[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Notices]
[Pages 8593-8603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4401]
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DEPARTMENT OF ENERGY
Planning Guidance for Contractor Work Force Restructuring
AGENCY: Department of Energy.
ACTION: Notice of Interim Planning Guidance.
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SUMMARY: The Department of Energy today publishes for public comment
interim Planning Guidance that has been issued to Department of Energy
field organizations and other components responsible for planning and
implementing contractor work force restructuring at defense nuclear
facilities and other DOE facilities. The Guidance includes procedures,
interpretations, and policies that the field organizations should use
in developing site-specific plans consistent with section 3161 of the
National Defense Authorization Act for Fiscal Year 1993. The Secretary
has decided that the section 3161 planning process should apply, to the
extent practicable and allowed by law, to work force restructuring at
all Department of Energy facilities.
[[Page 8594]]
DATES: Written comments (7 copies) are due on or before May 6, 1996.
The Guidance is effective upon publication in the Federal Register.
ADDRESSES: Comments must be submitted to: U.S. Department of Energy,
Office of Worker and Community Transition, WT-1, 1000 Independence
Avenue, S.W., Washington, D.C. 20585.
FOR FURTHER INFORMATION CONTACT: Ms. Deborah Sullivan, U.S. Department
of Energy, Washington, D.C. 20585, phone: 202-586-0452.
SUPPLEMENTARY INFORMATION:
I. Background
The Department of Energy (Department or DOE) has broad authority to
develop generally applicable policies covering all aspects of defense
nuclear facilities. The Atomic Energy Act, 42 U.S.C. 161(i)(3) and
2201(p). In addition, section 3161 of the National Defense
Authorization Act for Fiscal Year 1993, 42 U.S.C. 7274h, requires the
Department to develop a plan for restructuring the work force at a
defense nuclear facility whenever the DOE determines that a change in
the work force is necessary. Defense nuclear facilities within the
meaning of section 3161 include facilities conducting atomic energy
defense activities involving production or utilization of special
nuclear material, nuclear waste storage or disposal facilities, testing
and assembly facilities, and atomic weapons research facilities. The
Department has issued the Guidance published in this notice to assist
field organizations in developing site-specific plans consistent with
section 3161 and other applicable laws and is voluntarily publishing
this Guidance for public comment. The Department intends to revise the
Guidance periodically as appropriate in light of public comments and
experience. Various inadvertent errors and possible ambiguities in the
Guidance distributed on April 5, 1995, have been corrected and
clarified in this version. One significant respect in which the
Guidance has been clarified is to make it clear that all notices of
involuntary reductions in force of more than 100 employees at a single
site require specific Secretarial approval. Secretarial approval of a
work force restructuring plan does not authorize a site to give
involuntary separation notices without specific Secretarial approval
for the involuntary separations, although specific Secretarial approval
of the involuntary separations may be provided at the same time as
approval of the plan. Section 3161 furthers President Clinton's
``Putting People First'' policy, which emphasizes the importance of
conserving and efficiently redirecting the Government's valuable human
resources from pursuit of the Cold War to new missions. Some DOE
defense nuclear facilities are being downsized as a result of decisions
to reduce the nuclear weapons stockpile and terminate production of
nuclear weapons. Another major change at DOE defense nuclear facilities
has been the increase in recent years in environmental restoration and
waste management activities. At other defense nuclear facilities, work
force modification is needed because of different kinds of shifts in
the mission of the facility. Still other work force changes are the
consequence of reductions in the Department's budget. The essential
requirement of section 3161 is that the DOE must develop work force
restructuring plans to minimize the social and economic impacts of work
force changes at defense nuclear facilities.
Section 3161(c) sets forth six objectives that shall guide the
Department in preparing a work force restructuring plan for a defense
nuclear facility. First, changes in the work force at a DOE defense
nuclear facility: (1) should be accomplished so as to minimize social
and economic impacts; (2) should be made only after the provision of
notice of such changes not later than 120 days before the commencement
of such changes to such employees and the communities in which such
facilities are located; and (3) should be accomplished, when possible,
through the use of retraining, early retirement, attrition, and other
options that minimize layoffs.
Second, employees whose employment in positions at such facilities
is terminated shall, to the extent practicable, receive preference in
any hiring by the DOE (consistent with applicable employment seniority
plans or practices of the DOE and with section 3152 of the National
Defense Authorization Act for Fiscal Years 1990 and 1991 (Public Law
101-189; 103 Stat. 1682)). Third, employees shall, to the extent
practicable, be retrained for work in environmental restoration and
waste management activities at DOE facilities.
Fourth, the Department should provide relocation assistance to
employees who are transferred to other DOE facilities as a result of
the plan.
Fifth, the Department should assist terminated employees in
obtaining appropriate retraining, education, and reemployment
assistance (including employment placement assistance).
Sixth, the Department should provide local impact assistance to
communities that are affected by the restructuring plan and coordinate
the provision of such assistance with (1) programs carried out by the
Department of Labor pursuant to the Job Training Partnership Act (29
U.S.C. 1501 et seq.); (2) programs carried out pursuant to the Defense
Economic Adjustment, Diversification, Conversion, and Stabilization Act
of 1990 (Part D of Public Law 101-510; 10 U.S.C. 2391 note); and (3)
programs carried out by the Department of Commerce pursuant to title IX
of the Public Works and Economic Development Act of 1965 (42 U.S.C.
3241 et seq.).
In establishing the Task Force on Worker and Community Transition
on April 21, 1993, the Secretary of Energy directed that, for reasons
of fairness, the planning process set forth in section 3161 should be
applied, to the extent practicable and permitted by law, wherever work
force restructuring takes place in the Department. On April 23, 1993,
the Task Force issued draft General Planning Guidelines for Work Force
Restructuring.
The formulation and execution of any work force restructuring plan
is subject to the availability of appropriations, and differences in
benefits provided at different sites or to defense and non-defense
workers may reflect different levels of available funding.
II. Stakeholder Participation in Work Force Restructuring Planning
Pursuant to section 3161, all aspects of a defense nuclear facility
work force restructuring plan, including the mix and level of benefits
offered, shall be developed in consultation with affected DOE employees
(including employees of Department contractors and subcontractors),
representatives of collective-bargaining units of Department employees,
interested Federal, State, and local government agencies, educational
institutions and other institutions and groups in communities that will
be affected by restructuring.
The Guidance provides that draft plans shall be distributed for
stakeholder comment at appropriate points during the planning process.
The Department will not approve Plans developed by field organizations
unless there is a showing of meaningful stakeholder involvement in the
planning process. The Guidance also identifies specific methods field
organizations may use to obtain stakeholder input in the development of
site-specific plans.
[[Page 8595]]
In addition to site-specific stakeholder involvement, the
Department has involved stakeholders in work force restructuring
policymaking at the national level. The Guidance published today
reflects this extensive dialogue with stakeholders. Shortly after
section 3161 was enacted, the Secretary of Energy established a Task
Force on Worker and Community Transition to implement the new law and
to address more generally the impacts of defense conversion. The Task
Force held a National Stakeholders meeting on June 11, 1993, and
published a report on July 29, 1993, that summarized issues raised by
the stakeholders.
