business – Federal Worker Rights

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.

Nearly every day since OPM announced the deferred resignation program, the administration has issued a new document or email seeking to sweeten the deal and convince more employees to resign. With one day until the February 6 deadline, where do things stand?

For one thing, the program was finally challenged in court. Several unions of federal employees argue that OPM violated the Administrative Procedure Act, which requires agencies to follow certain procedures and avoid arbitrary action. The unions say that the program violates the Act because OPM failed to adequately explain the program, provided inconsistent information, made promises it may be unable to keep, and for other reasons. The unions do not appear to ask for the program to be permanently ended, but argue that it should be suspended (or the February 6 deadline should be extended) while OPM attempts to develop an adequate legal justification and explanation for the program.

The suit was filed was filed in Massachusetts, where two of the plaintiff unions are headquartered. It has been assigned to Judge George O’Toole, a Clinton appointee.

The other major development is that OPM issued a formal agreement to govern deferred resignation. Soon after, OPM revised the agreement to address obvious legal deficiencies, while adding a cover memo attempting to assure employees the agreement is legally binding. The quick revision of the agreement is another sign of the sloppiness of the program.

It’s worth taking a close look at OPM’s argument that the agreement is binding, which appears at the bottom of page 1 and continues onto page 2 of the memo. There are several notable aspects of this section.

First, OPM asserts that the agreement is binding in the sense that, “were the government to backtrack on its commitments, an employee would be entitled to request a rescission of his or her resignation.” Even assuming this is true, it falls far short of genuine enforceability. OPM is not saying here that employee would be entitled to recoup the promised benefits if the administration violates the agreement, but merely that employees could rescind their resignation and come back to work. But that option may not be available if, for example, the employee has taken another job. And it’s unclear what would happen if an employee’s position was eliminated after the employee resigned.

Second, OPM cites two legal cases in footnotes, but those cases do not appear to fully support the administration’s claims. For example, OPM cites one case to bolster its statement that “separation
agreements entered into between an agency and its employees are legally binding.” But that case does not involve an employee successfully enforcing a separation agreement against the government. Rather, in that case, employees entered a separation agreement and then sought to withdraw and rescind their resignations. The agency denied withdrawal, relying on a provision stating that withdrawal could only occur upon proof of extreme hardship. The court found the limitation on withdrawal binding on the employee, ruling for the government.

In other words, the case finds only that an agency can hold an employee to the employee’s decision to resign–not that an employee can hold an agency to the promises in a separation agreement.

And the text of the OPM’s deferred resignation agreement does not resolve questions about enforceability. Paragraph 10 of the revised agreement states that agencies can rescind the agreement in their “sole discretion … which shall not be subject to review at the Merit Systems Protection Board (MSPB) or any other forum.” This suggests the agency can decide at any time to revoke the agreement, and the employee can do nothing about it.

Likewise, Paragraph 13 of the revised agreement sets forth a very broad waiver of any legal action related to the worker’s employment or the deferred resignation program. The plain language of this provision appears to make it impossible for an employee to pursue legal action to enforce the agreement. (It also bars the employee from pursuing any other legal action stemming from their employment, like a claim for sexual harassment or improper pay.)

For more information on the legal viability and enforceability of the program, we recommend Nick Bednar’s two detailed analyses at Lawfare. We also recommend that employees consult an attorney if they are thinking of accepting the offer. Updates on the lawsuit challenging the program may be posted on our Bluesky account.

-Danny Rosenthal, partner at James & Hoffman

Not really.

Earlier today, OPM revised its FAQ page regarding the “deferred resignation” program. OPM then emailed the new content to federal employees. The new FAQ page is accessible here. For comparison, the original FAQ page is archived here. Our original analysis of the “deferred resignation” program is here.

OPM is obviously trying to make the program sound more appealing. For instance, the original page said that in “rare cases,” employees would have to continue working after agreeing to resign. Now, in response to a question about whether employees will have to work, OPM simply says “no.”

Likewise, OPM originally acknowledged that agency policies might prevent employees from taking another job prior to their resignation dates. Now, in response to a question about whether employees may get another job, OPM enthusiastically responds, “absolutely!” (This is followed by an assertion that public sector jobs are less productive than private sector jobs.)

And in another attempt to sell the program, the new page says: “You are most welcome [to] stay at home and relax or to travel to your dream destination [after accepting deferred resignation]. Whatever you would like.”

Notably, however, OPM has not published any new formal memos effectuating these changes. OPM’s prior memo remains in effect. It states that employees will be placed on administrative leave after resigning, but makes an exception where agencies decide that the employee needs to continue working to transition their duties. The memo does not waive any agency policies or regulations regarding outside work. It does not guarantee employees the opportunity to go on vacation. It does not establish that employees are protected from termination or RIF after accepting deferred resignation.

Meanwhile, the closest thing to an official description of the program remains the original email to employees and the “deferred resignation letter” set forth in the email. That email has not been retracted or amended.

And OPM has said nothing further to explain the legal basis for the program or how employees can enforce the promises the administration is making. On that point, Nick Bednar has published a helpful discussion of the legal issues raised by the program.

Workers could certainly use the new FAQ page to push back if a manager takes a stance contrary to the FAQ (for example, requiring an employee to work after accepting deferred resignation). On the other hand, a manager could plausibly respond that the FAQ is not an official statement of policy.

The bottom line is that the revised FAQ does not seem to represent a real change to the program, but rather a new strategy for advertising it. Or perhaps a more accurate label would be false advertising.

-Danny Rosenthal, partner at James & Hoffman

Tag: business

Deferred resignation: where things stand with one day left

Does the new FAQ on “deferred resignation” change anything?