But the union representing many defense employees said the furloughs are not a done deal, and it is urging workers to appeal the action to the Merit Systems Protection Board, an independent review body that protects federal workers from prohibited personnel practices.
“We are highly encouraging every employee to exercise that right,” said J. David Cox, national president of the American Federation of Government Employees, which represents 270,000 defense workers. “They lose absolutely nothing by trying.”
Union officials said they hope a large number of appeals might prompt Congress and the Defense Department to reverse course.
“There is an expense to doing furloughs that I’m not sure Congress has calculated,” said Cox, who added that locals are holding workshops to instruct employees on how to appeal their cases. “There may be some members who will realize that this is penny-wise and pound-foolish.”
As of Wednesday, the MSPB said it had received 127 appeals from furloughed or soon-to-be furloughed employees, all from agencies other than Defense.
All but 18 were from employees at the Federal Aviation Administration, which began furloughs in late April only to have them eliminated six days later when Congress gave the agency authority to shift money from other areas of the Department of Transportation. The unpaid days were eliminated before everyone had taken a furlough.
FAA spokeswoman Laura Brown declined to comment on the appeals because the cases are pending.
Employees at the Internal Revenue Service, the Department of Housing and Urban Development, the Interior Department, the Department of Homeland Security and the Equal Opportunity Employment Commission filed the rest of the appeals, officials said. Not all of those agencies have furloughed, but some employees may have filed an appeal in advance.
Merit board Executive Director Jim Eisenmann declined to be specific about what the employees are claiming in their appeals. “This needs to be a process that’s protected,” he said.
This is the first time the merit board will consider furloughs as an “adverse” personnel action. After the government shutdowns of the 1990s, Congress voted quickly to reinstate the lost pay of more than a million federal workers who were sent home.
The process is likely to be lengthy. It took the merit board 93 days on average last year to reach decisions in challenges to other personnel actions, such as firings, demotions and suspensions. An employee can request a hearing before an administrative law judge, or the judge can decide the case based on paperwork the employee and agency submit.
The losing party can appeal the case to the three-member merit board, which takes 240 days on average to issue a decision.
Technically the furlough is not considered an “adverse” personnel action until the employee takes an unpaid day off.
“Clearly a furlough is an adverse action,” said Cox, who noted that the Navy has said it can make the mandated cuts without furloughs.
“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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