Government Furlough

[GuestTk]

Do you guys think that a government furlough brought on by sequestration would be a breach of contract by SMART? I am in Phase II, and to be honest we are not getting paid enough as it is, a furlough would be devestating. I am going to talk to a lawyer in the next couple weeks to see if there is anything along those lines but I am wondering if anyone else has anything to add?

[Guest]

If I were a judge, I would likely say that furloughed full-time employment is still full-time employment. Otherwise, I'd have to call it part-time employment, and that's a bit of a stretch considering the benefits and job duties are still paid as though you are a full-time employee.

Good luck. I'd talk to a couple lawyers. You may get one who wants your money and is willing to help you convince yourself that SMART is in breach of contract because that's an easy sell.

[fish_]

if you have money for a lawyer, then you shouldn't be complaining about lack of funds. furloughs happen very infrequently in federal gov't. job stability is one of the main reasons to get a gov't job in the first place. under the budget cuts, contractor work will be cut, and temporary and temp gov't workers will be let go. then furloughs, but not firings.

[Guest18]

Talking to a lawyer costs a few hundred bucks. Taking a 20% pay cut on top of subindustry pay is way more than that... That being said, SMART promised us nothing on the pay end and we are still considered full time so I don't see what a lawyer could do. The best bet is hoping they never bill us if you leave. I know if I get a 20% pay cut it will make paying my mortgage really hard and you can forget about saving for anything like retirement in the short term. You can cut spending, but with the reoccuring bills already set, I couldn't sustain a long term pay cut that drastic.

[Guest18]

Fish_ , you also make it sound easy. I doubt it will happen but the entire AFMC was told that next payperiod they start automatically if nothing is fixed. What you are talking about is if they actually start firing people. If that occurs, then that process is followed. However, they can and plan to start one day off a week starting in 10 days.

[madashell]

Fish_ , you also make it sound easy. I doubt it will happen but the entire AFMC was told that next payperiod they start automatically if nothing is fixed. What you are talking about is if they actually start firing people. If that occurs, then that process is followed. However, they can and plan to start one day off a week starting in 10 days.

They are not asking for a 20 percent pay reduction through payroll. It is 1 day a week for 22 weeks.

Assuming you work 50 weeks as a full time employee. Then the reduction is only about 11 percent because it only occurs for 22 weeks.

[fish_]

@ guest18
i think you posted elsewhere that you have a mortgage. the furlough will be tough on you. but everything i see and hear says that there will be no RIF (reduction in force) for gov't workers. Navy plans to start furloughs mid-april if sequestration hits. navy info is on http://www.donhr.navy.mil, links are on the right-hand side.

[guest18]

Yeah, sorry if that seemed a bit snappy. From everything I was told and have seen, if anything happens at all it will be done mid march so only a few will be affected and it will be short term (a day or two of pay). Some groups have just planned to do furloughs a month later so that way its fixed before anyone is affected.

[CMMMM]

fyi, at Army Research Lab, we were told that if furloughs happen, they would start late April.

[furloughboss]

Has anyone received furlough notices?

[upsetSMART]

Has anyone received furlough notices?

I think my office is getting official notice tomorrow. I'm debating talking to a lawyer myself. OPM defines full time as 2240 hours a year, which equates to 40 hours per week. I wonder if the SMART office would even engage in a legal fight or if a legal notice of contract violation would suffice to get the contract nullified. I'm not looking to leave immediately, but I would consider paying a few hundred to cut my payback time short by a few months worthwhile if for no other reason then to obtain the freedom to do what I want.

[furloughboss]

I think my office is getting official notice tomorrow. I'm debating talking to a lawyer myself. OPM defines full time as 2240 hours a year, which equates to 40 hours per week. I wonder if the SMART office would even engage in a legal fight or if a legal notice of contract violation would suffice to get the contract nullified. I'm not looking to leave immediately, but I would consider paying a few hundred to cut my payback time short by a few months worthwhile if for no other reason then to obtain the freedom to do what I want.[/quote]

I haven't read the handbook (2010 cohort) in quite a while. Does it specifically state we are promised full time employment? I believe the IRS defines a full-time as 30 hours per week.

