Earlier today–on a Saturday afternoon–federal government employees received an email instructing them to “reply to this email with approx. 5 bullets of what you accomplished last week.” The email provided a deadline of 11:59 PM on Monday. A few hours earlier, Elon Musk had previewed the email, commenting that “failure to respond will be taken as a resignation.”
Is it unclear what Musk is trying to do here. One way to interpret the email is as an attempt to humiliate federal employees by making them justify their job–not to their supervisor or agency management, but to some other entity. (The emails were sent from HR@opm.gov.) In doing so, the email worsens morale and may lead to resignations, which advances Musk’s project of shrinking the federal workforce. Another possibility is that the email is a loyalty test, a way of identifying which employees will respond to an unusual request from outside their chain of command.
The email raises several questions. What if an employee is on leave on Monday? What if all of their work is classified?
But the question most pressing for federal employees is whether their job is at risk if they ignore the email. We can’t answer that question definitively. But it might be that the answer is relatively simple: if agency management tells an employee to respond, the employee should do so. Failure to follow such a directive would arguably constitute insubordination. But absent such a directive from within their agency, it seems an employee could not easily be charged with insubordination for ignoring the email, nor could an employee be deemed to have resigned by ignoring it. (On the latter point, see Nick Bednar’s helpful analysis here.) If an employee is instructed by agency leadership to not respond, the employee should follow that instruction as well.
This is because employees generally have an obligation to comply with an “authorized order of a superior officer.” Phillips v. Gen. Servs. Admin., 878 F.2d 370, 373 (Fed. Cir. 1989) (emphasis added). But here, the directive arrived in an unsigned email from HR@opm.gov. It seems unlikely that HR@opm.gov could be deemed any employee’s “superior officer,” at least for employees who do not work at OPM itself.
Of course, this does not mean that employees face no risk if they ignore the email, even if they have not been directed to respond by management within their agency. In the current climate, all federal government employees face a risk of termination, even when there is no legal basis to fire them.
However, it may be that the real challenge posed by the email is to supervisors and agency leaders. Will they instruct their subordinates to respond to the request despite its bizarre and humiliating nature?