OMB issues guidance on Reduction in Force layoffs due to partial shutdown
A new statement from the Office of Management and Budget provides cold comfort for federal bureaucrats worried that furloughs during the partial shutdown could become permanent layoffs, as long as Democrats refuse to give in and fund the border barrier.
There will be no immediate layoffs (what the federal government calls reductions in force – or RIFs) if and when the current partial shutdown passes the 30-day mark in four more days. As I explained yesterday in "Trump's shutdown trap?," federal law requires RIFs when federal employees are furloughed more than 30 days.
But after the matter was raised and widely discussed, the OMB issued a statement that indicates that it would require an actual reorganization plan that would make furloughed positions permanently identified as unnecessary, in order for the furloughs to be RIFed. Nicole Ogrysko writes in the Federal News Network:
Agencies won't need to consider targeted layoffs, otherwise known as reductions-in-force (RIFs), if the current partial government shutdown continues for another few days.
While federal statute typically instructs agencies to RIF targeted groups of employees who have been placed on furlough status for 30 days or more, the regulations don't apply to emergency furlough situations, the Office of Management and Budget confirmed Tuesday. ...
There are two kinds of furloughs. "Administrative furloughs" are planned events by an agency "designed to absorb reductions necessitated by downsizing, reduced funding, lack of work or any budget situation other than a lapse in appropriations," according to the Office of Personnel Management.
"Shutdown furloughs," also called "emergency furloughs," occur during lapses in appropriations.
OPM's 2015 guidance on shutdown furloughs also clarifies the matter.
"Reductions in force furlough regulations and SES competitive furlough requirements are not applicable to emergency shutdown furloughs because the ultimate duration of an emergency shutdown furlough is unknown at the outset and is dependent entirely on congressional action, rather than agency action," OPM guidance reads. "The RIF furlough regulations and SES competitive furlough requirements, on the other hand, contemplate planned, foreseeable, money-saving furloughs that, at the outset, are planned to exceed 30 days."
This emphatically does not rule out the shutdown trap hypothesis that I presented. It will take some time for reorganization plans to be prepared, but once they are revealed after the 30-day deadline is reached, the "shutdown furloughs" become "administrative furloughs," and the RIF layoffs are possible.
As the anonymous senior Trump administration official whom I quoted yesterday noted, in the absence of bureaucrats with time on their hands and no inclination to help the Trump agenda, a lot is getting accomplished. As that process continues, after the 30-day mark is reached, it will be possible to create a downsizing plan, identifying units that could easily get by with a fraction of their current staff, or even be reorganized out of existence.
The head of the OMB, Mick Mulvaney, currently does not have a lot of spare time, serving as head of the Consumer Financial Protection Bureau and as interim White House Chief of Staff (a 24/7 job in its own right). But if he is on board (and why wouldn't he be?), he could well designate a team to prepare quick plans for downsizing, now that the various agencies have seen how little they need so many of the furloughed bureaucrats. That would make the furloughs qualify for RIFs.
Of course, there would be a dispute on when the clock starts ticking on the 30 days – with the original "shutdown furlough" or from the date of the hypothetical downsizing plan I mention. If the latter – a delayed start of the clock ticking – then the pressure on the Democrats to cave in and end the shutdown would amp up. Imagine if Schumer and Pelosi started hearing from federal bureaucrats waiting to be RIFed if another 30 days go by. Would they be willing to say to them that it's more important to have no border barriers than for their jobs to be preserved? They would have a time bomb of layoffs of government employees, a huge Democrat constituency, affecting many individual members of the House with large numbers of federal employee constituents. I can imagine quite a few House Democrats bolting from Pelosi if she persists in the shutdown, refusing to talk or compromise.
If this plan is followed and a downsizing proposal is officially revealed, Trump either gets an end to the shutdown or gets to downsize the federal bureaucracy.