Brent Adams Firm To Challenge RIF Law
Posted by
Michael ByrneJanuary 11, 2008 2:57 PMFor many years, career state employees separated from employment under a Reduction-In-Force, or "RIF," could bring an action in the Office of Administrative Hearings appealing such separations. These RIF appeal rights were a necessary protection for state employees. In the past, supervisors at some agencies allegedly used the RIF process, intended to rid the public payroll of redundant personnel, as a method of "getting rid of" employees who'd done nothing to deserve a disciplinary dismissal.
Unfortunately, in 2003 the North Carolina Court of Appeals held in Feinstein v. UNC, 161 N.C. App. 700, 590 S.E.2d 401 (2003), review denied, 358 N.C. 380, 598 S.E.2d 380 (2004) that state employees could not appeal RIF decisions on the basis that they were (a) made without "just cause" (the same basis as a disciplinary dismissal appeal), or (b) based on procedural defects (such as failing to follow the RIF process according to state personnel regulations).
The Feinstein ruling removed a long-standing appeal right essential to state employee protection. There is, of course, nothing wrong with RIFs in principle; agencies must have the ability to rid themselves of truly redundant employees. But what of a circumstance where, say, a supervisor simply disliked or failed to get along with an employee? A purported "RIF" is a golden opportunity for such a supervisor to dismiss that employee even though that employee has done nothing wrong. In short, the RIF process by its very nature is open to abuse. And after Feinstein, state employees were powerless to fight unfair RIF decisions except when based on discrimination or opposition to discrimination.
On behalf of a client RIFd from the North Carolina Department of Public Instruction, the Brent Adams firm will, in the coming months, make an all-out effort to get the Feinstein decision overruled. Simply put, the two governing statutes in the North Carolina State Personnel Act (General Statutes Chapter 126), which sets out the appeals rights of career state employees, clearly provide for appeals of RIF decisions to the Office of Administrative Hearings (OAH) and beyond.
G.S. 126-34.1 provides for an appeal to OAH for an "alleged violation" of G.S. 126-35, the "just cause" statute:
(a) A State employee or former State employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes only as to the following personnel actions or issues:
(1) Dismissal, demotion, or suspension without pay based upon an alleged violation of G.S. 126-35, if the employee is a career State employee.
G.S. 126-35, in turn, provides:
(a) No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.
While on its face a RIF is not "disciplinary reason" for dischage from employment, G.S. 126-35 also adds the following critical element:
(c) For the purposes of contested case hearings under Chapter 150B, an involuntary separation (such as a separation due to a reduction in force) shall be treated in the same fashion as if it were a disciplinary action.
A "contested case hearing," of course, is a hearing in OAH. Thus, it is clearly an "alleged violation" of G.S. 126-35 to allege an "involuntary separation" due to a RIF, as under the very terms of the statute in question a RIF and a disciplinary dismissal are the same thing - both triggering employee appeal rights under G.S. 126-34.1.
What all this adds up to, the Brent Adams firm will argue, is that the Court of Appeals was wrong when it decided Feinstein five years ago. Accordingly, the firm is bringing this RIF case through the lower courts in an effort to convince the Court of Appeals, and possibly the Supreme Court, that the case should be overruled.
If this effort succeeds, state employees will regain a critical protection against arbitrary and capricious dismissals couched as "RIF" decisions. The case will be argued in Wake County Superior Court in early March. We'll keep you posted.