[2010Recipient]

The handbook from 2012 says nothing about being guaranteed a full-time job. Nor does the most recent one. They say that we must accept the offer we are given, but SMART is under no obligation, legal or otherwise, to ensure that we work full-time. The contract we signed is very favorable to SMART in this respect.

[upsetSMART]

I'm a 2008 recipient, so I'll have to look at my original contract and handbook. Things were much better back then. IIRC from a class on contract and copyright law, the legality of the way SMART was doing the "you agree to any and all future changes unilaterally" part is questionable at best. Otherwise, they could just change it to increase the payback term arbitrarily. At the very least, any time a contract is changed, you have 30 days to reject it (This is an easy and legal way to get out of cell phone contracts without paying a termination fee. Reject the contract when one of the fees goes up even a few cents).

When you get into full time definition, it may vary by state. In my state, your employer defines what is legally considered full time, in which case I imagine (or at least hope) OPM's definition supersedes the IRS.

[concerned_SMART]

I am a 2012 Cohort and would be beginning phase II shortly.

Our contract says we will be offered full time employment.

[2010Recipient]

I am a 2012 Cohort and would be beginning phase II shortly.

Our contract says we will be offered full time employment.

Could you please quote or post the portion of the contract that says so. I have searched through it and nowhere have I been able to find anything saying that we are guaranteed to be full time employees. The portion discussing employment is:

I understand that this is a Scholarship for Service award and requires service in the form of post‐graduation employment; I understand that I am responsible for accepting post‐graduation employment with the Sponsoring Facility (SF) to which I am assigned under this award at a rate of one (1) calendar year of post‐graduation service for each academic year of the award, or six (6) months of post‐graduation service for each academic term (quarter, semester) or partial academic term of the award if the award length, in whole or in part, is less than a full academic year; I understand that if I do not comply with the degree completion and conferral timeline on the award, I may be required to complete an increased ratio of post‐graduation service.

[furloughboss]

I went through the latest handbook and found where it mentions full-time employment. Maybe someone can add to the list if I have missed something.

Page 8. Service Commitment: The “service commitment” is the participant’s agreement to accept a period of full-time employment with the SF after completion of the degree funded by SMART. What is that period? 1 month? 6 months?

Page 33. Participants work full-time for the SF in phase 2 until the service commitment is fulfilled.
Can we fill the service committment since it is not full time? Is it possible that they will turn this around and have us work the extra hours we were furloughed?

It would be nice to have a lawyer go through this contract. I clearly do not understand contractual law and am subject to speculation.

Hope all turns out well for everyone impacted!

[GuestTk]

I did contact a lawyer, he said to contact me back after I got my notice, but he was optimistic on getting at least some time off the contract or fully nullified. OPM also defines part-time employment as legally 32 hours:

http://www.opm.gov/policy-data-oversigh ... Employment

I am in the 2009 cohort, our contract calls out full-time employment, I am confident that SMART would be in breach of contract by not providing us full-time employment for the furlough period. The furlough period might be shortened though, you never know so it might be worth it to stick it out the whole time, until September to see if it goes through or not.

[2010Recipient]

I can only hope your lawyer is correct, but I am doubtful. For one, the handbook is a guide for participants, not SMART. The handbook does not obligate SMART to give us a full-time job, but that we accept full time work. Regardless, even if the point could be argued that the handbook did obligate SMART to give us full-time employment, there is this little clause in the contract which we all signed saying that we still need to fulfill our obligations:

I understand that the terms of this Notice of Award and Service Agreement and the Participant Handbook and its updates, amendments, and inclusions are severable. In the event that any part, term, or provision of this Notice of Award and Service Agreement and the Participant Handbook and its updates, amendments, and inclusions is deemed invalid or otherwise unenforceable by a court of law with proper jurisdiction, the remainder of this Notice of Award and Service Agreement and the Participant Handbook and its updates, amendments, and inclusions shall not be affected and shall remain in full force and effect.

