While federal agencies have broad authority to furlough their employees out of necessity, there are protections in place for federal workers. Subject to certain exceptions, these include both procedural protections that require advance notice and an opportunity to be heard and substantive protections that restrict the reasons why federal agencies can choose specific employees to furlough.
With this in mind, if you have been furloughed and have reason to believe that your furlough may be wrongful, it will be worth talking to a federal employment lawyer about your legal rights. Here is a brief overview of the protections that apply and how a federal employment lawyer may be able to help you:
Procedural Requirements for Furloughs of Federal Employees
Similar to other employment-related actions, furloughs within the federal government are subject to procedural requirements under federal law. The specific procedural requirements that apply depend on the nature and duration of the furlough as well as an individual employee’s current employment status. For example, as the National Labor Relations Board (NLRB) explains:
“For most employees, there are two basic categories of furloughs, each involving different procedures. A furlough of 30 calendar days or less is covered under adverse action procedures. A furlough of more than 30 calendar days is covered under reduction in force procedures. Furloughs for Senior Executive Service members are covered under 5 CFR Part 359 . . . .”
If your federal agency did not follow the requisite procedures prior to initiating your furlough, you may have grounds to take legal action. In this scenario, you will want to gather all relevant documentation—including any communications you received prior to your furlough and any communications you sent before ceasing work. To accurately assess your legal options, a federal employment lawyer will need to have a comprehensive understanding of the circumstances at hand, so it is important that you are prepared to provide your lawyer with all of the information he or she needs to determine if your agency violated your legal rights as a federal employee.
Substantive Restrictions on the Selection of Federal Employees for Furlough
Regardless of whether a federal agency follows the requisite procedures for initiating a furlough, it cannot make furlough-related decisions based on impermissible factors. Among other things, this means that your agency cannot single you out for furlough based on:
- Any protected characteristic (i.e., your age (if you are 40 or older), ethnicity, race, religion, sex or sexual orientation)
- Your decision to report waste, fraud, abuse, or any violation of federal law
- Your political affiliation or your refusal to support a particular political position
Making a furlough decision based on any of these factors is a prohibited personnel practice and a clear violation of federal law. Just as federal agencies cannot discipline, suspend, or terminate employees for unlawful reasons, they cannot furlough employees for unlawful reasons, either.
As a result, if you have reason to believe that you were selected for furlough for an unlawful reason, you should consult with a federal employment lawyer about your legal rights in this scenario as well. Here too, it will be important to provide your lawyer with as much documentation as possible, and if you don’t have documentary proof that you are a victim of discrimination or another prohibited personnel practice, you will want to write down as many details as possible.
How a Federal Employment Lawyer May Be Able to Help You
Let’s say that you were wrongfully furloughed. If this is the case, what can a federal employment lawyer do to help? While the answer to this question depends on your individual circumstances, generally speaking, some of the ways a federal employment lawyer may be able to help in this situation include:
- Explaining Your Legal Rights – Understanding your legal rights as a federal employee can be complicated. While this is true in general, it is especially true when facing a furlough related to a government shutdown. An experienced lawyer will be able to explain your legal rights based on your current position in the federal government, your federal employment history, the procedures followed prior to your furlough, the reason for your furlough, and other pertinent factors.
- Explaining Your Legal Options – After assessing your legal rights, your lawyer will be able to explain the legal options you have available. Depending on the factors we just listed, these options may include filing an appeal with the Merit Systems Protection Board (MSPB), filing a complaint with the Office of Special Counsel (OSC), filing a charge with the U.S. Equal Employment Opportunity Commission (EEOC), and seeking relief in federal court (among others).
- Helping You Decide How to Proceed – Once you know your options, it will be important to make an informed decision about how you want to proceed. Your lawyer will provide advice that is custom-tailored to your specific circumstances so that you can feel confident that you are making the right decision under the circumstances at hand.
- Challenging Your Furlough Through the Appropriate Channels – If you decide to challenge your furlough, your lawyer can fight to assert your legal rights through the appropriate channels. In some cases, settling is also an option, and your lawyer can help you make an informed decision about settlement if this is an option that makes sense for you to consider.
- Taking Further Legal Action if Necessary – If settling is not a viable option and you are not able to secure a satisfactory resolution through the initial appeals process, your lawyer can take all necessary and appropriate further legal action on your behalf. Here too, your lawyer will help you make informed decisions about how to proceed with your long-term best interests in mind.
Schedule a Free Consultation with a Federal Employment Lawyer at Bell Law Group
Do you have questions about your legal rights after being furloughed by a federal agency? If so, we invite you to get in touch. To schedule a free consultation with a federal employment lawyer at Bell Law Group, please call 516-280-3008 or contact us online today.
