
If you believe you were treated unfairly during the furlough process, please contact us. For more general information on furloughs during sequestration, a good place to start is the Guide for Administrative Furloughs, published by the OPM. For broader questions about federal employee rights, see our federal employee representation page.