“We clearly believe some of the furloughs, no question, are illegal,” he said. “Agencies within the Defense Department have said we do not need to furlough, we have the money.”
Given that federal agencies gave employees adequate notice of the furloughs — 30 days — it’s unlikely that the merit board will find that their due process was violated, one federal employment lawyer said.
“Considering how many employees were threatened with furloughs, it’s a very small number of appeals,” said Joseph Kaplan, who does not represent any of the employees with cases before the merit board.
“Unless an employee can point to a situation where he or she is somehow being singled out for unfavorable treatment, an agency is not going to be second-guessed by the merit board.”
Federal employees have seven days to appeal a notice that they are going to be furloughed, although that appeal must go to the agency requiring the furlough. An employee not satisfied with the agency’s response has 30 days from the date of the first furlough day to appeal to the merit board.
Board officials said it’s unclear what criteria judges will use in considering appeals or whether, for example, they will take into account whether the agency had the money to cut its budget without furloughing but did so anyway.
“It’s going to depend on what’s alleged in each case,” said Bryan Polisuk, the merit board’s general counsel. “There’s not a ton of precedent on this issue.”
Although most other federal departments have managed to avoid furloughs, Secretary of Defense Chuck Hagel announced May 14 that the Pentagon has concluded that it cannot make the necessary cuts without them.
Furloughed Defense workers will miss on average one day a week for close to three months through the end of the fiscal year, representing a 20 percent cut in pay over that period.
Employees may request a specific furlough schedule, said Cmdr. Leslie Hull-Ryde, a Defense spokeswoman, who added that the department’s approach has generally been one day a week and two days per pay period.
The distribution of furlough notices, a massive undertaking that began Tuesday, is set to be completed by Wednesday.
“To the greatest extent possible, employees will be notified of a furlough in writing, hand-delivered to the employee by the immediate supervisor,” Hull-Ryde said. She added that in some cases, notifications will be sent via certified mailed to the employee’s home. “E-mail is also an option, if necessary,” she said.
The 20 percent cut in pay over the 11-week period will cause undue hardship for many defense workers, according to union representatives.
The Pentagon estimates the furloughs will save $1.8 billion. The 11 days are down from the 14 that the Pentagon had warned would be needed, and half of the 22 days originally forecast.
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