This basically gives SMART the ability to sever portions of the agreement that they cannot fulfill, while still requiring us to pay off our time in full. Is it fair, no. Is it legal, yes. Such is the price you pay when signing legally binding documents. Please let us know if you get any further updates. I for one am already planning on leaving a few months early to attend grad school. As of now, I would have to pay that time back, but if you can make some headway, maybe we all can get our terms reduced.

[upsertSMART]

I did contact a lawyer, he said to contact me back after I got my notice, but he was optimistic on getting at least some time off the contract or fully nullified. OPM also defines part-time employment as legally 32 hours:

http://www.opm.gov/policy-data-oversigh ... Employment

I am in the 2009 cohort, our contract calls out full-time employment, I am confident that SMART would be in breach of contract by not providing us full-time employment for the furlough period. The furlough period might be shortened though, you never know so it might be worth it to stick it out the whole time, until September to see if it goes through or not.

Would you be willing to share how much going through the process to try and sever the contract costs if you have an idea. Or what kind of lawyer you were in contact with?

[GuestTK]

Well, the lawyer I contacted was an employment lawyer out of Houston, TX. I don't live there, but he was charging $275 an hour, I am not sure if I will go through with him but he hasn't charged me yet, pending a furlough notice and evidence that the furlough will be put into effect.

[GuestTk]

2010Recipient,

As per the 2009 contract, it didn't specifically call out that the Handbook had to be followed, I will check again but I am only going off of the contract I signed.

[upsetSMART]

Well, the lawyer I contacted was an employment lawyer out of Houston, TX. I don't live there, but he was charging $275 an hour, I am not sure if I will go through with him but he hasn't charged me yet, pending a furlough notice and evidence that the furlough will be put into effect.

I guess the kicker then would be how much work is involved in nullifying a contract. Did you get any indication of if its usually something automated (case sent to judge and signed like most traffic violation tickets), or if it's a full own lawsuit with a SMART legal representative?

[GuestTk]

I got the impression that it would end up as a negotiation with SMART rather than going through litigation.

[SoSmartItsStupid]

Here's a few things that could be of use to some people. If they're not useful, my apologies. Regardless of the provision of the actual contract and/or program handbook (which is an issue I'm interested in but making very little headway in understanding), there are some statutory provisions that place SMART scholars currently in Phase II in, what I think, is a curious position. I'm not a lawyer, I'm an engineer, so take all of this with a grain of salt.

Authority for SMART is laid out in: 10 USC 2192a. Section (d) lays out the ability for SecDef to bring SMART recipients into the excepted service.

The excepted service refers to any civil service position not in the competitive service (5 USC 2103).

Administrative furloughs of 30 days or less are covered as "adverse actions" under 5 USC Chapter 75, specifically in 5 USC 7512.

Applicability of Subchapter II of 5 USC 75 is where things get interesting. 5 USC 7511(a)(1)(C) says that the provisions of the subchapter (i.e. the ability to get furloughed) only applies, for excepted service, to (i) those NOT serving a probationary or trial period under an initial appointment pending conversion to the competitive service OR (ii) those having completed 2 years current continuous service...

If SMART students are considered to be in a probationary/trial period (that is, if 10 USC 2192a (d)(2) is a probationary/trial period), then the statute doesn't apply and I would say those who have completed less than 2 years of service may have grounds for arguing that they can't be furloughed. 5 USC 7511(c), however, may be an "out" for the OPM, in which case all of the above could be moot.

The point in putting this all out there is that I know my organization isn't thinking at this level, since Phase II SMART employees make up a fairly small fraction of overall employees. I would encourage you to contact your HR offices and challenge them to provide you with their basis for SMART inclusion in the furlough. If that doesn't work, then we'll have to fall back on the possibility that the Government is in breach of contract and will have to release us all from our service commitments early. This doesn't help us avoid the furlough, but at least we could go find other employment without the threat of massive debt from school suddenly hanging over our heads.