Government Furlough

[furloughboss]

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.

Thanks for putting this together. I'll talk to my HR command. I couldn't agree more about the organization not thinking at this level. I believe there are 2 scholars at my SF.

[upsetSMART]

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.

This is phenomenal. Thank you so much for compiling all that information. If nothing else, it's a good starting point for discussions with a lawyer if it comes down to it.

[SoSmartItsStupid]

I spend a little time this evening talking with the head of our administrative support group. The upshot of the discussion is that it appears that Phase II SMART scholars are indeed considered to be in a probationary period. We looked up the records of a competitive hire (all PII was guarded from my prying eyes) and noted that their probationary period was three years. Basically, they're career-conditional until transitioning to career status. If that's the case, then I would assume that our excepted service is also considered probationary, and thus, we may be able to make a justifiable case for not being furloughed, without any mention of the agreement we signed.

My guy didn't want to speak definitively, since he's not the actual authority, but he agreed with me that I made an interesting case. I have my HR specialist raising the issues at a telecon tomorrow with other organizations in my branch of service. Anything I learn, I'll be happy to share here.

Chances are still good that I'll be receiving a furlough notice on Friday, which will be a neat trick considering I have the day off...

[Guest]

I spend a little time this evening talking with the head of our administrative support group. The upshot of the discussion is that it appears that Phase II SMART scholars are indeed considered to be in a probationary period. We looked up the records of a competitive hire (all PII was guarded from my prying eyes) and noted that their probationary period was three years. Basically, they're career-conditional until transitioning to career status. If that's the case, then I would assume that our excepted service is also considered probationary, and thus, we may be able to make a justifiable case for not being furloughed, without any mention of the agreement we signed.

Indeed, the issue here is the excepted service, not SMART.

Of course, if you are still in a probationary period, you are the first to go in a RIF. Kind of a catch-22. You can't be furloughed (YAY!) but you are also on the chopping block (BOO!)

[furloughboss]

My SF50 does confirm that I was put into the excepted service (Block 34) and hired under 10 USC 2192a. Under Block 45 Remarks, it states that my appointment is subject to completion of one year trial period beginning xx/xx/2012.

Does anyone else have this "one year trial period" in their SF50?

[GuestTk]

This is a good find, anything that can bolster our position is good information.

[GuestTk]

I have the excepted service in my SF50 but nothing else regarding probation period, but I will double check my contract with the SF.

My SF50 does confirm that I was put into the excepted service (Block 34) and hired under 10 USC 2192a. Under Block 45 Remarks, it states that my appointment is subject to completion of one year trial period beginning xx/xx/2012.

Does anyone else have this "one year trial period" in their SF50?

[Guest]

I think after the one year trial period you have the equivalent of "tenure" as a govt. employee.

[upsetSMART]

We may have potential good news. The senate passed a Continuing Resolution that gave the DoD $10 billion to the O&M fund (salary falls into this 'color of money') to do as they see fit. I can't speak for other branches, but IIRC, Chief of Staff of the Air Force, General Welsh, was on record saying he would reverse the furlough if this happened as part of a Continuing Resolution. Of course it doesn't mean much until it passes the House and is implemented, but it's more good news on top of the arguments we have to avoid the furlough due to being excepted hires.

[GuestTk]

Are you all trying to not get furloughed or get out of the program?

I have the intention of getting out of the program.

[furloughboss]

On Block 24 of my SF50, it states my tenure is conditional.

I think after the one year trial period you have the equivalent of "tenure" as a govt. employee.

[furloughboss]

http://www.ita.doc.gov/hrm/sf50/sf50b.html

The above site has a description to each part of the SF50.

Excepted Service. Employees serving trial period, or whose tenure us equivalent to career conditional employment in the competitive service, and employees serving under Veterans Readjustment Appointment.

[2010Recipient]

Are you all trying to not get furloughed or get out of the program?

I have the intention of getting out of the program.

Getting out of the program is fairly easy. Talk to your SF and the SPO and say you wish to leave. You will be required to pay back a portion of what they gave you, but you will be able to get out of the program. I'm guessing that isn't what you want though. You want to leave the program but keep all of the money they gave you (which was given to you under the contractual obligation that you complete your service requirement). If that's the case then you are SOL. You knew exactly what you were getting into.

Look at it like this. How much money did SMART give you? I'm guessing a few 100K. That is a few 100K you would not have or would have to pay back in student loans. Divide that number by your service requirement to see how much your job is actually paying you. Lets face it, you may hate your job, but you made off pretty well money wise.

