U.S. Merit Systems Protection Board

Information Sheet No. 12

Furloughs

This document provides general information on furloughs in the Federal 

government, and on certain Federal employee rights associated with furloughs. 

The information is not all-inclusive, nor is it regulatory in nature. Further, it 

should not be considered legal advice or guidance. Furloughs, which can be 

either an adverse action or a reduction in force, are governed by pertinent 

statues, regulations, and case law. Should you have specific questions about a 

furlough, you should contact your human resources representative or an attorney. 

The Merit Systems Protection Board is prohibited by statute from issuing any 

advisory opinion. 

What is a furlough?

The law, 5 U.S.C. § 7511(a)(5), defines a furlough as "the placing of an 

employee in a temporary status without duties and pay because of lack of work 

or funds or other nondisciplinary reasons." The same definition is repeated in 

the regulation at 5 C.F.R. § 752.402.

Is a furlough an adverse action, a reduction in force, or another type of 

action?

A furlough can be an adverse action or a reduction in force (RIF). Which one it 

is depends on its duration. The provision quoted above is part of 5 U.S.C. 

Chapter 75, which addresses adverse actions. While the law does not 

specifically distinguish between the two types of actions, the Office of Personnel 

Management RIF regulation at 5 C.F.R. § 351.203 defines a furlough as “the 

placement of an employee in a temporary nonduty and nonpay status for more 

than 30 consecutive calendar days, or more than 22 workdays if done on a 

discontinuous basis, but not more than 1 year.” Thus, a furlough of 22 or fewer 

discontinuous days is an adverse action; one for 23 or more days is a RIF. The 

distinction turns on the fact that 22 workdays equate to 30 calendar days. See

Clerman v. Interstate Commerce Commission, 35 M.S.P.R. 190 (1987).

What are the notice requirements for an adverse action furlough?

The same notice requirements apply to furloughs as to any other adverse action, 

such as a removal or suspension. They are set out at 5 U.S.C. § 7513(b): at least 

30 days’ advance written notice stating the specific reasons for the proposed 

action; a reasonable period, not less than 7 days, to answer; the right to be 

represented; and a written decision that conveys the specific reasons for the 

action, at the earliest practicable date. A regulation specific to furloughs, 5 
2

C.F.R. § 752.404(b)(2), adds that “When some but not all employees in a given 

competitive level are being furloughed, the notice of proposed action must state 

the basis for selecting a particular employee for furlough, as well as the reasons 

for the furlough.”

Are Administrative Law Judges (ALJs) and members of the Senior Executive 

Service (SES) subject to the same rules as other employees?

Not entirely. An adverse action may be taken against an ALJ “only for good 

cause established and determined by the Merit Systems Protection Board on the 

record after opportunity for hearing before the Board.” 5 U.S.C. § 7521(a). 

Members of the SES are subject to furlough under 5 C.F.R. §§ 359.801-359.807.

Are there many Board decisions on the merits of adverse action furloughs that 

illustrate what issues the Board will consider?

No. Earlier furlough appeals have generally been rendered moot when the 

appellants have received back pay prior to the Board’s adjudication. However, 

as is true of any appealable action that is within the Board’s jurisdiction, the 

Board is authorized to overturn the action if the appellant shows harmful error in 

the application of the agency’s procedures in arriving at its decision; that the 

decision was based on any prohibited personnel practice described in 5 U.S.C. 

§ 2302(b); or that the decision was not in accordance with law. 5 U.S.C. 

7701(c)(2)(A)-(C). 

May I raise a claim that a furlough was contrary to the requirements of my 

collective bargaining agreement?

Yes. The Court of Appeals for the Federal Circuit has held that the MSPB has 

jurisdiction to determine whether employees were properly “laid off” in 

accordance with Federal regulations and the terms of the applicable collective 

bargaining agreement. See Horner v. Schuck, 843 F.2d 1368 (Fed. Cir. 1988).

If I am a seasonal or on-call employee and I am laid off, may I appeal on the 

basis that I have been furloughed?

No, not if the lay-off is in accordance with the terms of your appointment. See 

National Treasury Employees Union v. Merit Systems Protection Board, 743 

F.2d 895 (D.C. Cir. 1984) (seasonal employees) and Prior v. Department of the 

Air Force, 56 M.S.P.R. 561 (1993) (on-call employees).

Do I have the right to a hearing on appeal?

Yes. If you have suffered an appealable furlough, that right is provided by law

in 5 U.S.C. § 7701(a)(1).
3

What rules apply to my hearing right?

The Board’s regulations make hearings public unless closing the hearing would 

be in the best interests of the appellant, a witness, the public, or any other person 

affected by the proceeding. 5 C.F.R. § 1201.52. The rules at 5 C.F.R. 

§§ 1201.51-1201.58 govern Board hearings, and the authority of the 

administrative judge (AJ) who hears your case is set out at 5 C.F.R. § 1201.41. 

An appellant may waive the right to a hearing by a clear, unequivocal, informed 

act. See Nugent v. U.S. Postal Service, 59 M.S.P.R. 444 (1993); Rogers v. U.S. 

Postal Service, 59 M.S.P.R. 647 (1993).

Do I have the right to an in-person hearing?

The Board has held that a hearing need not be conducted in person and may 

instead be conducted by video in the absence of a showing of prejudice. Koehler 

v. Department of the Air Force, 99 M.S.P.R. 82, 87 (2005). An appellant may 

also request a telephonic hearing, and although telephone hearings are 

appropriate in only limited circumstances, even in situations where the Board has 

found error in an AJ’s decision to order a telephone hearing over an appellant’s 

objection, the issue is whether it had a potential adverse effect on the appellant's 

substantive rights. See Lowe v. Department of Defense, 67 M.S.P.R. 97, 100 

(1995); Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48 (2004).