The Solidarity Docket
Week of February 5, 2026
This week brings important developments in federal workforce policy, from changes in shutdown guidance to expanding restrictions on civil service protections. Federal labor agencies have resumed operations after a brief funding lapse, and restrictions on telework accommodations are raising new concerns.
Labor Agencies Funded Through End of Fiscal Year 2026
The Federal Mediation and Conciliation Service (FMCS), Federal Labor Relations Authority (FLRA), and Merit Systems Protection Board (MSPB) are now funded through September 30, 2026.
This appropriations measure eliminates the uncertainty that affected these agencies during the continuing resolution and provides a degree of operational stability for labor-management cases moving forward.
Litigants with deadlines that may have been impacted by the brief shutdown should contact the agency or administrative judge their case is before to see if any pending deadlines in their case have shifted.
Federal Employees Lose Clear Guarantee of Shutdown Pay
OPM and OMB have revised guidance to remove previous language that assured furloughed federal employees would receive retroactive pay after a shutdown.
The updated guidance now states that Congress will determine via legislation whether furloughed employees receive pay for shutdown periods. This represents a reversal from the previous OPM guidance, which cited 31 U.S.C. § 1341(c)(2) as establishing a statutory guarantee of retroactive pay.
RIF Moratorium Extended Through February 13 in DHS Funding Bill
The moratorium on mass layoffs of federal workers will continue, for at least a few more days, after Congress passed a stopgap measure funding the Department of Homeland Security.
The bill, approved by Congress on Tuesday, extends language negotiated as part of the November funding deal that prevents the Trump administration from using federal funds to carry out any widespread reductions in force. The moratorium was initially negotiated by Senator Tim Kaine (D-Va.) and will last only until DHS funding runs out on February 13.
The moratorium applies broadly to all civilian positions government-wide, whether permanent, temporary, full-time, part-time, or intermittent, regardless of funding source. This means the protection extends to federal employees at all agencies, not just DHS.
Judge Susan Illston of the U.S. District Court for the Northern District of California in December paused RIFs conducted during the moratorium period through January 30, when the deal was originally expected to expire. Because her opinion cited the clause in the November deal that the DHS stopgap extended, it is possible the court will continue blocking firings through February 13.
Judge Illston's block on firings applies to employees at the Department of Education, General Services Administration, Small Business Administration, State Department, and Department of Defense, among other agencies. You can follow this case with our Litigation Tracker.
The extension is a temporary win for federal employee unions that have sought to permanently extend the moratorium after the Trump administration used a combination of resignation incentives and formal RIFs to cut the federal workforce by approximately 219,000 in 2025.
None of the other appropriations bills passed by Congress contain an extension of the moratorium. Some bills do contain language requiring agencies to maintain adequate staffing and inform Congress prior to initiating a reduction in force. House Minority Leader Hakeem Jeffries (D-N.Y.) said Tuesday that House Democrats would not support another stopgap bill, making a further extension unlikely unless the language is added to the next DHS appropriations bill.
MSPB Rules Tenured Employees Cannot Be Fired Under Probationary Period Rules
The Merit Systems Protection Board ruled that agencies cannot terminate tenured federal employees using probationary period procedures. An MSPB administrative judge ruled that the Cybersecurity and Infrastructure Security Agency (CISA) violated the rights of a tenured employee when they fired him using procedures meant for probationary employees.
CISA (and other agencies) have been relying on executive order rules that say employees are automatically terminated unless the agency sends a letter certifying their employment. But the judge ruled that once the employee’s probationary period ended, he became a tenured employee entitled to full due process protections - which means CISA terminated him too late to use probationary procedures.
This ruling is significant because it establishes that agencies cannot avoid due process requirements by simply delaying termination until after an employee's probationary period ends and then claiming they can still use probationary procedures.
Administration Expands Schedule P-C to Strip Job Protections
The Trump Administration finalized a rule reviving and expanding Schedule P-C, the successor to Schedule F, which strips civil service protections from federal employees in policy-related positions. The rule asserts that longstanding civil service protections are "unconstitutional overcorrections" that limit presidential control over the executive branch. The rule takes effect on or about March 8, 2026.
Employees whose positions are moved into Schedule P-C lose all Chapter 75 adverse action protections, MSPB appeal rights, and statutory prohibited personnel practice coverage. They become at-will employees who can be terminated without cause, advance notice, opportunity to respond, or external review. The rule preserves only internal agency policies against discrimination and retaliation, with no independent enforcement mechanism or MSPB oversight.
Under the rule's procedures, agencies identify positions and petition OPM to recommend them to the President. The President, not OPM, makes the final decision on which positions are moved into Schedule P-C through executive order. Employees retain competitive status and existing student loan repayment and incentive agreements, but are no longer in the competitive service while serving in Schedule P-C positions.
OPM received 40,500 public comments during the rulemaking. Ninety-four percent (94%) opposed the rule. Comments came from current and former civil servants, scientists, Nobel laureates, members of Congress, and national and local unions.
The rule rescinds protections established by the Biden Administration in April 2024, which had defined "policy-influencing" positions as exclusively political appointments, required procedures before moving positions to excepted service, and preserved Chapter 75 coverage even if positions were reclassified.
Federal unions including AFGE, NFFE, and NTEU along with groups like Democracy Forward have filed lawsuits challenging the rule on statutory and constitutional grounds, including violations of Chapter 75, the Civil Service Reform Act, and merit system principles.
Telework Accommodations Under Pressure Across Federal Agencies
Federal employees who rely on telework as a reasonable accommodation are increasingly being denied remote work arrangements they have successfully used for years. Volunteer attorneys with Rise Up report they are speaking with more workers whose agencies are rescinding longstanding telework accommodations despite documented disabilities and no evidence that the accommodations have interfered with job performance.
The trend follows broader administration directives requiring federal employees to return to physical office locations. However, denying telework accommodations raises legal concerns under the Rehabilitation Act, which requires agencies to provide reasonable accommodations unless doing so would impose an undue hardship.
ICE is among the agencies scrutinizing work-from-home permissions for employees with disabilities, part of a continuing trend across government. The targeting of employees with disabilities raises questions about whether agencies are complying with their legal obligations under federal disability law.
Rise Up Volunteer Attorneys Complete 1,000 Hours of Free Legal Consultation
At Rise Up's clinic on Tuesday, co-sponsored by the American Foreign Service Association (AFSA) and Our USAID Community (OUC), volunteer attorneys completed the organization's 1,000th hour of free legal consultation.
This milestone was made possible by Rise Up's team of five staff members and a dedicated volunteer attorney corps of approximately 100 dedicated practitioners who provide legal education and consultation to federal workers facing workplace challenges.
Since its launch in mid-April 2025, Rise Up has connected federal employees with critical legal guidance through virtual clinics, town halls, written resources, and litigation tracking. We do not provide direct legal representation or enter attorney-client relationships, but serve as an essential bridge between workers seeking help and attorneys willing to provide guidance.
Federal workers navigating adverse actions, EEO complaints, grievances, or other legal challenges can access Rise Up's resources and request consultation through our website.
In solidarity,
Suzanne Summerlin
General Counsel
Rise Up: Federal Workers Legal Defense Network