[SoSmartItsStupid]

I spend a little time this evening talking with the head of our administrative support group. The upshot of the discussion is that it appears that Phase II SMART scholars are indeed considered to be in a probationary period. We looked up the records of a competitive hire (all PII was guarded from my prying eyes) and noted that their probationary period was three years. Basically, they're career-conditional until transitioning to career status. If that's the case, then I would assume that our excepted service is also considered probationary, and thus, we may be able to make a justifiable case for not being furloughed, without any mention of the agreement we signed.

Indeed, the issue here is the excepted service, not SMART.

Of course, if you are still in a probationary period, you are the first to go in a RIF. Kind of a catch-22. You can't be furloughed (YAY!) but you are also on the chopping block (BOO!)

If the government decided to RIF someone, presumably (without doing any fact checking) that would be a situation in which the Phase II scholar is released from his/her service commitment. Which is fine - go find another job.

The crappy part of all of this is that Phase II scholars are stuck if furloughs come. We can't leave without incurring even more financial burden. We can't stay without accepting financial burden. For some of us, the financial burden will lead to debt, potentially resulting in loss of security clearance, resulting in loss of job, resulting in payback for unfulfilled commitment... the cycle is potentially disastrous. At least if you were RIF'ed, you could go find another situation (as financially irritating as that process might be).

I looked at my SF-50 and it classifies me as "excepted service" in block 34, and as "conditional" in block 24, which I take to mean as implying "probationary". If this is the case 5 USC 75 doesn't apply. 5 CFR 752.401 seems to indicate the exact same thing. Now I'm hesitant to ask, because I actually like my job (when the bureaucracy isn't threatening to make me explode) and would like to keep it!

We just got guidance that they're pushing back the decision on furloughs for two weeks to assess what the CR means. So maybe that's good news. Maybe not...

[GuestTK]

Yea, I guess I am SOL, but I am trying to get out of this hell hole. I have been applying to jobs out of the government, and I have gotten no where which is ridicolous because I have a relatively good GPA above 3.5 in undergrad and minor in management and a 4.00 master's from a very well known engineering school ranked in the top 10 for all engineering majors. My friends even with their Bachelor's are making more than 80k, I feel like crap undervalued and worthless. I took this scholarship to help my family because my father had cancer and I needed a way to help support them and try and finish school at the same time.

I have talked to recruiters, and they have said that my experience here, since it is not design work and mainly contract management doesn't really translate to industry level jobs so I am stuck in a rut trying desperately to leave. I am willing to leave after completing some of my commitment and pay back the rest so I guess I am stuck here until I can find another job that pays very well though it doesn't sound possible.

[Nunya]

Yea, I guess I am SOL, but I am trying to get out of this hell hole. I have been applying to jobs out of the government, and I have gotten no where which is ridicolous because I have a relatively good GPA above 3.5 in undergrad and minor in management and a 4.00 master's from a very well known engineering school ranked in the top 10 for all engineering majors. My friends even with their Bachelor's are making more than 80k, I feel like crap undervalued and worthless. I took this scholarship to help my family because my father had cancer and I needed a way to help support them and try and finish school at the same time.

I have talked to recruiters, and they have said that my experience here, since it is not design work and mainly contract management doesn't really translate to industry level jobs so I am stuck in a rut trying desperately to leave. I am willing to leave after completing some of my commitment and pay back the rest so I guess I am stuck here until I can find another job that pays very well though it doesn't sound possible.

Unfortunately, this seems to be a continuous thread for many in the program. The work you're doing doesn't give you any experience in your field. Basically, you can't work anywhere except where you are. If you're not making progress on the job search, I'm sorry to say it's probably you're targets. You'll likely be relegated to entry level positions just as those new graduates are targeting. If you really want out of the Govt. you're probably going to have to assume your "experience" is a useless waste of time. That or you’re not as qualified as you think.

[concerned_SMART]

I know of 2 scholars who have heard back from SFs (rather not say which ones just to protect identities) and they were told by their POCs that while they think they will be able to offer their SMART scholars jobs, SMART has taken a back seat to more important things and that it will be at least another month before they have any offer information for them (both graduate in May and were hoping to start in June).

Sounds to me like they (and anyone else in this situation) will probably have to find and accept a job elsewhere just to prevent them from being jobless when graduation arises. I hope that SMART realizes what these SFs are doing to students and doesn't give the students a hard time for leaving the program (I'm sure that won't happen and that it's just wishful thinking).

