By Deborah Hopkins, April 18, 2018
Reassignment is a management tool that often goes under-utilized in the federal civil service. Some people think it only applies to reasonable accommodation cases; others believe that it’s a way to punish bad employees. Bill and I had quite a lively discussion during MSPB Law Week last month (you can join us for the next round, in Denver June 4-8), so I thought I’d use this newsletter as a way to share some questions and answers that came up in class.
Question: What exactly is reassignment?
Answer: Reassignment is a permanent transfer of an employee to another job in the agency, anywhere in the world, to a job at the same grade level. If you like fancy legal words, here’s the language about reassignment out of 5 CFR 210.102(b)(12): “A change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion.” This may include changes in pay based on locality, and it may include a different job series.
Question: When can a supervisor unilaterally and legally reassign an employee?
Answer: Basically, whenever she wants to – if she has a reason to.
Federal supervisors have authority under 5 USC 7106 to run the government and determine the day-to-day operations of the federal agencies in which they work. This includes hiring people, assigning work, directing employees how and where to work, and reassigning employees. 5 CFR 335.102.
If a supervisor has a legitimate, business-based reason for reassignment, then the supervisor can order the employee, with appropriate notice, to another job in the agency, anywhere in the world. Note: When an agency reassigns an employee outside her commuting area, that employee will generally get reimbursed for moving expenses.
One of the very first cases after the MSPB was founded tells us that the only limitation on a supervisor’s decision to reassign is that the reason is “bona fide and based upon legitimate management considerations in the interest of the service.” Ketterer v. USDA, 2 MSPB 459 (1980). Even better, once it is established that the reassignment was a proper business decision, the MSPB will not review the underlying reasons why management exercised its discretion in directing the reassignment. Id.
Reassignment is not limited to use only after an employee fails a PIP. It can be directed at any time, for any bona fide reason.
Question: So, a supervisor can reassign a really bad employee, or a really good employee?
Answer: You betcha. You can reassign your best employee to another office because you need the best employee you’ve got in that position, or you can reassign your worst employee to another job because she isn’t cutting it in her current place and you think she may do better elsewhere.
Either way, you have a bona fide reason. Pretty cool, huh?
Question: Is reassignment an entitlement?
Answer: No, unless your union contract says so (this is rare), or unless the reassignment is being used as a disability accommodation.
Question: What if the employee doesn’t want to be reassigned?
Answer: Too bad. He has to go, if you tell him to. In fact, removal is warranted for an employee who refuses to accept a directed reassignment. Foundational MSPB case law backs up the stance that removal is not “unreasonably harsh” for a refusal to go where he is ordered. Nalbandian v. DOI, 25 MSPR 691 (1985).
Here’s a bonus, too: to justify a removal, you don’t have to do Douglas factors if you charge Failure to Accept a Directed Reassignment. Instead, you just need to apply the two-prong test from Ketterer, above: (1) Show your bona fide reason for the management-directed reassignment, and (2) Show that removal will promote the efficiency of the service. Your burden in this disciplinary action is a preponderance of the evidence (unless you’re in the VA, in which case it’s a lower burden of substantial evidence).
Question: Can union contracts limit reassignment authority?
Answer: A collective bargaining agreement cannot prohibit management-directed reassignment, but it may dictate how the reassignment is implemented; for example, it may require the agency give the employee 120 days’ notice.
Question: Can an employee challenge a reassignment?
Answer: Yes, he can. Here are the various routes to challenge a management-directed reassignment:
- Administrative grievance procedure
- Negotiated grievance procedure, if he’s in the union
- EEO complaint, if he thinks the reassignment was motivated by his protected class
- Office of Special Counsel, if he thinks the reassignment was motivated by the fact that he’s a whistleblower
- MSPB Individual Right of Action appeal, if OSC declines to investigate
Question: What about reassignment as reasonable accommodation?
Answer: Due to space restrictions, let’s tackle that in another article. See elsewhere in this newsletter for the article Reassignment as the Accommodation of Last Resort. Hopkins@FELTG.com