Based on continued stakeholder input and lessons learned from the
ongoing development of site work force restructuring plans, the
Department issued revised draft planning guidelines on March 24, 1994.
Additional policy guidelines were subsequently included in a Report on
the Department's Worker and Community Transition Program, issued by the
Under Secretary on August 24, 1994. In September 1994, the Office of
Worker and Community Transition replaced the Task Force and held a
second National Stakeholders meeting on November 15-16, 1994. A third
National Stakeholders meeting was held in Denver on April 20-21, 1995,
and a fourth was held in Albuquerque on September 13-15, 1995. Another
National Stakeholders meeting will be held in March 1996 in Atlanta.
III. The General Purpose of the Interim Guidance
The interim Guidance published today was prepared by the
Department's Office of Worker and Community Transition to plan for and
mitigate the impacts of changes in the Department's contractor work
force. The Guidance was developed to assist DOE field organizations
that are primarily responsible for developing section 3161 plans. The
Guidance sets forth generally non-prescriptive procedures for
coordinating Department activities related to section 3161 planning,
and contains interpretations and policy statements to help DOE field
organizations implement section 3161 consistently with applicable
contract provisions and other laws and obligations of the Department.
IV. Request for Public Comment
Although not required by law, the Department has chosen to publish
this revised interim Guidance for public comment so that all
stakeholders and the general public have an opportunity to influence
the general policies the Department is following during the section
3161 planning process. The Department will publish final Guidance with
appropriate revisions in light of the public comments and experience
with the interim Guidance.
Although the public is invited to comment on all aspects of the
Guidance, the Department is especially interested in receiving views on
the following provisions:
A. The ``Trigger'' or Threshold for Section 3161 Planning
Section 3161 directs the Department to develop a plan when it is
determined that ``a change in the work force at a defense nuclear
facility is necessary,'' and to submit the plan to Congress. The
Department has interpreted section 3161 to apply only where a change in
the nature or structure of the work force may affect 100 or more
employees at a site within a 12-month period. While a formal plan is
not required below this threshold, the Department will consider the
objectives of section 3161 during the planning process in such cases.
B. Hiring Preference for ``Employees Who Participated in Efforts To
Maintain the Nation's Nuclear Deterrent During the Cold War''
The Guidance lists several benefits which field organizations
should consider offering displaced workers, taking into account the
skills of the workers at the affected site, overall budget constraints,
contractual provisions, applicable pension and other benefits plans,
and other legal requirements and obligations. However, the Guidance
directs field organizations to provide a specific benefit--a hiring
preference--to employees who participated in efforts to maintain the
Nation's nuclear deterrent during the Cold War. This class of
employees, in whom the Department has invested heavily to develop
skills important to the Nation, is defined as employees who were
working for a DOE contractor on September 27, 1991, the day the first
unilateral reduction of the Nation's nuclear weapons stockpile was
announced, and who have continued to work for DOE since that date, as
set forth in greater detail in the attached Appendix D of the Guidance,
which has been revised to correct inadvertent omissions in Appendix G
as originally distributed on April 5.
The Guidance provides that employees who participated in efforts to
maintain the Nation's nuclear deterrent during the Cold War, whose
employment is terminated involuntarily (except those terminated for
cause) and who are qualified for the job at the time the work is to
begin, shall receive preference in any hiring conducted by the DOE and
its contractors and subcontractors (whose contracts equal or exceed
$500,000 in value) to fill vacancies, to the extent practicable and
consistent with veterans' preference, other applicable law, employment
seniority plans, and other legally binding preferences or practices, as
set forth in greater detail in Section V.A. of the Guidance.
Nothing in the Guidance is intended to obligate a contractor to
hire an employee who is not qualified to perform the work. The
preference is not applicable in situations where positions become
available and existing employees are offered a right of first refusal
to those positions, e.g., where one contractor has replaced another and
existing employees are offered a right of first refusal to employment
with the replacement contractor.
C. Retraining for New Missions Including Cleanup
Section 3161 directs the Department, to the extent practicable, to
retrain employees for environmental restoration and waste management
activities at the site of their employment or at other DOE facilities.
Eligibility for retraining benefits is not limited to employees who
have been terminated during a work force restructuring.
The Guidance provides, in the ``General Guidance'' section, that
early in the planning process, an analysis should be made of the
facilities' future mission and the work force skills and capabilities
that will be needed to fulfill that mission. The analysis should
compare those future requirements with the skills and capabilities of
current workers at the facility to identify workers who possess
critical skills that will be needed for the future mission and to
determine the retraining that will be necessary to provide existing
employees with these skills.
Accordingly, the ``Specific Benefits for Consideration'' section
provides that work force planning should identify training needs and
provide the training to prepare the existing work force for the DOE's
new missions (including environmental restoration and waste
management). Furthermore, this section recommends a standard for
determining whether retraining of employees for new missions, including
cleanup, should be considered ``practicable'' under section 3161(c)(3).
The recommended standard is that the training should be aimed at jobs
for which (1) vacancies are expected in the near term and (2) training
of current employees to fill those vacancies can be completed
[[Page 8596]]
within not more than six months at a cost of not more than $10,000.
(This training is different from the educational assistance provided
for separated employees.)
V. Opportunity for Public Comment
Interested persons are invited to participate in this proceeding by
submitting data, views, or comments with respect to today's notice.
Seven copies of written comments should be submitted to the address
indicated in the ADDRESSES section of this notice. Comments should be
identified on the outside of the envelope and on the documents
themselves with the designation ``Contractor Work Force Restructuring
Guidance.'' In the event any person wishing to provide written comments
cannot provide 7 copies, alternative arrangements can be made in
advance with the Department.
All comments received will be available for public inspection as
part of the administrative record on file for this matter in the
Department of Energy Freedom of Information Office Reading Room, IE-
090, Forrestal Building, 1000 Independence Avenue, S.W., Washington,
D.C. 20585, 202-586-6020, between 9 a.m. and 4 p.m., Monday through
Friday, except Federal holidays.
Issued in Washington, D.C. on February 1, 1996.
Robert W. DeGrasse, Jr.,
Director, Office of Worker and Community Transition.
Interim Planning Guidance for Contractor Work Force Restructuring
Table of Contents
I. INTRODUCTION
II. LEGISLATIVE PROVISIONS
III. GENERAL GUIDANCE
A. Threshold for Plans
B. Timing of Plans
C. Work Force Planning
D. Local Impact Assistance to Communities
E. Stakeholder Input to Plans
F. Role of Counsel
G. The Role of DOE Contractors
H. Approval of Plans
I. Plan Updates
J. Funding for Plans
IV. SPECIFIC BENEFITS FOR CONSIDERATION
A. Early Retirement
B. Voluntary Separation Incentives
C. Educational Assistance for Separated Employees
D. Relocation Assistance
E. Retraining for New Missions Including Cleanup
F. Displaced Workers Medical Benefits
V. MANDATORY BENEFITS
A. Preference in Hiring
B. Construction Worker Benefit
VI. ADMINISTRATIVE PROCEDURES
A. 120-Day Notification
B. Develop Baseline Data
C. Analyze Mission Requirements
D. Identify Positions Excess to Future Requirements
E. Stakeholder Involvement
F. Develop Voluntary Separation Program
G. Plan Approval
H. Involuntary Separation
I. Out placement Assistance
J. Budgeting for Plans
Appendix A
Office of Worker and Community Transition Contacts
Work Force Restructuring Field Contacts
Apendix B
Section 3161 of the National Defense Authorization Act for
Fiscal Year 1993
Section 3163 of the National Defense Authorization Act for
Fiscal Year 1993
Appendix C
Listing of Defense Nuclear Facilities
Appendix D
Job Attachment Test
Appendix E
Example of Form for Establishing Preference in Hiring
Appendix F
Sample Release for Use in Work Force Restructuring Programs
Interim Planning Guidance for Contractor Work Force Restructuring
I. Introduction
This planning guidance was prepared by the Department of Energy's
Office of Worker and Community Transition (the Office) to plan for and
mitigate the impacts of changes in the Department's contractor work
force. The Office is directed to assure fair treatment of all
concerned, while at the same time recognizing the unique conditions at
each site and in each contract.
