Lawmakers gave federal employees a three-month reprieve from governmentwide layoffs, as part of back-and-forth budget negotiations following the longest shutdown last fall.
But those protections are set to expire on Friday.
When Congress ended the longest government shutdown last fall, it passed a continuing resolution with a provision barring layoffs through Jan. 30.
Those layoff protections were extended into mid-February, when lawmakers passed a second stopgap spending bill that kept the Department of Homeland Security funded through Feb. 13.
Congress left town Thursday after failing to reach a deal to fund DHS, making it almost certain that the department will be impacted by a partial government shutdown at the end of Friday.
Language in the stopgap spending bills prevented several agencies from proceeding with reductions in force targeting about 4,000 federal employees.
But with the continuing resolution set to expire, agencies will likely be free to proceed with mass layoffs. The specifics of those next steps will be decided by a federal court in San Francisco.
Judge Susan Illston is scheduled to hold a hearing on Friday afternoon in a lawsuit that blocked the Trump administration from proceeding with these layoffs during last year’s 43-day government shutdown.
Michael Fallings, managing partner at Tully Rinckey PLLC, said the Trump administration is likely to pursue more layoffs if the court allows them to proceed.
“This administration still has a goal to reduce the size of the federal workforce. I would believe, based on past statements and prior actions, that they may consider attempting to conduct further RIFs to reduce the size of the workforce,” Fallings said.
Most agencies rescinded the RIF notices they sent during last year’s shutdown. The State Department, however, did not rescind RIF notices it sent to about 250 Foreign Service employees last summer.
Bloomberg reported that in a hearing last month, Illston ruled that the State Department didn’t need to rescind its RIF notices, after she determined that those layoffs fell outside the layoff protections Congress approved.
“This is a very close call, and I’ve gone back and forth on it since the issue was raised,” Illston said in a Jan. 9 hearing, Bloomberg reported. “I don’t think my order, or, frankly, the CR, calls for their rescission.”
Bloomberg reported that during the hearing, Illston said she “cannot understand why the government is fighting about this,” since the administration could issue new RIF notices and remove employees months later, rather than fire them immediately.
Until the court’s ruling, Fallings said employees who previously received RIF notices are left waiting on the status of their jobs.
“Having an agency just kind of wait it out is somewhat concerning, just because you’re leaving your workforce … in question, as far as what work they have to take on. And then it could even impact recruiting as well, because you’re not knowing how many more employees you’re going to need,” he said.
“Having an agency just kind of wait it out is somewhat concerning, just because you’re leaving your workforce … in question, as far as what work they have to take on. And then it could even impact recruiting as well, because you’re not knowing how many more employees you’re going to need.”
Court filings show the State Department in late December rescinded RIF notices for civil service employees who were not yet officially separated from the department, but did not rescind RIF notices for 250 Foreign Service employees.
Justice Department attorneys representing the Trump administration told plaintiffs in early January that the State Department reversed its position and would not rescind RIF notices sent to Foreign Service employees.
“The Department of State has not rescinded the underlying RIF notices from July as the agency does not believe that the court’s preliminary injunction order requires anything further,” DOJ trial attorney Pierce Anon told plaintiffs.
If the court allows agencies to proceed with layoffs, agencies that rescinded layoff notices would have to start the RIF process all over again.
“For any matters that have been pending, and the courts have paused them, they don’t need to restart the clock, if a court then finds that these RIFs are proper. They would continue, and then the employees would be able to appeal those. But for any new RIFs, they do need to follow the proper procedures,” Fallings said.
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