UPDATE February 6, 2025: Today’s deadline for accepting deferred resignation has been suspended by a federal judge in Massachusetts. OPM has been directed to notify employees of this development. A further hearing will occur next week.
UPDATE February 5, 2025: We’ve published a new post discussing the latest developments on deferred resignation, including the lawsuit challenging it and OPM’s new memo and agreement.
UPDATE Jan 30, 2025: We have published a separate post on OPM’s new FAQ page about the “deferred resignation” program.
Last night, OPM sent an email to federal employees offering “deferred resignation.” Like many of the administration’s pronouncements, the email was sloppily drafted, making it hard to pin down the specifics of the policy. Indeed, OPM has published an FAQ page and memo that substantially clarify (if not change) the details of the program. Here’s what we know so far.
First, the email itself: After making threats about plans to downsize and reshape the federal workforce, the email sets forth a “deferred resignation letter” that may be submitted by federal employees. The letter states that the employee will resign effective September 30, 2025. In the meantime, the employee will be “exempt from any ‘Return to Office’ requirements.” Further, the employee “will maintain … current compensation and … benefits,” which suggests that employee will not be subject to termination during this period. The employee acknowledges that agencies will “likely make adjustments” prior to the resignation date, which might include “reducing” duties or placing employees on leave. The employee commits to assist the agency with “reasonable and customary tasks and processes to facilitate my departure.”
To summarize, employees agree to resign in exchange for a promise that they may continue working remotely prior to the date of resignation. The deal seems to include some protection from termination prior to resignation, but the letter does not say so explicitly. The employee is not relieved of the obligation to work for the agency until the date of resignation, although agencies may remove duties at their discretion.
Second, OPM published an FAQ page regarding the program. According to the FAQ, employees will not be required to work prior to their resignation date, except in “rare cases.” In fact, the page refers to this period as a “nice vacation.” These points are notably absent from the OPM email and letter, which instead make the somewhat contradictory promise that employees won’t be required to work in person (implying that work may continue remotely). The FAQ page indicates that the resignation letter does not bar an employee from getting another job while on the federal government payroll, but that other policies may prohibit this. (For example, agencies may require prior authorization for outside work.) The page provides some other details as well.
Third, OPM sent a memo to agencies that describes yet a third version of the program. Under this memo, employees who accept deferred resignation should “promptly” be placed on “paid administrative leave.” The only exception is for situations in which the “agency head determines that it is necessary for the employee to be actively engaged in transitioning job duties.”
Fourth, big questions remain regarding the program. To start, who exactly is eligible? While OPM apparently sent the email to all or most of the federal workforce, the program has exclusions. It does not apply to “positions related to immigration enforcement and national security,” a potentially broad category. It also does not apply to “any other positions specifically excluded by your employing agency.” But it’s unclear how employees would know if they have been excluded. Thus, recipients cannot be sure whether they are eligible. USPS employees and military personnel are also excluded.
Another open question is whether the promises in the letter and FAQ are enforceable. What if an employee opts in to the program, but the Government lays them off or stops paying them prior to the resignation date, contrary to the promise that compensation will continue at current levels? Or what if an agency makes all of its resigned employees continue working full time, despite OPM’s statement that work should only occur in “rare cases”?
The email and FAQ page arguably constitute an implied contract that employees could enforce in the Court of Federal Claims under the Tucker Act. But I am not aware of any precedent addressing this issue on similar facts. And it’s not clear that a violation of the policy would give rise to any administrative remedy such as an appeal to the Merit Systems Protection Board.
Further complicating enforcement, the letter and FAQ include vague language with poorly defined exceptions, such as the statement that agencies can exclude “other positions” and that employees will only have to work in “rare cases.” Further, there are multiple documents describing the program with different information about how it works.
Thus, in deciding whether to accept “deferred resignation,” employees need to ask themselves this question: do I trust this administration to follow through on the stated parameters of the program?
This is a preliminary analysis based on information available on the morning of January 29. We will update this page as things develop. Updates will also be posted on our Bluesky feed.
-Danny Rosenthal, partner at James & Hoffman, P.C.