This guidance replaces guidelines issued by the Task Force on
Worker and Community Transition on March 24, 1994. It is a product of
the Department's experience over the past 2 years, and an extensive
process of stakeholder and public involvement in shaping our worker and
community transition policies. This process included national meetings
on June 11, 1993, and on November 15 and 16, 1994. Comments were
solicited from the public on a report, issued by Under Secretary
Charles B. Curtis on August 24, 1994. Comments were also solicited on
earlier versions of this guidance issued on April 22, 1993, and March
24, 1994. Additional stakeholder meetings were held on April 20 and 21,
and September 13 through 15, 1995.
This guidance contains revisions and technical corrections to the
document originally distributed on April 5, 1995. The Office intends to
revise this interim guidance from time-to-time as warranted, based on
comments received through notice and publication in the Federal
Register, and other stakeholder comments and consultation.
Except where otherwise noted, this guidance is not prescriptive.
Cognizant field organizations have responsibility for planning work
force restructuring. The Department's field organizations are in the
best position to conduct full consultation with affected stakeholders
on these plans and to understand the unique needs of work force
restructuring at field facilities. Points-of-contact at each field
organization are listed in Appendix A.
II. Legislative Provisions
On April 21, 1993, Secretary of Energy Hazel R. O'Leary created a
task force ``to coordinate worker and community transition assistance
as the Department goes through periods of changing priorities.'' In
large measure, the task force was created to implement section 3161 of
the National Defense Authorization Act (the Act) for Fiscal Year 1993.
For reasons of fairness, the Secretary directed that the process set
forth in section 3161 should be applied to the extent practicable
wherever work force restructuring takes place in the Department.
Section 3161 requires the Secretary of Energy to develop a plan for
restructuring the work force for a defense nuclear facility whenever
there is a determination that a change in the work force is necessary.
The plan is to be developed in consultation with local, state, and
national stakeholders, and submitted to Congress 90 days after notice
of a planned work force restructuring has been given to the affected
employees and communities. A work force restructuring plan must be
updated annually and should include an evaluation of the implementation
of the plan during the preceding year.
Section 3161 of the Act provides specific objectives to guide the
preparation of the plan to minimize worker and community impacts. The
plan should provide at least 120 days notice to employees and
communities prior to beginning any involuntary separations. Reductions
should be accomplished, when possible, through use of retraining, early
retirement, attrition, and other options that minimize layoffs. To the
extent practicable, the Department should offer a hiring preference to
involuntarily separated employees. Employees should, to the extent
practicable, be retrained for work in environmental restoration and
waste management. Employees transferred to other Department facilities
should receive relocation assistance. Terminated employees should be
assisted in obtaining reemployment assistance, including Out placement
services,
[[Page 8597]]
appropriate retraining and education opportunities. The Department
should provide local impact assistance to affected communities.
Relevant sections of the Act are available from the sources listed in
Appendix B.
Pursuant to section 3163, ``defense nuclear facilities'' for the
purposes of section 3161 include the following types of facilities
under the control or jurisdiction of the Secretary of Energy: atomic
energy defense facilities involving production or utilization of
special nuclear material; nuclear waste storage or disposal facilities;
testing and assembly facilities; and atomic weapons research
facilities. Department of Energy facilities that have been determined
to be defense nuclear facilities for the purposes of section 3161 are
listed in Appendix C.
III. General Guidance
All work force changes, regardless of cause, should be managed by
the cognizant field organization consistent with the objectives of
section 3161 of the Act, and DOE Order 3309.1A covering Reductions in
Contractor Employment.\1\ Each plan should be developed by the field
organization consistent with budget constraints, contractual provisions
or other obligations. All aspects of a plan, including the mix and
level of benefits offered, should be developed in consultation with the
stakeholders at the affected facility, and other appropriate
stakeholders to ensure, among other things, the judicious expenditure
of public funds. The Office encourages field organizations to utilize
the combination of work force restructuring mechanisms that will most
effectively accomplish the restructuring objectives.
\1\ Order 3309.1A is being revised to incorporate the
requirements of section 3161 of the Act and the organizational
changes resulting from the creation of the Office of Worker and
Community Transition.
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A. Threshold for Plans
Work force restructuring plans should be developed where changes in
the nature or structure of the work force may affect 100 or more
employees at a site within a 12-month period. Even when a full plan is
not required, the objectives of section 3161 should be followed, to the
extent practicable within available resources. While the objectives of
section 3161 should be considered in cases of smaller reductions, the
formal process required by the law is not necessary. Approval from the
Office and the responsible program and funding office should be
received before any work force change is implemented.
B. Timing of Plans
Upon determining that a change in the work force is necessary, the
appropriate field organization should immediately begin planning for
the restructuring, and develop a schedule for preparing a work force
restructuring plan, if required. One of the objectives of the Act is to
give at least 120 days notice to the employees before involuntary
layoffs begin. Although a 120-day advance notification may not always
be possible, every effort should be made to meet or exceed this
important objective. Field organizations should work with the Office to
develop a schedule for plan development that meets the needs of the
site. The work force planning described below should occur on a
timeline that supports this advanced notification objective, to the
extent practicable.
C. Work Force Planning
The Office is developing an integrated process for a work force
planning system, pursuant to the Secretary's direction. In the interim,
we will employ the best possible work force planning practices
available, consistent with the objectives set forth below.
Developing a baseline assessment of the skills and capabilities of
the current work force should be the initial step in the work force
planning process. Field organizations should then consider the future
missions and budget estimates to project the required work force skills
needed to achieve the desired outcomes. Strategies should be developed
for making the transition from the current baseline to the projected
need, including retraining, voluntary separation incentives, and
reductions-in-force. Particular attention should be directed to
ensuring that workers with critical skills are retained.
D. Local Impact Assistance to Communities
The work force restructuring plan should be developed in
coordination with, and in support of, the economic development
objectives of nearby communities. Therefore, local officials and
institutions involved in mitigating social and economic impacts
anticipated to be caused by the Department's actions should be
consulted in development of the plan. The plan should provide
demographic and skills information about the affected work force, as
well as other data that could help frame the community's economic
development challenges and options. It should also discuss benefits,
such as education and training, that will be provided to eligible
employees that can augment community-based economic development
initiatives. Finally, it should address ways the Department can support
local business creation, expansion, and attraction activities. Separate
guidance was issued August 24, 1994, on economic development efforts
that may be supported by the Worker and Community Transition Program.
