Do You Need a Furlough Lawyer?

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.