[upsetSMART]

I know of 2 scholars who have heard back from SFs (rather not say which ones just to protect identities) and they were told by their POCs that while they think they will be able to offer their SMART scholars jobs, SMART has taken a back seat to more important things and that it will be at least another month before they have any offer information for them (both graduate in May and were hoping to start in June).

Sounds to me like they (and anyone else in this situation) will probably have to find and accept a job elsewhere just to prevent them from being jobless when graduation arises. I hope that SMART realizes what these SFs are doing to students and doesn't give the students a hard time for leaving the program (I'm sure that won't happen and that it's just wishful thinking).

I know I waited a few months before my SF hired me, though I wasn't really complaining since back then the SPO kept the stipend rolling in until I was hired. I think it was on the next year's handbook/policy update that they put the 1 month limit on the stipend after graduation.

I'v heard rumors on this forum that the SPO has never actually gone through with payback threats. I wonder if there is a statute of limitations on recovery of the funds? Aside from student loan debt, I believe debts have a statute of limitations that varies by state. You can see the state timeframes here: http://www.creditinfocenter.com/rebuild ... ions.shtml

I believe the SMART program would fall under written contract. If that is the case, it appears that they would have a 3 year timeframe to sue me for collection of debts under my states limits, if I actually left phase 2 (Not really planning on that, I just want to avoid furlough) though I would verify this with legal consul before relying on the statute of limitations.

[kem0022]

Does anyone know what happens to the work schedule of Phase I participants if a furlough occurs? Are we still allowed to work five days a week or would we get cut to four with a reduction in our internship support payments? I am a bit confused about it because we are not payed by our SFs and because the internship support payments appear to be more of a housing stipend than a salary.

[recipient99]

@2010Recipient:

Getting out of the program is fairly easy.

Do you know this from reports of others' experiences, or is this just speaking in theory?

...If that's the case then you are SOL. You knew exactly what you were getting into.

It's my opinion that this wording is actually at least a little unfair to recipients. At least in my case, the scholarship office has been misleading and unfair with how they have gone about managing the program. So, to say that we "knew exactly what [we] were getting into" I don't believe is entirely accurate.

@GuestTk:

Yea, I guess I am SOL, but I am trying to get out of this hell hole.

I wouldn't be too hard on yourself. I am in a similar position. I think the best thing we can do is share with each other the information we find and the experiences we encounter in trying to deal with this adversity. I am grateful for everyone's efforts put forth so far.

[recipient99]

I was looking over my handbook, and it states, "Upon degree completion, the SSO will promptly hire Participants as full-time federal civilian employees."

That seems pretty clear-cut to me. I would like to look more into either making a case that I shouldn't be furloughed or that I should be released from the program. Has anyone pursued further discussions with the SF or scholarship office down this path?

[furloughboss]

I had a meeting with my boss, HR, and HQ Army about the SMART hiring authority and the ability to furlough someone on a trial period. The only person who thought the case was interesting and needed further investigating was my boss. The two HR reps believe that the hiring authority and the trial period have nothing to do with the ability to be furloughed. They did not have any reasoning for this.

So...has anyone had any other luck with getting a good argument for why we can be furloughed?

[guest222]

@ GuestTK,

Have you made any progress after speaking with a lawyer?

[Guest]

I had a meeting with my boss, HR, and HQ Army about the SMART hiring authority and the ability to furlough someone on a trial period. The only person who thought the case was interesting and needed further investigating was my boss. The two HR reps believe that the hiring authority and the trial period have nothing to do with the ability to be furloughed. They did not have any reasoning for this.

So...has anyone had any other luck with getting a good argument for why we can be furloughed?

You shouldn't have to mention the hiring authority very much in these conversations. The leg you're trying to stand on is "excepted service cannot be furloughed". First step is to find out if the HR rep believes that excepted service positions can/cannot be furloughed. Once you've gotten that far, find out if the HR rep believes that SMART hiring authority means excepted service or not.

I know of some HR reps who processed SMART hires through methods other than the SMART hiring authority (circa 2009), which means the SMART student technically may not have been excepted service.

[Guest]

http://www.opm.gov/policy-data-oversigh ... loughs.pdf

This guidance document appears to state that excepted service can be furloughed, but "eligible" excepted service can appeal to the MPSB.

Tough break...