Copies of this guidance may be obtained from the Office.
E. Stakeholder Input to Plans
Consultation with local, State, and national stakeholders, as well
as State and local Government officials, is an essential element of the
work force restructuring process. Input should be solicited and given
consideration at appropriate points throughout the development of plans
for work force restructuring. When possible, the Office recommends that
field organizations make this Interim Planning Guidance available to
their stakeholders in advance of the 120-day notification. This will
give stakeholders a perspective on the parameters within which plans
are prepared.
F. Role of Counsel
Work force restructuring raises many legal issues under a wide
variety of statutes. Failure to comply with applicable laws can have
significant consequences for both the Department and its contractors.
It is therefore essential that counsel be involved in the formation and
execution of the plans. Failure to present properly structured plans to
the Office can result in delay and increased cost. Therefore, field
organizations should include counsel as a member of the planning team.
G. The Role of DOE Contractors
While the Department may seek the assistance of its contractors in
developing work force restructuring plans, the plans are Department of
Energy products. In general, it is the Department's policy to make
information available to the public that is available to the operating
contractors and has bearing on the plans, unless such information is
protected by law or regulation.
Department contractors are not identified by section 3161 of the
Act as stakeholders who must be consulted in the preparation of work
force restructuring plans. The exclusion of these contractors would be
inappropriate, however, as they may be the principal resource of
institutional knowledge on many restructuring issues, and may be the
only source for certain information necessary for
[[Page 8598]]
preparing a plan. They are the employers of the affected employees and
are generally the administrators of the pension and other benefit plans
involved. They are responsible for fulfilling their obligations to
bargain with the collective-bargaining representatives of their
employees regarding changes in contracts, pension plans, other
benefits, and any other mandatory bargaining issues necessitated by the
restructuring plan, as well as for obtaining any waivers of claims or
reemployment appropriate in any given situation. However, the
Department is responsible for developing the plans.
H. Approval of Plans
By law, the Secretary submits work force restructuring plans to
Congress, and thus is the official responsible for final approval.
Involuntary separations should be carried out consistent with DOE Order
3309.1A, which requires prior notification to Headquarters. All notices
of involuntary separation that affect more than 100 management and
operating (M&O) employees at a single site require Secretarial
approval. Early retirements and other voluntary separations may begin
before final plan approval, after written approval by the Office, in
order to reduce the number of involuntary layoffs. Draft plans should
be submitted to the Office for concurrence prior to their release to
stakeholders.
I. Plan Updates
Within a year of a work force restructuring plan's submission to
Congress, or earlier if events suggest that it would be appropriate,
the cognizant field organization should submit an update of the plan to
the Office for the Secretary's approval and submission to Congress. The
plan update, which is required by law, should evaluate the plan's
implementation, including the number of workers receiving each benefit
and the overall cost, and cost per participant of that benefit,
together with information on retraining of retained employees, and
subsequent reemployment of displaced workers. These plan updates should
be provided to the Office for submission to the Congress even when a
new plan is under development.
J. Funding for Plans
Limited funds are available for implementing the objectives of
section 3161 of the Act for defense nuclear facilities, including
economic development assistance. Funding for work force restructuring
plans at facilities other than defense nuclear facilities should be
sought from the program responsible for the activities subject to the
work force restructuring. Likewise, benefits for workers at defense
nuclear facilities affected by the changes due to business or
efficiency decisions should be sought from the appropriation of the
program making the change. These decisions include initiatives such as
privatization, commercialization and reductions aimed at achieving
improved efficiency.
The allocation of funds to mitigate the impact of restructuring on
the workers decreases the funds available for continuing program
responsibilities and economic development. No ``standardized''
allocation of funds is contemplated as it is highly unlikely that the
needs of any two work forces and communities undergoing a restructuring
would be the same.
IV. Specific Benefits for Consideration
After work force planning has identified the classifications of
workers at risk, consideration of specific benefits to mitigate
involuntary separations should take into account available funding and
the status of affected employees. In implementing the objectives of
section 3161 of the Act, the Department recognizes a special
responsibility to minimize the impact of work force restructuring on
employees who were employed before September 27, 1991, the day
President Bush announced the first unilateral reduction of the Nation's
nuclear weapons stockpile, and the date the Department has chosen as
the end of the Cold War. Appendix D contains the job attachment test
that has been developed for determining those employees who
participated in efforts to maintain the Nation's nuclear deterrent
during the Cold War.
In developing a work force restructuring plan, the following
benefits may be considered for affected workers. If adopted, specific
offers and conditions should be described in the plan.
A. Early Retirement
The potential loss of employees with skills critical to achieving
Departmental missions is a primary consideration in determining the
appropriateness of early retirement incentives. When early retirement
incentives are offered, it has generally been the Department's practice
that the incentives are made available to all eligible employees. It is
legally permissible to limit benefits by reasonable, objective
categories such as job classification if such limitations do not give
rise to unlawful discrimination or disparate impact of any kind.
Enumeration of employees by name, or criteria having substantially the
same effect, is not generally considered reasonable, unless the
employer has utilized written, objective and neutral criteria in the
selection process. Early retirement incentive programs must be
consistent with applicable contracts.
All proposed retirement incentives including lump sum payments,
additional years of service or reduction in age penalties, should be
analyzed with respect to the likely candidates to accept, and potential
effects on critical skills. Employee Retirement Income Security Act
(ERISA), Age Discrimination In Employment Act (ADEA), and other related
legal concerns must be considered and resolved early in the process. It
is essential that proposed early retirement programs receive
appropriate actuarial validation establishing that they do not result
in discrimination in favor of highly compensated employees within the
meaning of the Internal Revenue Code, or in discrimination on the basis
of any protected category of employees with respect to employment laws
such as ADEA, Title VII of the Civil Rights Act, and the Americans with
Disabilities Act.
Employees receiving an incentive to retire should not receive
educational assistance or relocation assistance. It is anticipated that
the value of early retirement incentives will exceed the value of the
benefits provided to other separating employees. Any lump sum
incentives paid to retirees in lieu of pension formula enhancements may
not exceed his or her previous year's salary consistent with Department
of Energy Acquisition Regulation Part 970.3102-2(1)(6) and Federal
Acquisition Regulation Part 31.205-6(j)(7).
The cognizant field organization should adopt as part of its plan
mechanisms to ensure that individuals accepting an early retirement
incentive are not inappropriately rehired. Such mechanisms could
include post-employment restrictions, requiring repayment of the
incentive, and limiting the number of waivers of any such restrictions
for critically skilled individuals.
B. Voluntary Separation Incentives
Voluntary separations may be encouraged by offering severance, or
enhanced severance payments. Applications for voluntary separation may
be refused in order to preserve critical knowledge or skills. Those
volunteering for separation may be offered educational assistance, and
relocation assistance, and they may
[[Page 8599]]
receive Displaced Workers Medical Benefits.
