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 That email has not been retracted or amended.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