Onerous federal regulations could stymie the Trump administration’s efforts to lay off the most entrenched and highest-paid government workers, and could perversely result in terminated DEI specialists being given preference for open jobs across the government, a Daily Wire review found.
“Reductions in Force (RIF),” as government layoffs are known, are governed by complicated regulations that give extraordinary rights to people who have worked for the government the longest — even letting them “bump,” or steal the job of, someone below them. They often keep the same pay grade after nabbing a subordinate’s job, resulting in overpaying people to do menial jobs, while getting rid of the freshest and most affordable talent.
“A RIF is going to leave the oldest, most entrenched bureaucrats in place, and get rid of the youngest, lowest-paid employees, and even they are going to have tickets to the front of the line” for any future job opening, a longtime federal human resources official told The Daily Wire.
Those who are “bumped” can, in turn, steal the job of someone with even less tenure, resulting in a chaotic and time-consuming cascade. The losers at the end of this bureaucratic game of musical chairs are paid severance. Then they are put on a list that grants them preference for any job the government subsequently hires for at any agency, giving them the opportunity to keep the severance and also be re-hired, according to the Office of Personnel Management’s Workforce Reshaping Operations Handbook.
Although the Trump administration will likely target the most useless or ideological positions for layoffs, when it comes time to replace workers at more necessary jobs in the course of normal turnover, agencies may be forced to re-hire the very people originally attracted to such low-value jobs.
This could be the latest roadblock in the Trump administration’s push to restructure the federal workforce. This week alone, the Department of Education laid off half its workforce; a judge overturned the terminations of 24,000 probationary employees from various government agencies, even though such new employees are supposed to be the easiest to fire; and the House of Representatives passed a funding bill that could be less than helpful in making layoffs stick.
The OPM handbook says agencies must establish a Career Transition Assistance Program (CTAP) that gives “special selection priority to well-qualified surplus and/or displaced agency employees who apply for agency vacancies…this agency selection priority applies before the agency can select any other candidate from either within or outside the agency.” They also must create an Interagency Career Transition Assistance Plan (ICTAP) which does the same thing but for any federal job, even at other agencies.
Federal regulations make clear that managers must hire laid-off employees for open positions even though they “may not equate to the highly or best qualified.” They must merely meet the minimum qualifications on paper, for example, having a college degree.
“Let’s say they were laid off from a DEI role at HUD but apply for a management analyst position at USDA. If a human resources specialist says they meet the minimum qualifications, they get that job before the hiring manager can even interview other people,” the human resources official said.
The official spoke on condition of anonymity because he is currently employed in a non-political federal job. He supports widespread government reductions, but cautioned that they could backfire if they are not done strategically with the labyrinth of rules, laws, and union provisions in mind.
“It’s very important to keep these people out of government: they had a crazy ideological agenda which none of us as career civil servants should have,” he said of employees hired into DEI and other activism roles. But people coming from the private sector might underestimate the number of landmines, planted by decades of civil service laws, rules, and union contracts, that could result in their “just slipping into other roles and continuing to peddle their ideas” — potentially in positions with more influence.
How federal layoffs work
A RIF targets positions, not individuals. Government managers must specify a unit of the office within which the RIF will occur, called a “competitive area.” If there are positions in the unit that are not eliminated, people whose positions were eliminated can steal those jobs from colleagues with lower status rankings.
Under the law, that ranking comes from “1) tenure of employment 2) military preference… 3) length of service; and 4) efficiency or performance ratings.” Under OPM regulations, tenure is the most important. Performance ratings can only be used as a tie-breaker.
When agencies have an entire office dedicated to DEI, “bumping” can be avoided. Every position in the competitive unit can be eliminated. The problem is that many agencies have one or two DEI positions scattered among various offices. That means the DEI hires could steal the position of someone else in the unit, such as a general human resources position.
If the government simply hires no one, the “ICTAP” priority re-hiring problem would be moot, too. It’s unlikely that no hiring will occur, but extensive layoffs going well beyond DEI offices could prevent the worst employees from being re-hired, since hiring managers will at least have a broader pool of recycled employees to choose from.
On February 26, OPM and the Office of Management and Budget told agencies that layoffs should be done in accordance with the OPM handbook, but on an expedited timetable. Agencies were instructed to identify the “competitive areas” subject to RIF by March 13.
Then they should spend a month developing the totem-pole rankings used in bumping. That’s a complicated task involving the review of every employee’s personnel file, though there is software called AutoRIF that can help.
Around April 13, agencies should provide notice of layoffs. Typically, 60 days notice is required, but OPM can shorten it to 30 days. That would result in positions being eliminated around May 13 — or at least that’s when the “bumping” would begin.
That’s an optimistic timetable. Layoffs can be appealed to the Merit Systems Protection Board, which has already blocked numerous actions by the Trump administration, or other offices, such as the Federal Labor Relations Authority.
MSPB can rule that a layoff was unnecessary or inappropriate. The best way to counter that is for Congress to slash agencies’ funding: it is hard to argue that a lack of money isn’t a good reason to end a position. However, the continuing resolution passed by the House might not cut deeply enough to provide that justification.
Although layoff protections are sometimes characterized as stemming from laws in the 1940s and 1970s – changeable only by Congress – many only come from regulations. The Trump administration’s OPM could change those regulations, though not quickly enough for the timeline spelled out in the OPM/OMB memo.
OMB did not return a request for comment, nor did the Department of Education, which laid off half its workforce this week.
Buyouts and severance
The complexities around RIFs explain why the Trump administration sought a different path in the form of “Fork in the Road” buyouts, where employees voluntarily resigned in exchange for eight months of pay.
The number of employees who took the buyout was underwhelming: 75,000. That’s less than half the number of employees who quit or retire from the federal government in any typical year, according to OPM data, meaning the buyout may have just given eight months of free pay to people who already planned to retire or quit.
Fork in the Road also spared teleworkers from having to come back to the physical office. But in many cases, employees laid off against their will could get similar pay, according to OPM severance calculations. Employees get one week of pay for every year of service up to the first 10 and two weeks per year after that. But the severance can rise significantly for employees close to retirement age, adding 7.5% for every year older than the age of 40. A 45-year-old employee with 20 years of service making $78,000 would get a $71,000 severance, or about 11 months of pay.
After the Fork in the Road deadline of February 12, OMB and OPM encouraged agencies to offer Voluntary Separation Incentive Payment (VCIP) buyouts, but those are $25,000, comparing favorably to RIF severance only for junior employees.
Another option is firing employees for misconduct or poor performance, depriving them of RIF protections and rehiring eligibility. Typically only 11,000 or 12,000 employees are fired for disciplinary or performance reasons per year, according to OPM data. That could be increased significantly by managers being more aggressive. However, policies could get in the way there too: Employees put on a performance improvement plan have to be retained if there is evidence that they showed any improvement at all, for example.
The administration could attempt strategies such as firing (rather than laying off) DEI employees for violating civil rights laws, though this would be labor-intensive and likely result in a long period of appeals and lawsuits. The worst result could be a years-long process in which fired or laid-off employees are eventually reinstated with backpay, giving them hundreds of thousands of dollars in free money.
“The timeline is very difficult for a president with four years when these review boards take years to rule on these things,” the federal human resources officer said.