The cognizant field organization should adopt as part of its plan
mechanisms to ensure that individuals accepting a voluntary separation
incentive are not inappropriately rehired. Such mechanisms could
include post-employment restrictions and require repayment of the
incentive upon rehire. Individuals with critical skills should not be
offered voluntary separation incentives unless sufficient personnel are
available to fulfill mission requirements.
C. Educational Assistance for Separated Employees
Educational assistance should be considered for employees being
voluntarily or involuntarily separated, except for employees accepting
early retirement incentives. It is recommended that tuition assistance,
and other reasonable and necessary educational expenses, be limited to
not more than a total of $10,000 over a period of not more than 4
years.
D. Relocation Assistance
Relocation assistance should be considered for workers being
terminated and for those voluntarily separating, except for employees
accepting early retirement incentives. Such assistance should
particularly be considered for employees involuntarily separated who
are hired at other Department facilities, but who do not qualify for
relocation assistance under the hiring contractor's policies. It is
recommended that relocation assistance include actual and reasonable
expenses for transportation, movement of household goods, and temporary
living accommodations within a range of $2,000 to $5,000.
E. Retraining for New Missions Including Cleanup
Work force planning should identify training needs and provide such
training to transition the existing work force to new missions as early
in the process as possible. The Office recommends that all retraining
for cleanup or other missions meet the following practicability test:
the training should be aimed at jobs for which vacancies are expected
in the near term; and the training should be able to be completed
within a reasonable time-frame in relationship to those vacancies (not
more than 6 months), and at a reasonable cost (not to exceed $10,000).
The suggested $10,000 cap includes tuition, course materials and
related instructional costs, but not trainee salaries.
F. Displaced Workers Medical Benefits
Displaced Workers Medical Benefits, while not specifically
mentioned in the objectives of section 3161 of the Act, should be
offered to all employees of M&O or other prime contractors to the
Department as an extension of current medical benefits eligibility.
Department of Energy Acquisition Letter No. 93-4, dated April 7, 1993,
establishes guidelines for implementing this program. \2\
\2\ Subsequent to the issuance of Acquisition Letter No. 93-4,
the Displaced Medical Benefits Program was expanded by memoranda to
field organizations dated August 12, and December 2, 1993. The
Department is currently revising Acquisition Letter No. 93-4 based
on these memorandums. All separating employees of M&O contractors
who were eligible for medical benefits prior to their separation
from employment are eligible for continued coverage under the
Displaced Workers Medical Benefits Program regardless of whether
they meet the section 3161 job attachment test.
---------------------------------------------------------------------------
Eligible employees include voluntarily and involuntarily separated
employees of M&O contractors who are not otherwise eligible for such
coverage under another program. Under certain circumstances, an
employee may be able to continue coverage, at the employee's expense,
for pre-existing medical conditions excluded from coverage under
another plan for which he or she becomes eligible. Retirees who are
provided medical coverage through retirement programs or Medicare are
not eligible for this program.
During the first year following separation, the contractor will
continue to pay its portion of the former worker's medical premium, and
the former employee will pay his or her normal share. During the second
year, the former employee will pay half of the Consolidated Omnibus
Budget and Reconciliation Act (COBRA) rate. During the third and
subsequent years, the former employee will pay the full COBRA rate.
V. Mandatory Benefits
The benefits described below must be offered to eligible employees:
A. Preference in Hiring
Section 3161 of the Act provides that, to the extent practicable,
terminated employees at a defense nuclear facility should receive
preference in filling vacancies in the work force of the Department of
Energy and its contractors and subcontractors. The Department has
determined that employees must be identified as having helped maintain
the Nation's nuclear deterrent during the Cold War in order to qualify
for this preference. The preference should be honored by all prime
contractors, and by subcontractors whose contracts with the Department
equal or exceed $500,000 in value.
The Department has established the following criteria for
determining eligibility for the hiring preference: the individual must
be a former employee (1) who was involuntarily terminated (except if
terminated for cause); (2) who meets the eligibility standards in
Appendix D; and (3) who is qualified for the job at the time the work
is to begin. Where qualifications are approximately equal, eligible
individuals will be given preference in hiring. However, the preference
will be administered consistent with applicable law, regulation, or
executive order, and collective bargaining agreements. This preference
is not immediately applicable in situations where positions become
available through an outsourcing action or follow-on contract in which
the current employees should first be offered their same or similar job
with the replacement contractor in order to avoid a layoff.
An individual's hiring preference continues until termination by
the action (or inaction) of that individual. Initially, and on an
annual basis thereafter, eligible individuals must certify their desire
to retain their hiring preference. The Office has developed a
Preference in Hiring Eligibility Form for this purpose (Appendix E)
which eligible individuals should submit to their DOE field
organization. Actions that would terminate an individual's hiring
preference include: voluntary termination or termination for cause from
a position that was obtained through the exercise of the preference, or
failure to comply with the annual certification requirement.
The Department developed the Job Opportunity Bulletin Board System
(JOBBS) to simplify implementation of the hiring preference by eligible
individuals, and by contractors and subcontractors. Those individuals
who have applied for and have been determined to be eligible for the
preference may have their resumes entered into JOBBS where they will be
specifically identified as job seekers with hiring preference.
Companies doing new hiring for Department of Energy work should place
job announcements into JOBBS. Contractors and designated subcontractors
(those whose DOE contracts equal or exceed $500,000 in value) will be
instructed by the cognizant field organization to first seek eligible
workers among those with the hiring preference listed in JOBBS. All
other subcontractors should be encouraged to use JOBBS when hiring for
DOE work. Eligible individuals who
[[Page 8600]]
do not want to enter their resumes into JOBBS are responsible for
informing potential employers of their preference.
Each field organization should develop procedures to ensure that
the hiring preference is being honored by all prime contractors and
designated subcontractors. The procedures should state that eligible
individuals have the responsibility to: (1) Apply for the preference by
submitting the Preference in Hiring Eligibility Form to the DOE field
organization along with any necessary documentation for verification of
their eligibility; (2) inform potential employers of their preference
status; and (3) certify their continuing status through annual
submission of the Preference in Hiring Eligibility Form. Field
organization procedures should also describe how JOBBS can be used by
eligible individuals to help fulfill these responsibilities and to aid
their search for job openings that should honor the preference. The
procedures may establish criteria for use by hiring contractors who
must choose among eligible workers who are equally qualified for the
same job opening. One example would be assigning a higher priority to
candidates within commuting distance of the new job. The procedures
should also describe how potential disputes will be resolved. The
Office will review the field organization procedures. The procedures
should be posted where other material of worker interest is normally
posted, such as employee bulletin boards.
The Department encourages negotiation to incorporate the hiring
preference by agreements for division of work and arrangements for
accommodations of internal union rules that might otherwise be
obstacles to implementation of flowdown of the hiring preference to
applicable subcontracts. Field organizations may facilitate
implementation of the hiring preference by developing subcontract award
criteria or performance measures and related fee incentives based on
the hiring preference.
B. Construction Worker Benefit
Construction wage rates and benefits are structured to take into
account the intermittent nature of construction work. In recognition of
this, early plans generally limited benefits for construction workers
to tuition assistance, outplacement support, preference in hiring and
relocation assistance. However, it has been noted that many
construction workers have maintained long-term relationships with the
Department, and structured their lives around work at our facilities.
