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[quote=Anonymous][quote=Anonymous][quote=Anonymous]Good analysis from an employment law firm.

Legal Questions Surrounding the Trump Administration’s Deferred Resignation Offer:
Navigating the “Fork in the Road”

The short answer is that we continue to believe the Deferred Resignation plan (“Fork Directive”) is an unlawful ultimatum, which raises more questions than answers. Most immediately, we do not believe the deferred resignation offer is enforceable, which could jeopardize employees’ ability to obtain the benefits the Fork Directive claims to provide.

The Office of Personnel Management’s (“OPM”) February 4, 2025, Memorandum on the legality of the deferred resignation program suggests that, “[w]ere the government to backtrack on its commitments, an employee would be entitled to request a rescission of their resignation.” Approval of that request, however, is subject to the employing agency’s discretion—and, as OPM notes, the program’s objective is “to move quickly to consolidate and/or reassign roles and in many cases place employees on administrative leave[,]” either of which “would likely serve as a valid reason to deny recission requests.”

Your agency has the power—and likely would—to deny any request to withdraw a resignation. OPM has circulated a template Agreement* to agencies that can be used to document employee resignations and formalize the government’s agreement to abide by the terms of the deferred resignation program. The most troubling aspects of the Agreement continue to be 1) the power it gives agencies to unilaterally withdraw from the agreement without warning and 2) that it requires federal employees to waive any right to challenge such a withdrawal. The Agreement circulated by OPM includes a waiver provision, ¶ 13, that says the employee is waiving any claim “based on, arising from, or related to Employee’s employment at [Agency] or the deferred resignation offer, including any and all claims that were or could have been brought concerning said matters.” Arguably, this is a waiver of any right to sue to enforce the Agreement. This is particularly significant because the Agreement, while binding on the employee, can be rescinded “in the sole discretion of the . . . Agency Head, which shall not be subject to review at the Merit Systems Protection Board (MSPB) or any other forum[.]” ¶ 10. Thus, the agency could decide to rescind the Agreement prior to September 30, 2025, and terminate the employee, who would have no right to sue to enforce the agreement because any claim regarding that decision has already been waived. Nothing in the Fork Directive and its FAQs prohibits the termination or separation of an employee who accepts deferred resignation.

The program also may violate the Anti-Deficiency Act, the law ensuring that the government does not exceed congressional appropriations. While OPM seems to promise that an employee “who has chosen to participate in the deferred resignation program will not be placed at a disadvantage compared to other employees if congressional appropriations lapse[,]” federal employees’ positions are only funded until March 14, 2025, under the terms of the current continuing resolution. The government’s promise to pay resigning employees past that date would amount to a violation of that law.

OPM guidance also suggests that employees “who are eligible for the deferred resignation offer and are at least age 50 with at least 20 years of creditable Federal service, or any age with at least 25 years creditable Federal service are eligible for [Voluntary Early Retirement Authority (“VERA”)] along with the deferred resignation offer[.]” This is misleading, however, because an agency must first develop a VERA plan to explain why the authority is needed, how it will be implemented, and which employees will be eligible. That plan must then receive approval from OPM before the agency may offer early retirement to its employees. At a minimum, any employee considering the VERA offer should request the written determination authorizing the agency to offer VERA to eligible employees.

Given the circumstances, we can readily understand why this Deferred Resignation proposal is attractive.That attraction assumes, however, that the proposal will be implemented as promised. Because of the differences between what the program promises and what it obligates the government to deliver, we do not believe a good outcome for those employees who accept and take the deferred resignation is likely. In a lawsuit filed on February 4, 2025,** in the U.S. District Court for the District of Massachusetts, the American Federation of Government Employees, AFSCME, and the National Association of Government Employees sued OPM to, among other things, vacate the Fork Directive and remand to OPM “to provide a reasoned basis as required by the [Administrative Procedures Act’s (“APA”)] for the Directive and extend the purported deadline . . . accordingly[.]” We believe federal employees deserve and should demand from OPM and their agencies the explanations and guarantees – presently lacking – that would make this program something to be trusted.

* Language may vary by agency.

** U.S. District Judge George A. O’Toole Jr. paused the deadline for the Trump administration’s Deferred Resignation plan Thursday afternoon (on January 6, 2025) until Monday, January 10, 2025, at 2:00 p.m., when he will hear full argument on the legality of the deferred resignation program.[/quote]

Thanks chatgpt warrior [/quote]

This doesn’t sound like chat gpt [/quote]

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