May 19, 2008

 

Can You Challenge Your Layoff?

LLNL’s first layoffs of career indefinite employees in 35 years will occur this Thursday and Friday.  Many who experience it will wonder whether they can challenge the decision and reverse the outcome.  The answer comes down to whether the layoff was improper, or merely unfair.  SPSE-UPTE contends that deliberate decisions by LLNS to grow the management structure at LLNL in the face of certain budget cuts have traded the jobs of longtime Lab employees for yet more and more expensive managers, and consequently the layoffs are manifestly unfair.  However, in the eyes of the law, your ability to challenge a layoff does not hinge on fairness, but rather how well they followed the rules.

The layoffs at the Lab are governed by federal law, state law, and LLNS policy.  Federal law sets the general guidance for workforce restructuring at the NNSA labs, and specifies measures that must be taken to minimize the need for involuntary separations, including offering a voluntary self-select program, i.e., the VSSOP.  State law sets the notification requirements along with its federal counterpart.  LLNS policy specifies how a layoff is to be structured and carried out.  In particular, it is LLNS policy (carried over from UC) that the Director specifies the layoff units, and that for all but 200-series employees, layoffs are to be done in order of inverse seniority within each layoff unit.  Some Directorates have at least revealed the number of layoff units they have divided themselves into.  Others remain quiet.  As we explained in the last bulletin, a large number of layoff units within an organization limits the role of seniority in determining who will be laid off.  Indeed, for 200-series employees, it is the skills, knowledge, and abilities (as defined by management) of individual employees rather than seniority that will govern the order of layoffs.

So, if you are unlucky enough to get laid off this week, can you challenge it?

Maybe.  If you have reason to believe that your selection for layoff was not in compliance with the law or with LLNS policy there may be grounds for a challenge. For instance, if you know that people in your layoff unit with less seniority than you (and who were not excluded) were retained while you were let go, that could be a possible violation of policy.  You can challenge it by filing a grievance with Staff Relations within 30 days of your notification, and you can do so from home.  If you foresee some likelihood that you will file a grievance, we suggest you familiarize yourself with LLNL’s Complaint Resolution and Separations policies.  Your complaint can go to binding arbitration, which means that both sides in the dispute agree to accept the judgment of an independent arbitrator from outside the Laboratory.  Members of SPSE-UPTE may ask for help in pursuing grievances.

In practice, though, it will be very difficult to prevail in an arbitration challenging the layoff, because the policy is written in such a way as to give Lab management wide discretion in how they define the layoff units, and there are loopholes in policy that allow them to waive seniority, too, in individual cases.  They cannot, however, discriminate based on age or other bias.  Having a strong case will depend critically on having good data about your layoff unit.  The best time to get that data is at the time you get your notice.  We know that it will be a particularly traumatic and stressful time, but we strongly advise all employees who get a layoff notice to ask your manager the following questions: What layoff unit am I in?  How many people are in this unit?  How many are excluded?  What is the cap (maximum number to be laid off from the unit)?  Write down the answers.  Call the SPSE-UPTE office at 925-449-4846, and someone will call you back to ask about this and other pertinent information, whether or not you are a member.

 

Collective data from all employees who get layoff notices will be useful in deciding whether or not your layoff violates federal or state anti-discrimination laws.  In particular, it is illegal to layoff a disproportionate number of legally protected minorities (Hispanics, Asian Americans) or women, or older employees.  “Disproportionate” here means fractions that are significantly greater than the fraction of that group in the total workforce.  The first step in knowing if there are grounds to challenge the layoff is determining who was laid off.  So, we urge that, if you get a layoff notice, you call us, even if it is days or weeks later, and even if you do not have answers to our questions about your layoff unit.  Demographic information alone is of great value in mounting a challenge.

 

By the same token, we invite bystanders who witness a layoff to give us their take on the event, particularly any aspects that seem unusual or “off” to you.  You need not give your name.  Standing by your colleagues at this moment is not a matter of politics, but of survival.

 

Those familiar with the workings of Bechtel and its subsidiaries expect management to begin replacing laid off LLNS employees with contract employees shortly after the layoff.  Such management actions would go against DOE policy discouraging “backfilling” of positions with outside contractors.  While transferring in LLNS employees in the same job class is consistent with LLNS and DOE policies, backfilling with contractors within a year of a layoff is not.  If you hear that your position was backfilled (or if you observe backfilling of a former colleague’s position) contact us promptly.

 

[1] Section 3161 of  National Defense Authorization Act of 1993

[2] The Worker Adjustment and Retraining Notification Act (WARN)

[3][ LLNL Personnel Policies and Procedures Manual sections H and K respectively. They are available on the internal website at https://pppm-int.llnl.gov/h_grievances.htm, and https://pppm-int.llnl.gov/k_separations.htm#K_top

 

 

If you are not a member, you may request an SPSE-UPTE application from our office by e-mailing us at spse@spse.org or calling us at (925) 449-4846.  We won’t collect our dues unless you survive the layoff.  At the same time, you can also request the detailed guidance and seniority list described in an earlier bulletin.  If you provide us with a current e-mail address, we can keep you apprised of post layoff developments and job opportunities.

 

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Society of Professionals, Scientists & Engineers
Local 11 University Professional and Technical Employees, CWA Local 9119
P.O. Box 1066, Livermore, CA 94551
(925) 449-4846 voice
(925) 449-4851 fax
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