Many of these relationships, which had been expected to continue, have
been terminated as the general level of construction work declined
following the end of the Cold War.
The Department has determined that construction workers who meet
the job attachment test (Appendix D) may elect to receive a one-time
benefit. In return for that benefit, these construction workers, like
other employees, may be required to waive the hiring preference. The
one-time benefit should be consistent with the employer's established
separation pay benefit, if applied, but should not exceed 6 weeks at
base pay rates. The specific amount of this benefit, as well as other
benefits for construction workers should be defined during the plan
development and stakeholder consultation process. The Office does not
suggest that special payments should be made into either pension or
health and welfare benefits funds for these workers. The Office does
not view this special benefit as a precedent-setting action for the
construction industry since this benefit carries out the intent of
legislation that uniquely applies to the Department of Energy's
Federal, contractor and subcontractor work force.
Construction workers who receive the special benefit should be
restricted from employment at a Department facility for a period not
less than the period equal to the salary value of the benefit without
specific approval of the Department or pro rata repayment of this
benefit.
VI. Administrative Procedures
This section describes the administrative procedures that should be
followed in developing a new work force restructuring plan or for
modifying an existing plan.
A. 120-Day Notification
Field organizations should notify workers and communities of
impending work force restructuring at least 120 days prior to making
any involuntary separations. The cognizant field organization should
issue a general announcement to all employees, employee
representatives, and to the community at large that work force changes
are required at the facility. The draft announcement should be
coordinated with the Office. We will seek concurrence from
Congressional, Public, and Intergovernmental Affairs and the
appropriate program offices. Field organizations should allow at least
1 week for Headquarters approval of 120-day announcements.
It is important that the notice emphasize that the estimate of
employees affected set out in the 120-day notice is a good faith
estimate based on the information available at the time. The notice is
the beginning of a downsizing process; this process and the related
budget issues are necessarily fraught with uncertainties, making it
difficult to predict the exact number of employees that will be
affected. It is recognized that a 120-day notification may not be
practicable under certain extraordinary circumstances; however, as much
advance notice should be given as possible.
B. Develop Baseline Data
Field organizations should establish and maintain a baseline
employment database that categorizes the total number of personnel
employed on-site by contractor, program funding source and skill mix.
As a basis for categorizing skills, the Office encourages field
organizations to utilize the Common Occupational Classification System
to ensure consistency across the Department. The baseline should also
contain the number of people employed on a temporary or intermittent
basis, and by subcontractor or support service contractors. Field
organizations should provide this information to the Office on a
quarterly basis. Field organizations are responsible for carrying out
the data collection and analysis. Once the baseline information is
established, the Office intends to conduct an independent audit to
ensure data reliability, as appropriate in particular circumstances.
C. Analyze Mission Requirements
Field organizations should analyze, and revise as necessary, future
mission requirements and the work force skills required to carry out
those missions. Appropriate program offices are responsible for
defining the parameters of the future missions. New or modified work
force restructuring plans should include a detailed description of the
methodology and analysis used to define the work force necessary to
execute the missions.
D. Identify Positions Excess to Future Requirements
Based on the current work force, and the work force necessary to
carry out future missions, the plan should identify the classification
of employees that should be:
1. Retained because they possess critical skills;
2. Retained with little or no retraining;
3. Retained with appropriate retraining; and
4. Considered for voluntary separation incentives.
[[Page 8601]]
The analysis should also identify those job skills that are
unlikely to be satisfied by existing workers.
E. Stakeholder Involvement
Early involvement of stakeholders in developing a work force
restructuring plan is essential to identify and address issues and
concerns that might impede the implementation of the plan. Stakeholders
should also be given appropriate opportunity to comment on drafts of
any new or modified work force restructuring plan as soon as the draft
plan has been cleared by the Office for release to the public. The
Office will endeavor to concur on draft plans within 2 weeks of
submission.
Stakeholder input may be received at public meetings, or through
written or oral comments. Comments and suggestions of all stakeholders
are important and should be considered in developing the final plans
and incorporated where appropriate. For those comments and suggestions
not incorporated in the draft plans, a brief explanation of the reason
for not doing so should be documented. Every effort should be made to
make the plan approved by the Secretary available to each stakeholder
who commented on an earlier draft of the plan. A discussion of
stakeholder involvement should be included as part of each plan.
F. Develop Voluntary Separation Program
After appropriate work force planning has been completed, field
organizations should consider voluntary separation incentives to
facilitate work force transition. Voluntary incentives must be approved
in writing by the Office. Such approval can be sought, and the
incentive can be offered, prior to completion of any new or modified
work force restructuring plan.
Retirement incentives, accompanied by the appropriate analysis,
should be presented for approval to the Office. The Office will
coordinate analysis and evaluation of proposals with the Office of
Procurement and Assistance Management, the Office of General Counsel,
and the program office. Employees being offered early retirement or
voluntary separation incentives must receive sufficiently specific
information to satisfy ERISA requirements.
Early retirement incentives will be evaluated for their consistency
with maintaining critically needed skills and any request should
include a full justification in conformance with this requirement.
Field organizations should provide an assessment of the costs and
benefits of the proposed voluntary incentives, particularly in work
force transitions designed to increase organizational efficiency. Field
organizations should plan to provide at least 2 weeks for review by the
Office and appropriate headquarters organizations.
Voluntary separation programs should not be offered to employees at
the same time as early retirement programs, except in special
circumstances and with prior approval. Voluntary incentive programs
should be completed prior to any involuntary separations.
In exchange for the enhanced benefits employees receive in a
voluntary separation program, it is the Department's policy to obtain
from employees who separate under such a program a release of claims
related to their employment and separation. The Department has adopted
a model form of release, which is provided in Appendix F. Variations
from the model may be required by state law or other special
circumstances. However, departures from the model will require
Department approval, including from the Office of General Counsel.
G. Plan Approval
The Office will coordinate the appropriate review by other
Headquarters offices before concurring with plans or approving requests
to implement voluntary incentive programs. In general, the Office will
seek review from the affected program office, General Counsel, Field
Management, and Human Resources and Administration. Field organizations
should allow 1 month for Secretarial approval of final Work Force
Restructuring Plans.
Thirty copies, plus 1 reproducible master, of the final plan should
be submitted to the Office for subsequent submission by the Secretary
to the appropriate Congressional committees and delegations from
affected States. The responsible field organization should also make
distribution to interested local stakeholders, and to the points-of-
contact at each cognizant field organization. The Office will make
additional copies, if necessary, from the master for distribution
within Headquarters and to interested national stakeholders.
H. Involuntary Separation
In general, involuntary separation notices may not be given until
after Secretarial approval. The notices should identify the specific
numbers and job titles to be laid off. Each affected individual should
be notified of his or her termination. Involuntarily separated
employees shall be fully advised of any benefits or services for which
they are eligible. Appropriate labor representatives should be notified
and letters prepared for local, county and state governments.
If layoffs are required that fall under the provisions of the
Worker Adjustment and Retraining Notification Act (WARN), the employers
must give the affected employees written notice of the layoffs at least
60 days prior to the date of the intended layoff. Employers may conduct
the involuntary layoff by providing written notice to the affected
employees that their termination date will occur 60 days thereafter.
Compensation will continue during the 60-day period following the
notice and where appropriate, employees may be excused from some or all
duties during that period. If, during the 60-day period, an employee
successfully obtains new employment, the employee must terminate the
current employment relationship before beginning the new job, at which
time the remaining salary payments shall cease. If this salary was paid
in a lump sum, the pro rata share attributable to the period after the
employee commences the new employment should be repaid. Repayment terms
should be established within the restructuring plan and explained to
employees during the exit interview process.
As a goal, all affected employees should receive their individual
notification 60 days before layoff. When this is not possible, and the
work force change is not subject to the provisions of the WARN Act,
affected workers should receive as much layoff notice as practicable,
but not less than 14 days. Intermittent workers are terminated when
their work is completed.
I. Outplacement Assistance
Field organizations may provide Out placement assistance (including
training and education) to voluntarily separated employees as soon as
they exercise that option, and to involuntarily separated employees as
soon as they are notified. Appropriate outplacement assistance can also
be made available to employees who may be at risk after the 120-day
announcement has been made. Out-placement assistance should be planned
in advance and should be appropriate in light of the number of
employees expected to need such assistance. Field organizations are
encouraged to track the employment, education, and insurance status of
displaced workers for at least 1 year after separation.
[[Page 8602]]
J. Budgeting for Plans
Plans must include a budget estimate for each initiative or benefit
planned for mitigating impacts on workers. Budget estimates should be
based on a realistic projection of the number of workers who will
participate in each initiative and reflect the best cost estimates
available. Estimated incremental costs to pension funds for early
retirements should be based on actuarial estimates. It is not
acceptable to request funds based simply on maximum possible
participation in each initiative or benefit. For planning purposes, an
average cost of $15,000 to $25,000 per position eliminated is a
reasonable range for guiding decisions about the range of benefits
offered. Where work force restructuring is justified by business
efficiency decisions, the budget estimates should be accompanied by
savings estimates and the proposed use of those savings. In general,
funding authorizations will be made following final approval of a plan.
Funding authorizations for certain initiatives, such as those
encouraging voluntary separations, may be made earlier.
Appendix A--Office of Worker and Community Transition Contacts
Director:
Bob DeGrasse--202-586-7550, FAX 586-8403
Deputy Director:
Terry Freese--202-586-5907, FAX 586-8403
Work Force Restructuring:
Terry Freese--202-586-5907, FAX 586-8403
Lew Waters--202-586-4010, FAX 586-8403
Work Force Planning:
Debby Swichkow--202-586-0876, FAX 586-8403
Lew Waters--202-586-4010, FAX 586-8403
Labor Relations:
Lyle Brown--202-586-0431, FAX 586-8403
Deborah Sullivan--202-586-0452, FAX 586-1540
Community Transition:
Bob Baney--202-586-3751, FAX 586-1540
Mike Mescher--202-586-3924, FAX 586-1540
Debby Swichkow--202-586-0876, FAX 586-8403
Public Participation:
Laurel Smith--202-586-4091, FAX 586-8403
Work Force Restructuring Field Contacts
Felix Ortiz, Albuquerque Operations Office--505-845-4207, FAX 845-
4715
Elaine Kocolowski, Chicago Operations Office--708-252-2334, FAX 252-
2919
Luella Bennett, Idaho Operations Office--208-526-1913, FAX 526-5969
Bob Agonia, Nevada Operations Office--702-295-1005, FAX 295-1876
Bill Truex, Oak Ridge Operations Office--423-576-0662, FAX 576-6964
Harry Printz, Oakland Operations Office--510-637-1829, FAX 637-2008
Ken Briggs, Ohio Field Office--513-865-4267, FAX 865-4312
Dom Sansotta, Richland Operations Office--509-376-7221, FAX 376-5335
Lenora Lewis, Rocky Flats Field Office--303-966-4263, FAX 966-3321
Dave Hepner, Savannah River Operations Office--803-725-1206, FAX
725-5968
Gil Gilyard, Savannah River Operations Office--803-725-7645, FAX
725-7631
Pat Lillard, Kansas City Area Office--816-997-3348, FAX 997-5059
Alan Goetz, Pinellas Area Office--813-541-8114, FAX 541-8370
Gene Gillespie, Portsmouth Site Office--614-897-2001, FAX 897-2982
Jimmie Hodges, Paducah Site Office--502-441-6800, FAX 441-6801
Appendix B--Statement of Availability
Sections 3161 and 3163 of the National Defense Authorization Act
for Fiscal Year 1993 (Public Law 102-484, October 23, 1992) are
available from the Superintendent of Documents, the Government
Printing Office, the Office of the Federal Register, by contacting
Laurel Smith from the Office of Worker and Community Transition,
Department of Energy or on the Office of Worker and Community
Transition Home Page under ``Documents for Review and Comment.''
(http://www.stat-usa.gov/owct.html)
Appendix C--Listing of Defense Nuclear Facilities
The list below reflects facilities receiving funding for Atomic
Energy Defense activities of the Department of Energy, with the
exception of activities under Naval Reactor Propulsion. It is
recognized that these facilities have varying degrees of defense
activities, ranging from a total defense dedication to a very small
portion of their overall activity. This may cause certain
difficulties in implementing the intent of the section 3161
legislation. Regardless, this listing will be used by the Office for
possible application of funding received for defense worker
assistance and community transition purposes.
Kansas City Plant
Pinellas Plant
Mound Facility
Fernald Environmental Management Project Site
Pantex Plant
Rocky Flats Environmental Technology Site, including the Oxnard
Facility
Savannah River Site
Los Alamos National Laboratory
Sandia National Laboratory
Argonne National Laboratory
Brookhaven National Laboratory
Lawrence Livermore National Laboratory
Oak Ridge National Laboratory
Nevada Test Site
Y-12 Plant
K-25 Plant
Hanford Site
Idaho National Engineering Laboratory
Waste Isolation Pilot Project
Portsmouth Gaseous Diffusion Plant
Paducah Gaseous Diffusion Plant
Appendix D--Job Attachment Test
In implementing the objectives of section 3161 of the Act, the
Department recognizes a special responsibility to minimize the impact
of work force restructuring on employees who participated in efforts to
maintain the Nation's nuclear deterrent during the Cold War. September
27, 1991, the day President Bush announced the first unilateral
reduction of the Nation's stockpile, has generally been recognized by
this Department as the end of the Cold War.
In general, employees who meet the job attachment test discussed
below should be eligible for most benefits offered in a work force
restructuring plan. However, the benefits offered at a specific site
should be tailored to specific conditions, to the demographics of the
workers at that site, and must be practicable and reasonable with
respect to budget constraints, contractual provisions, and other
obligations. Thus, those who meet the job attachment test are not
likely to be offered exactly the same benefits at all sites.
To identify employees who helped maintain our nuclear deterrent
during the Cold War, the criteria listed below should be followed at
all sites:
A. Regular Employees
1. Must have been working at a defense nuclear facility on
September 27, 1991;
2. Must have worked full-time (or regular part-time) at a facility
from that date through the date of the 120-day notification; and
3. Must accept a voluntary separation incentive or have been
involuntarily separated.
B. Intermittent Workers, Including Construction Workers
1. Must have worked at a defense nuclear facility on or before
September 27, 1991;
2. Must have worked at a facility within 180 days preceding the
work force restructuring notification;
3. Must have worked at a facility a total time, including time
worked prior to September 27, 1991, equivalent to an employee having
worked full-time from September 27, 1991 to the date of the 120-day
notification, or have actually worked the industry standard of full-
time from September 27, 1991 through the date of the 120-day
notification; and
4. Must have been affected by the announced restructuring within a
reasonable period of time (1 year is suggested). For an intermittent
worker,
[[Page 8603]]
this includes the interruption of a project before its anticipated
completion, or the completion of the assignment or project without
prospect for a follow-on assignment at the site where the employee had
a reasonable expectation of a follow-on assignment.
Appendix E--Example of Form for Establishing Preference in Hiring
Statement of Interest in Maintaining Section 3161 Employment
Eligibility
Name: ----------------------------------------------------------------
First Middle Last
Social Security Number: ______-____-______
Address: -------------------------------------------------------------
Street
----------------------------------------------------------------------
Apartment No.
----------------------------------------------------------------------
City State Zip
Telephone No. (______) ______-______
Date of Lay-off resulting from Work Force Restructuring:
________________ (Month/Day/Year)
Occupational Classifications held: -----------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
I hereby request that my name be placed, or retained, on the
Section 3161 Preference in Hiring List for the (site name) and be
considered for any job opportunities that may arise for which I am
qualified at this or any other Department of Energy site. I also
certify that I have not been terminated for cause from employment by
a Department of Energy Contractor or Subcontractor while performing
work at a Department of Energy site.
----------------------------------------------------------------------
Signature
----------------------------------------------------------------------
Date
----------------------------------------------------------------------
Appendix F--Sample Release for Use in Work Force Restructuring
Programs
Voluntary Separation Payment Program General Release and Waiver
This Voluntary Separation Payment Program, General Release and
Waiver (``Agreement'') is entered into by and between ____________
(``Employee'') and ____________ (``Employer''), as part of
Employee's voluntary election to terminate employment with the
Employer.
In Exchange for the Promises Set Forth Below, the Parties Agree
as Follows:
1. Employee voluntarily terminates his/her employment with
Employer effective ____________, 1995. Employee agrees not to seek
employment with or become employed at the ____________ Site by the
Employer or any other future or current contractor or subcontractor
at the Site for a period of ________ year(s) from the date of
Employee's resignation. This includes but is not limited to
temporary employment service contracts, general task order
assignments, indefinite quantity contracts, basic ordering
agreements, and consultant contracts. However, this does not
preclude Employee from employment with a company providing supplies,
equipment, materials, or commodities to the Site under a fixed-price
contract or purchase order.
2. Employee agrees that the Employer has no obligation to
reemploy Employee in the future, and Employee waives any recall,
rehire, or rehire preference rights, such as those that may arise
under Section 3161 of the National Defense Authorization Act for
Fiscal 1993. Employee agrees to perform all steps required by
Employer's policies and procedures at the separation of his/her
employment.
3. Except as set forth in paragraph 4 below, Employee, on behalf
of himself/herself and any person or entity entitled to sue on
Employee's behalf, waives and releases Employer, its parents,
subsidiaries, and affiliates, the Department of Energy, and their
employees, officers, directors, shareholders, agents, and successors
from any causes of action or claims, whether known or unknown, that
arise out of the Employee's resignation and separation of employment
with Employer and any causes of action or claims that arise out of
Employee's employment with Employer, up to and including the date of
Employee's resignation, under any federal, state or local law,
including but not limited to the Age Discrimination in Employment
Act, the Older Workers Benefit Protection Act of 1990, Title VII of
the 1964 Civil Rights Act, the Equal Pay Act, the Family and Medical
Leave Act, the Employee Retirement Income Security Act, and the
Americans with Disabilities Act, or applicable state or local law.
Employee will not assert any claim or cause of action released under
this agreement in any administrative or judicial proceeding.
However, Employee does not waive:
(i) Any causes of action or claims that arise out of Employee's
employment with Employer, up to and including the date of Employee's
resignation, that have been asserted in writing and filed with the
appropriate agency or court prior to the date on which this Program
was announced,\1\
(ii) Any rights or claims that may arise after the date this
Agreement is executed,
(iii) Any claims relating to pension or retiree health benefits
that currently may be accrued under the Company's standard
retirement program,
(iv) Any claims under any applicable state worker's compensation
laws, or
(v) Any claims for occupational injuries or illnesses arising
from Employee's employment with Employer that are not known or
reasonably knowable by the Employee at the time of the execution of
this Agreement.
5. In exchange for Employees' voluntary separation and execution
of this Agreement, Employer will give Employee the consideration and
benefits outlined in the description attached to this Agreement. The
identification number or other designation for the document
describing the benefits constituting consideration for this
Agreement should be inserted at this point.\2\
6. If Employee becomes employed as prohibited in paragraph 1 or
otherwise violates any provision of this Agreement, then, in
addition to any other remedies Employer has under this Agreement,
Employer may require Employee to repay payments or other benefits
under this Agreement, and Employee agrees to such repayment.
7. Employee has been advised to consider this Agreement and to
consult with an attorney of his/her choice, and Employee has had the
opportunity to do so. Employee has had the right to consider this
Agreement for a period of at least forty-five (45) days prior to
entering into this Agreement. Employee has the right to revoke this
Agreement for a period of seven (7) days following execution of this
Agreement by giving written notice to the local Human Resources
representative. If Employee revokes the Agreement, it shall not be
effective and enforceable and Employee will not receive any of the
benefits described in paragraph 5. Employee has read and understands
the terms and contents of this Agreement, and Employee freely,
voluntarily, and without coercion enters into this Agreement and
agrees to be bound by its terms.
8. This Agreement constitutes the entire understanding and
agreement of Employee and Employer and can only be modified in
writing agreed to by both parties.
9. Employee has received all of the information required to be
disclosed in these circumstances under the Age Discrimination in
Employment Act regarding who is covered by the Program, the
eligibility factors, the time limits of the Program, the ages and
job titles of everyone eligible for the Program, and the ages of
ineligible employees in the same job classification or
organizational unit.
Please Read This Agreement Carefully. It Contains a Release of
Known and Unknown \3\ Claims as Described in Paragraph 3, Above,
Subject To The Limitations Expressly Set Forth in Paragraph 4.
Agreed to:
----------------------------------------------------------------------
Employee/date
----------------------------------------------------------------------
{Employer}/date
Notes:
1. The issuing organization should insert at this point a
specific date on which the Separation Program involved was first
announced. In determining this date, the issuing organization should
consider the specificity of information provided to the public in
work force restructuring plans issued pursuant to section 3161, as
well as the announcement of the individual separation program
involved.
2. When this Agreement is used in association with early
retirement programs, the following language should be added here:
``Employer reserves the right to provide equivalent benefits in
another form in the unlikely event that any aspect of the Program is
improper under law.''
3. Counsel should check to be sure that this aspect of the Model
Release fully comports with applicable state or local law.
[FR Doc. 96-4401 Filed 3-04-96; 8:45 am]
BILLING CODE 6450-01-P
